in the Interest of A.K. and A.J., Children

• Court: Court of Appeals of Texas
• Decided: February 13, 2019
• Docket: 10-18-00306-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00306-CV No. 10-18-00307-CV

IN THE INTEREST OF A.K. AND A.J., CHILDREN IN THE INTEREST OF A.J., A CHILD

From the 74th District Court McLennan County, Texas Trial Court No. 2017-618-3 Trial Court No. 2017-1187-3

MEMORANDUM OPINION

Brandon J. appeals from two judgments that terminated the parent-child

relationship between him and his children, A.J. and A.J.1 See TEX. FAM. CODE ANN. §

161.001 (West 2014). Brandon's appointed counsel has filed a motion to withdraw and an

Anders brief in each appeal asserting that the appeal presents no issues of arguable merit.

See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). The procedures

set forth in Anders v. California are applicable to appeals of judgments that terminate

1Cause No. 10-18-00306-CV involved the termination of parental rights as to two children, A.K. and A.J. Brandon is the father of A.J. only. The children's mother and the father of A.K. did not appeal this decision. parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order). Counsel

advised Brandon that counsel had filed the brief in each proceeding pursuant to Anders

and that Brandon had the right to review the record and file pro se responses on his own

behalf. Counsel also provided Brandon with a copy of the record in each proceeding.

Brandon did file a response with this Court, asking that the children be placed with his

mother and complaining of ineffective assistance of counsel.

Counsel included a recitation of the facts in the Anders briefs and asserted that he

had reviewed the record for any potentially meritorious issues, and determined there are

no non-frivolous issues to raise in these appeals. Counsel's briefs discuss the sufficiency

of the evidence relating to the two grounds on which the termination was granted as well

as the best interest of the children. Counsel's briefs evidence a professional evaluation of

the record, and we conclude that counsel performed the duties required of appointed

counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812-813 (Tex. Crim.

App. 1978); see also In re Schulman, 252 S.W.3d 403, 406-408 (Tex. Crim. App. 2008).

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991); see also In re G.P., 535 S.W.3d 531, 536 (Tex. App.—Waco 2016, pet. denied).

Arguments are frivolous when they "cannot conceivably persuade the court." McCoy v.

Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).

ITIO A.K. and A.J., Children & ITIO A.J., A Child Page 2 Having carefully reviewed in each proceeding the entire record and the Anders

brief, as well as the issues raised in Brandon's response, we have determined that the

appeals are frivolous. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet.

denied). Accordingly, we affirm the trial court's judgments.

Counsel has filed a motion to withdraw in each proceeding as was historically

required in order to comply with the procedures set forth in Anders and its Texas progeny.

However, the Texas Supreme Court has stated that the lack of an arguable issue and the

subsequent filing of a motion to withdraw and an Anders brief in support may not be

considered "good cause" for purposes of granting the Anders motion to withdraw

pursuant to the Texas Family Code. See In the Interest of P.M., No. 15-0171, 2016 Tex.

LEXIS 236, *7-8 (Tex. Apr. 1, 2016) ("[A]n Anders motion to withdraw brought in the court

of appeals, in the absence of additional grounds for withdrawal, may be premature.").

Counsel does not set forth any "good cause" outside of the filing of the Anders briefs in

his motions to withdraw. We will deny the motions to withdraw in these proceedings.

Consequently, if Brandon desire to file petitions for review, counsel is still under a duty

to timely file with the Texas Supreme Court "a petition for review that satisfies the

standards for an Anders brief." See id.

ITIO A.K. and A.J., Children & ITIO A.J., A Child Page 3 CONCLUSION

Having found no meritorious issues presented in these appeals, we affirm the

judgments of the trial court. We deny counsel's motions to withdraw.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Senior Justice Scoggins2 Affirmed; Motions to withdraw denied Opinion delivered and filed February 13, 2019 [CV06]

2The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013). ITIO A.K. and A.J., Children & ITIO A.J., A Child Page 4