In the Interest of C.L.W. and B.M.W., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 5, 2023
• Docket: 10-22-00380-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00380-CV

IN THE INTEREST OF C.L.W. AND B.M.W., CHILDREN

From the County Court at Law Bosque County, Texas Trial Court No. CV21-309

MEMORANDUM OPINION

The father of C.L.W. and B.M.W. appealed from a judgment that terminated the

parent-child relationship between him and his children. See, generally, TEX. FAM. CODE

ANN. § 161.001. The father’s appointed counsel has filed an Anders brief asserting that

the appeal presents no issue of arguable merit and a motion to withdraw as counsel. 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 generally applicable to appeals of judgments that

terminate parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order).

Counsel advised the father that counsel had filed the brief pursuant to Anders and that

the father had the right to review the record and file a pro se response on his own behalf.

Counsel also stated that she provided the father with the clerk’s and reporter’s records in this proceeding. The father did not file a pro se response with this Court.

Counsel included a recitation of the procedural history and relevant facts in the

Anders brief and asserted that she had reviewed the record for any potentially meritorious

issues, including jurisdictional issues, and determined there are no non-frivolous issues

to raise in this appeal. Counsel's brief discusses the sufficiency of the evidence as to each

of the predicate acts upon which the termination was granted, including Section

161.001(b)(1)(E), as well as best interest. Counsel's brief includes 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; 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 In re G.P., 503 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).

Having carefully reviewed the entire record and the Anders brief, we have

determined that the appeal is frivolous. Accordingly, we affirm the trial court's

judgment.

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, in 2016, the

Texas Supreme Court stated that the lack of an arguable issue and the subsequent filing

In the Interest of C.L.W. and B.M.W., Children Page 2 of a motion to withdraw and an Anders brief in support is not considered to be "good

cause" for purposes of granting the Anders motion to withdraw pursuant to the Texas

Family Code. See In re P.M., No. 15-0171, 520 S.W.3d 24, 27-28 (Tex. 2016). Counsel does

not set forth any "good cause" outside of the filing of the Anders brief in her motion to

withdraw. We will deny the motion to withdraw in this proceeding. Consequently, if

the father desires to file a petition for review, his appellate counsel remains appointed in

this case through any proceedings in the Texas Supreme Court unless otherwise relieved

of these duties. See In re P.M., 520 S.W.3d at 27.

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.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed; Motion to withdraw denied Opinion delivered and filed April 5, 2023 [CV06]

In the Interest of C.L.W. and B.M.W., Children Page 3