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

• Court: Court of Appeals of Texas
• Decided: June 6, 2024
• Docket: 10-23-00404-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00404-CV

IN THE INTEREST OF A.R., A CHILD

From the 361st District Court Brazos County, Texas Trial Court No. 22-000102-CV-361

MEMORANDUM OPINION

Appellee, the Texas Department of Family and Protective Services, filed its

Original Petition for Protection of a Child, For Conservatorship, and for Termination in

Suit Affecting the Parent-Child Relationship. Without terminating Mother or Father’s

parental rights, an associate judge rendered its Final Order to Modify in Suit Affecting

Parent-Child Relationship, and appointed the parents as joint managing conservators of

A.R.. The trial court adopted the order of the associate judge. Mother appeals from this

final order.1

1 Father does not appeal. Mother’s court-appointed attorney has now filed a motion to withdraw and an

Anders brief, stating his professional opinion that the appeal is without merit and that

there are no arguable grounds for reversal on appeal. See generally Anders v. California,

386 U.S. 738 (1967); See In re E.L.W., No. 01-17-00546-CV, 2017 Tex. App. LEXIS 11014,

2017 WL 5712545, at *1-4 (Tex. App.—Houston [1st Dist.] Nov. 28, 2017, no pet.) (mem.

op.) (applying Anders procedures to an appeal from a final order in which the trial court

did not terminate parental rights but rendered a final order regarding conservatorship).

Anders Brief

Counsel included a recitation of facts in his brief and discussed why, under

controlling authority, there is no reversible error in the trial court’s Final Order to Modify

in Suit Affecting Parent-Child Relationship. See In re Schulman, 252 S.W.3d 403, 406 n.9

(Tex. Crim. App. 2008). Counsel has also informed us that he served Mother with a copy

of his brief, informed Mother of her right to examine the appellate record, provided

instructions on how to obtain the appellate record, and notified Mother of her right to file

a pro se response to his Anders brief. See Anders, 386 U.S. at 744; Kelly v. State, 436 S.W.3d

313, 319-20 (Tex. Crim. App. 2014); In re A.S., 653 S.W.3d 298, 299-300 (Tex. App.—Waco

2022, no pet.). Counsel’s brief demonstrates a professional evaluation of the record, and

we conclude that he performed the duties required of appointed counsel. See Anders, 386

U.S. at 744; Schulman, 252 S.W.3d at 406-08. By letter, we also informed Mother of her

In the Interest of A.R., a Child Page 2 right to review the record and to file a response to the Anders brief, but she has not filed

a response.

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

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

75, 80 (1988). Arguments are frivolous when they “cannot conceivably persuade the

court.” McCoy v. Ct. of Appeals, 486 U.S. 429, 436 (1988). We have reviewed the entire

record and counsel's brief and agree that the appeal is frivolous. See Bledsoe v. State, 178

S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Specifically, counsel's brief explains—and our

review of the record confirms—that the final order memorialized the terms of an

agreement reached by the parties during a recess in the final hearing. After the essential

terms of the agreement were read into the record at the final hearing, Mother’s trial

counsel informed the court of Mother’s agreement with the terms, and Mother testified

that she made her decision freely and voluntarily. The trial court approved the terms of

the agreement and found the agreement to be in the best interest of the child. See, e.g., In

re P.H., No. 05-16-00961-CV, 2017 WL 462355, at *1-3 (Tex. App.—Dallas Feb. 2, 2017, no

pet.) (mem. op.) (affirming, in the context of an Anders brief, a final conservatorship order

where trial court found it was in the best interest of the children to follow a Rule 11

agreement.).

In the Interest of A.R., a Child Page 3 Motion to Withdraw

Counsel has also filed a motion to withdraw, 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 re P.M., 520 S.W.3d 24, 27-28 (Tex. 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 brief in his motion to withdraw. We will deny the motion to

withdraw in this proceeding. Counsel’s duty to his client extends through the exhaustion

or waiver of “all appeals.” TEX. FAM. CODE ANN. § 107.016(2)(B). Consequently, if Mother,

after consulting with counsel, desires to file a petition for review to the Texas Supreme

Court, 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.

Conclusion

Having found no meritorious issues presented in this appeal, we affirm the

judgment of the trial court. We deny counsel’s motion to withdraw.

In the Interest of A.R., a Child Page 4 STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed June 6, 2024 [CV06]

In the Interest of A.R., a Child Page 5