Third Court of Appeals Affirms Termination of Parental Rights Following Anders Review

F.M.H. v. Texas Department of Family and Protective Services, 03-25-00835-CV, March 11, 2026.

On appeal from the 98th District Court of Travis County, Texas.

Synopsis

The Third Court of Appeals affirmed two termination decrees after conducting an independent Anders review of the record. Following a bench trial where the mother failed to appear and evidence established a total failure to engage in court-ordered services alongside significant endangerment and drug use, the court concluded that no arguable grounds for appeal existed and the appeals were wholly frivolous.

Relevance to Family Law

For the Texas family law practitioner, this memorandum opinion reinforces the robust finality of termination decrees when a parent fails to satisfy the technical and substantive requirements of a service plan. Specifically, it highlights the appellate court’s reliance on “zero effort” benchmarks by the parent to support findings of endangerment and constructive abandonment. Litigators should view this as a reminder that when the record contains uncontroverted evidence of non-compliance and the children have reached a state of permanency in stable placements, the Anders procedure effectively shields the trial court’s judgment from substantive reversal. It also underscores the high evidentiary value of removal affidavits and caseworker testimony in establishing the statutory predicates for termination under Section 161.001(b).

Case Summary

Fact Summary

The litigation began in June 2024 following a referral for neglectful supervision of two children, Sarah and Nick. The Department’s removal affidavit alleged the mother frequented hotels to consume crack cocaine, often leaving the children unsupervised or in the care of an eleven-year-old. In one instance, Nick was found roaming the streets alone; when contacted, the mother refused to return and permitted the Department to remove him. A subsequent incident involved the mother and an armed companion attempting to forcibly remove Sarah from a caregiver’s home, which resulted in the mother’s arrest for assault and criminal mischief.

At the bench trial, which the mother did not attend, the Department caseworker testified that although multiple referrals were made for therapy, psychological evaluations, and drug testing, the mother engaged in no services whatsoever. Evidence further showed that Sarah was in a loving, stable placement with a family friend, and Nick was thriving with his maternal aunt. Both placements expressed a desire for permanency through adoption.

Issues Decided

1. Whether the court-appointed appellate counsel’s Anders brief satisfied the professional evaluation requirements to demonstrate that the appeal was frivolous.
2. Whether an independent review of the record supported the trial court’s findings on statutory termination grounds and the best interest of the children.

Rules Applied

• Anders v. California, 386 U.S. 738 (1967) and In re P.M., 520 S.W.3d 24 (Tex. 2016): These cases establish the procedure for court-appointed counsel to withdraw when an appeal is deemed meritless, requiring a professional evaluation of the record and an independent review by the appellate court.
• Texas Family Code § 161.001(b)(1)(D) & (E): Statutory grounds regarding endangerment of the child’s physical or emotional well-being through conditions, surroundings, or conduct.
• Texas Family Code § 161.001(b)(1)(N): Statutory grounds for constructive abandonment when the Department has had temporary managing conservatorship for at least six months and the parent has not regularly visited or maintained significant contact.
• Texas Family Code § 161.001(b)(2): The requirement that termination must be in the best interest of the child.

Application

The court’s analysis centered on the “professional evaluation” of the record provided by appellate counsel and its own subsequent “full examination” to identify any arguable points of error. The legal narrative focused on the mother’s total abdication of parental and rehabilitative responsibilities. The court found that the Department provided ample opportunity for the mother to regain custody through referrals for domestic violence classes, psychological evaluations, and drug testing. However, the caseworker’s testimony—undisputed due to the mother’s absence—confirmed that she failed to utilize any of these resources.

Furthermore, the court evaluated the “best interest” finding through the lens of stability and permanency. The court noted that Sarah and Nick were in placements that provided not only safety but also the prospect of adoption. The contrast between the mother’s violent and drug-involved history and the children’s current stable environments provided a clear trajectory for the court’s application of the law. Because the mother had effectively ceased contact with the Department and the children (visiting Nick only once and Sarah not at all), the court determined that the evidence of endangerment and abandonment was overwhelming, leaving no room for a non-frivolous appellate challenge.

Holding

The Third Court of Appeals affirmed the trial court’s decrees terminating the mother’s parental rights. The court held that after an independent review of the entire record, there were no arguable grounds that could support a reversal of the trial court’s findings.

The court further concluded that the evidence was legally and factually sufficient to support the trial court’s findings under Texas Family Code Section 161.001(b)(1)(D), (E), and (N), and the finding that termination was in the children’s best interest. Consequently, the court agreed with counsel’s assessment that the appeals were wholly frivolous.

Practical Application

For practitioners, this case highlights the tactical importance of documenting “referral fatigue”—the process of providing multiple, documented opportunities for a parent to succeed, which then serves as a foundation for a termination based on non-compliance. When representing the Department or an Intervenor, ensure that every missed drug test and failed appointment is logged and introduced through caseworker testimony. For parent’s counsel, this opinion serves as a stark warning: if a client does not attend trial and fails to engage in services, the Anders protocol is the likely endgame, as the appellate court will find no “arguable” grounds to disturb the trial court’s wide discretion in best-interest determinations.

Checklists

Solidifying the Evidentiary Record for Termination

• Document Referral Logs: Ensure the record contains specific dates and types of referrals (OSAR, psychological, therapy) provided to the parent.
• Establish a “No-Show” History: Introduce testimony or records regarding missed drug tests, which Texas courts frequently equate to positive results or evidence of ongoing endangerment.
• Prioritize Placement Stability: Elicit detailed testimony from CASA and caseworkers regarding the bond between the child and the current placement to satisfy the Holley factors.
• Verify Compliance with In re P.M.: Ensure court-appointed counsel has provided the parent with the Anders brief and notice of their right to file a pro se response.

Navigating the Anders Review Process

• Professional Evaluation: Ensure the Anders brief references specific portions of the record that negate potential issues like jurisdictional defects or evidentiary insufficiency.
• Certification of Notice: Confirm that the record reflects the appellant was informed of their right to review the record and file a pro se brief.
• Independent Review Standard: Anticipate that the Court of Appeals will conduct an independent “cold record” search for any arguable points; therefore, trial counsel must ensure no procedural errors (e.g., faulty service or lack of notice) are present.

Citation

F.M.H. v. Texas Dep’t of Family & Protective Servs., Nos. 03-25-00833-CV & 03-25-00835-CV, 2026 WL ______ (Tex. App.—Austin Mar. 11, 2026, no pet. h.) (mem. op.).

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