In the Interest of A.P., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 7, 2023
• Docket: 10-23-00184-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00184-CV

IN THE INTEREST OF A.P., A CHILD

From the 361st District Court Brazos County, Texas Trial Court No. 22-001286-CV-361

MEMORANDUM OPINION

After Appellant’s parental rights to her child, A.P., were terminated following a

bench trial, 1 Appellant’s appointed trial counsel filed a notice of appeal. 2 Appellant’s

appointed appellate counsel has now filed a motion to withdraw and an Anders brief

asserting that he diligently reviewed the record and that, in his opinion, the appeal is

frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re

E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (per curiam) (applying Anders

to termination appeal).

1 The trial court found by clear and convincing evidence that Appellant had violated Family Code

subsections 161.001(b)(1)(D), (E), and (N) and that termination was in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b).

2 The parental rights of A.P.’s father were also terminated, but he has not appealed. Counsel’s brief meets the requirements of Anders; it presents a professional

evaluation demonstrating why there are no arguable grounds to advance on appeal. See

In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief

need not specifically advance ‘arguable’ points of error if counsel finds none, but it must

provide record references to the facts and procedural history and set out pertinent legal

authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Appellant’s

counsel has carefully discussed why, under controlling authority, there is no reversible

error in the trial court’s order of termination. Counsel has informed us that he has: (1)

examined the record and found no arguable grounds to advance on appeal and (2) served

Appellant with a copy of the brief and instructions on how to obtain the appellate record.

By letter, we informed Appellant of her right to review the record and to file a pro se

response to the Anders brief, but she has not done so. See Anders, 386 U.S. at 744, 87 S.Ct.

at 1400; Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); Stafford, 813 S.W.2d

at 510 n.3; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also

Schulman, 252 S.W.3d at 408–09.

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

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 349–50, 102 L.Ed.2d 300 (1988). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). We have reviewed

the entire record and counsel’s brief and have found nothing that would arguably

In the Interest of A.P., a Child Page 2 support an appeal. 3 See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005)

(“Due to the nature of Anders briefs, by indicating in the opinion that it considered the

issues raised in the briefs and reviewed the record for reversible error but found none,

the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”);

Stafford, 813 S.W.2d at 509. We therefore affirm the trial court’s order of termination.

Counsel has filed a motion to withdraw as was historically required 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 Family Code.

See In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (per curiam) (“[A]n Anders motion to

withdraw brought in the court of appeals, in the absence of additional grounds for

3 Appellant’s counsel reviewed the sufficiency of the evidence supporting the trial court’s findings under Family Code subsections 161.001(b)(1)(D) and (E) and determined that it would be frivolous to attack the findings. We conclude that the evidence is sufficient to establish that Appellant violated subsection 161.001(b)(1)(E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam). The evidence here showed that A.P. was three years old at the time of trial in May 2023. On or about June 10, 2022, when the Department officially removed A.P. from Appellant’s care, A.P. had been living with Appellant’s childhood friend for at least four months. Appellant had had little contact with her friend during that time. Appellant then showed up at the friend’s home and wanted to take A.P. with her. The police were called, and Appellant was ultimately not allowed to leave with A.P. because she did not have a car seat for her. Later that day, Appellant was pulled over for having an unsafe vehicle, and THC was discovered in the car. The evidence further showed that after A.P. had been officially removed from Appellant’s care, Appellant threatened A.P.’s caregiver such that the Department became concerned that Appellant “would shoot up the placement with the child in the home.” The Department therefore had to relocate A.P. and A.P.’s caregiver to an undisclosed location. The Department also discovered videos on Appellant’s social media of Appellant attempting to engage in prostitution. Finally, the evidence showed that at the time of trial, Appellant was in the Brazos County Jail and had been detained there since October 2022. Appellant had been charged with committing theft of property valued at $100 or more but less than $750 on or about May 24, 2022. Appellant had been charged with committing possession of a controlled substance, namely THC, in an amount of less than one gram on or about June 4, 2022. Appellant had also been charged with committing criminal trespass on or about October 4, 2022.

In the Interest of A.P., a Child Page 3 withdrawal, may be premature.”). Counsel does not set forth any “good cause” outside

the filing of the Anders brief in his motion to withdraw. We will therefore deny the

motion to withdraw. Consequently, if Appellant desires to file a petition 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.; see also TEX. FAM. CODE

ANN. § 107.016.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed December 7, 2023 [CV06]

In the Interest of A.P., a Child Page 4