in the Interest of D. P. P., D. P., J. L. P. and A. A. P., Children

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-19-00210-CV § Appeal from the IN RE: D.P.P., D.P., J.L.P., and A.A.P., § 65th District Court Children. § of El Paso County, Texas § (TC# 2017DCM7679) §

MEMORANDUM OPINION

Appellants A.P. (Mother) and D.P. (Father) appeal a trial court judgment terminating their

parental rights to children D.P.P., D.P., J.L.P., and A.A.P. We will dismiss the appeal as to A.P.

(Mother) based on her motion for voluntary dismissal, and will affirm the judgment as to D.P.

(Father).

Mother’s Appeal

Appellant A.P. (Mother) has filed a motion to voluntarily dismiss her own appeal. See

TEX.R.APP.P. 42.1(a)(1). The motion is granted, and this appeal is dismissed as to A.P.

Father’s Appeal

Appellant D.P. (Father) is represented on appeal by court-appointed counsel who has filed

a brief in accordance with the requirements of Anders v. California, 386 U.S. 738, 741-44 (1967). Court-appointed counsel has concluded that, after a thorough review of the record, Father’s appeal

is frivolous and without merit.

In Anders, the Supreme Court recognized that counsel, though appointed to represent the

appellant in an appeal from a criminal conviction, had no duty to pursue a frivolous matter on

appeal. Anders, 386 U.S. at 744. Thus, counsel was permitted to withdraw after informing the court

of his conclusion and the effort made in arriving at that conclusion. Id. The procedures set forth in

Anders apply to an appeal from a case involving the termination of parental rights when court-

appointed counsel has determined that the appeal is frivolous. See In re P.M., 520 S.W.3d 24, 27

n.10 (Tex. 2016)(per curiam)(recognizing that Anders procedures apply in parental termination

cases); In re J.B., 296 S.W.3d 618, 619 (Tex.App.—El Paso 2009, no pet.); In re K.R.C., 346

S.W.3d 618, 619 (Tex.App.—El Paso 2009, no pet.).

Counsel’s brief meets the requirements of Anders by containing a professional evaluation

of the record and demonstrating that there are no arguable grounds for reversal of the termination

order. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969); Jackson v. State, 485 S.W.2d

553 (Tex.Crim.App. 1972); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974).

Upon receiving an Anders brief, we are required to conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80

(1988). We have thoroughly reviewed the entire record, including the Anders brief, and we have

found nothing that would arguably support an appeal. We agree with counsel’s professional

assessment that the appeal is frivolous and without merit. Because there is nothing in the record

that might arguably support the appeal, a further discussion of the arguable grounds advanced in

the brief filed by court-appointed counsel would add nothing to the jurisprudence of the state. The

final order terminating Father’s parental rights is affirmed.

2 In the prayer section of the Anders brief, counsel for D.P. asks this Court to relieve her of

this appointment and allow her to withdraw. Based on a recent change in Texas Supreme Court

precedent, we cannot do so at this time. Upon determining that counsel has fully complied with

the requirements of Anders and Kelly and finding that the appeal is frivolous following an

independent review of the record, intermediate appellate courts typically grant motions to

withdraw in criminal cases. Granting the motion to withdraw relieves counsel of any obligation to

continue with a frivolous appeal. In re D.C., 573 S.W.3d 860, 864 (Tex.App.—El Paso 2019, no

pet.). The Texas Supreme Court has determined, however, that we must deny counsel’s motion to

withdraw in this parental rights termination case because a parent’s statutory right to counsel in

suits seeking termination of parental rights extends to all proceedings in the Texas Supreme Court,

including the filing of a petition for review, and counsel’s “belief” that the appeal is frivolous does

not constitute “good cause” for withdrawal. In re P.M., 520 S.W.3d at 27; see TEX.FAM.CODE

ANN. § 107.016(3)(in a suit by a governmental entity seeking the termination of parental rights, an

attorney appointed to serve as an attorney ad litem for a parent or alleged father continues to serve

in that capacity until the suit is dismissed, the date all appeals from the termination order are

exhausted, or the date the attorney is relieved of his duties or replaced by another attorney after a

finding of good cause is rendered by the court).

Accordingly, we must deny counsel’s motion to withdraw. See In re P.M., 520 S.W.3d at

27. In the event Father advises appointed counsel that he wishes to challenge our decision by filing

a petition for review, “counsel’s obligations can be satisfied by filing a petition for review that

satisfies the standards for an Anders brief.” Id. at 27-28.

CONCLUSION

We dismiss this appeal as to A.P. (Mother). We affirm the trial court’s judgment as to D.P.

3 (Father). Counsel’s motion to withdraw is denied.

GINA M. PALAFOX, Justice December 4, 2019

Before Rodriguez, J., Palafox, J., and McClure, C.J. (Senior Judge) McClure, C.J. (Senior Judge), sitting by assignment