D. N. v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: January 26, 2023
• Docket: 03-22-00601-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00601-CV

D.N., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY NO. 21-FL-132, THE HONORABLE THOMAS NATHANIEL STUCKEY, JUDGE PRESIDING

MEMORANDUM OPINION

Mother appeals the trial court's final order terminating her parental rights to her

children. 1 See Tex. Fam. Code § 161.001. After a bench trial, the trial court found by clear and

convincing evidence that statutory grounds for terminating her parental rights existed and that

termination of those rights was in the children’s best interest. Mother’s rights were terminated to

D.L and M.L., III, based on (D) (Endangering Conduct Provision), (E) (Endangering Conditions

Provision), and (O) (Ordered Services Provision) statutory grounds and her rights to F.L. were

terminated based on (K) (Voluntary Relinquishment Provision) grounds. See id.

§ 161.001(b)(1)(D), (E), (K), (O) and (b)(2).

1 For the children’s privacy, we will refer to them by aliases D.L., F.L., and M.L., III, and to their family members by their relationships to them. See Tex. R. App. P. 9.8. The parental rights of the children’s father also were terminated in the order of termination, but he has not appealed. Appellant’s court-appointed attorney has filed a motion to withdraw 2 supported

by an Anders brief, concluding that the appeal is frivolous and without merit. See Anders

v. California, 386 U.S. 738, 744 (1967); In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex. 2016)

(per curiam) (approving use of Anders procedure in appeals from terminations of parental rights).

The brief meets the requirements of Anders by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced on appeal. See 386 U.S. at

744; Taylor v. Texas Dep’t of Protective & Regul. Servs., 160 S.W.3d 641, 646–47 (Tex. App.—

Austin 2005, pet. denied). Appellant’s counsel has certified to this Court that he has provided

Mother with a copy of the Anders brief and motion to withdraw and advised her of her rights to

examine the appellate record and to file a pro se brief. To date, Mother has not filed a pro se

brief. The Department of Family and Protective Services has not filed a response to the

Anders brief.

Upon receiving an Anders brief, we must conduct a full examination of the record

to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988);

Taylor, 160 S.W.3d at 647. We have conducted an independent review of the entire record,

including the Anders brief submitted on Mother’s behalf. We have found nothing in the record

that might arguably support an appeal, and we agree the appeal is frivolous and without merit.

We have specifically reviewed the trial court’s findings as to Mother under subsections (D)

and (E) of Family Code section 161.001(b)(1), and we have found no nonfrivolous issues that

2Counsel has also styled his motion as a “motion to substitute counsel,” but he has not provided any alternate counsel to be substituted with, and the basis for substitution is just a reformulation of his basis for withdrawal: that counsel believes his client has no nonfrivolous grounds to seek further review. See In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (per curiam) (explaining that “counsel’s belief that the client has no grounds to seek further review,” without more, cannot be the basis for withdrawal).

2 could be raised on appeal with respect to those findings. See In re N.G., 577 S.W.3d 230, 237

(Tex. 2019) (per curiam). Accordingly, we affirm the trial court’s order terminating Mother’s

parental rights.

However, the Supreme Court of Texas has held that the right to counsel in suits

seeking the termination of parental rights extends to “all proceedings in the Supreme Court of

Texas, including the filing of a petition for review.” In re P.M., 520 S.W.3d 24, 27 (Tex. 2016)

(per curiam). Accordingly, counsel’s obligation to Mother has not yet been discharged. See id.

If after consulting with counsel Mother desires to file a petition for review, her counsel should

timely file with the Supreme Court “a petition for review that satisfies the standards for an

Anders brief.” See id. at 27–28. Counsel's motion to withdraw therefore is denied.

__________________________________________ Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Affirmed

Filed: January 26, 2023