E. L. v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: November 18, 2022
• Docket: 03-22-00462-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00462-CV

E. L., Appellant

v.

Department of Family and Protective Services, Appellee

FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-20-006077, THE HONORABLE CLEVE WESTON DOTY, JUDGE PRESIDING

MEMORANDUM OPINION

E.L. appeals from the trial court’s order terminating her parental rights to her

daughter T.C. See Tex. Fam. Code § 161.001. After a jury trial, the trial court rendered

judgment finding by clear and convincing evidence that several statutory grounds existed for

terminating E.L.’s parental rights and that termination was in the child’s best interest. See id.

§ 161.001(b)(1) (E), (M), (O), (P), (R), (b)(2).

E.L.’s court-appointed counsel has filed a 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 termination of parental rights because it “strikes an important balance between the

defendant’s constitutional right to counsel on appeal and counsel’s obligation not to prosecute

frivolous appeals” (citations omitted)). The brief meets the requirements of Anders by

presenting a professional evaluation of the record and 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 &

Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (applying

Anders procedure in parental-termination case). E.L.’s counsel has certified to this Court that he

has provided her with a copy of the Anders brief and informed her of her right to receive a copy

of the entire appellate record and file a pro se brief. The Department of Family and Protective

Services has filed a response to the Anders brief, waiving its right to file an appellee’s brief. To

date, E.L. has not filed a pro se brief.

We have conducted a full examination of all of the proceedings to determine

whether the appeal is wholly frivolous, as we must when presented with an Anders brief. See

Penson v. Ohio, 488 U.S. 75, 80 (1988). We have specifically reviewed the trial court’s findings

as to E.L. under part (E) of subsection 161.001(b)(1) of the Family Code, and we have found no

non-frivolous issues that could be raised on appeal with respect to that finding. See In re N.G.,

577 S.W.3d 230, 237 (Tex. 2019) (explaining due process and due course of law considerations

pertaining to terminations under section 161.001(b)(1)(D) or (E) of Family Code). After

reviewing the record and the Anders brief, we find nothing in the record that would arguably

support E.L.’s appeal. We agree with E.L.’s counsel that the appeal is frivolous and without

merit. Accordingly, we affirm the trial court’s order terminating E.L.’s parental rights. We deny

counsel’s motion to withdraw.1

1 The Texas Supreme Court has held that the right to counsel in suits seeking termination of parental rights extends to “all proceedings [in the Texas Supreme Court], including the filing of a petition for review.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam). Accordingly, counsel’s obligations to E.L. have not yet been discharged. See id. If after consulting with counsel E.L. desires to file a petition for review, her counsel should timely file with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.” See id.

2 __________________________________________ Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: November 18, 2022