In the Interest of A. H., a Child v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: April 3, 2025
• Docket: 01-24-00772-CV
• Status: Published

Opinion

Opinion issued April 3, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00772-CV ——————————— IN THE INTEREST OF A.H., A CHILD

On Appeal from the 306th District Court Galveston County, Texas Trial Court Case No. 22CP0026

MEMORANDUM OPINION

In this accelerated appeal,1 appellant, mother, challenges the trial court’s

order, entered after a bench trial, awarding the godparents of mother’s minor child,

1 See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4. A.H., managing conservatorship of A.H.2 and awarding mother possessory

conservatorship.3 Mother timely filed a notice of appeal.

Mother’s court-appointed counsel, Marcela Ortiz-Taing, filed a motion to

withdraw, along with an Anders brief, asserting that mother’s appeal is without merit

and there are no arguable grounds for reversal. See Anders v. California, 386 U.S.

738 (1967). We affirm the trial court’s judgment but deny counsel’s motion to

withdraw.

Discussion

The procedures set forth in Anders are applicable to an appeal from the trial

court’s order in a suit brought by the Department of Family and Protective Services

for the protection of a child, for conservatorship, or for termination of parental rights

when the appointed attorney concludes that there are no non-frivolous issues to

assert on appeal. See In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.]

2003, no pet.); see also In re Interest G.C.L., No. 01-23-00591-CV, 2024 WL

234744, at *1 (Tex. App.—Houston [1st Dist.] Jan. 23, 2024, no pet.) (mem. op.).

An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re

2 See TEX. FAM. CODE ANN. § 153.005 (appointment of managing conservator); see also id. § 156.101 (grounds for modification of order establishing conservatorship or possession and access). 3 See id. § 153.006 (appointment of possessory conservator); see also id. § 156.101 (grounds for modification of order establishing conservatorship or possession and access).

2 Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If counsel determines the

case is wholly frivolous, the attorney is obligated to withdraw. Id. at 406. Counsel’s

obligation to the appellate court is to assure, through an appellate brief, that a

complete review of the record supports the request to withdraw. Id. at 407.

Counsel’s brief meets the minimum requirements of Anders. In her brief,

mother’s court-appointed counsel presents her professional evaluation of the record

and explains why no arguable grounds exist for reversal. See Anders, 386 U.S. at

744.

Counsel informed the Court that she provided mother with a copy of her brief

and informed her of her right to file a response to counsel’s Anders brief and examine

the appellate record. Counsel also provided mother with a form motion to obtain the

appellate record and the mailing address for the Court.4 See Kelly v. State, 436

S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d at 408.

Mother did not request a copy of the record or file a response to the Anders brief.

4 This Court also notified mother that court-appointed counsel had filed an Anders brief and informed mother that she had a right to examine the appellate record in the appeal and file a response to her counsel’s Anders brief. And this Court provided mother with a form motion to access the appellate record. See Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 408–09 (Tex. Crim. App. 2008).

3 We have conducted our own review of the entire record and counsel’s Anders

brief. See In re K.D., 127 S.W.3d at 67. We agree with counsel’s assessment that

the appeal is frivolous and without merit.

Conclusion

We affirm the order of the trial court. We deny court-appointed counsel’s

motion to withdraw from representing mother. See In re P.M., 520 S.W.3d 24, 27

(Tex. 2016) (stating motion to withdraw brought in court of appeals may be

premature); In re G.C.L., 2024 WL 234744, at *2 (denying appointed-counsel’s

motion to withdraw because counsel’s duty to his client extended through exhaustion

or waiver of all appeals); In re A.M., 495 S.W.3d 573, 582–83 (Tex. App.—Houston

[1st Dist.] 2016, pet. denied) (denying appointed-counsel’s motion to withdraw).

Counsel’s duty to her client extends through the exhaustion or waiver of “all

appeals.” TEX. FAM. CODE ANN. § 107.016(2)(B). Thus, if mother wishes to pursue

an appeal to the Supreme Court of Texas, “appointed counsel’s obligations can be

satisfied by filing a petition for review that satisfies the standards for an Anders

brief.” See In re P.M., 520 S.W.3d at 27–28.

PER CURIAM Panel consists of Chief Justice Adams and Justices Gunn and Guiney.