In the Interest of D.P., A.P., and V.P., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 12, 2023
• Docket: 10-23-00083-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00083-CV

IN THE INTEREST OF D.P., A.P., AND V.P., CHILDREN

From the 361st District Court Brazos County, Texas Trial Court No. 22-000470-CV-361

MEMORANDUM OPINION

Mother appeals from a final order terminating her parental rights to three

children—D.P., A.P., and V.P. Counsel for Mother 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 generally 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) (applying Anders to appeals from the termination of parental rights).

Counsel’s brief meets the requirements of Anders by presenting 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 or error if counsel finds none, but it must

provide record references to 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). Counsel

for Mother 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 Mother with a copy of the brief and instructions on how to obtain the record.

By letter, Mother’s attorney informed Mother of her right to review the record and to file

a 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 In re 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, 351, 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. 1985, 1902, 100 L. Ed. 2d 440 (1988). We have reviewed the

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

an appeal. 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

In the Interest of D.P., A.P., and V.P., children Page 2 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. We also remind

Mother’s appointed appellate counsel that if Mother, after consulting with counsel,

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 standard for an Anders

brief.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam); see also TEX. FAM. CODE

ANN. § 107.016; In re G.P., 503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet. denied).

Accordingly, we deny counsel’s motion to withdraw.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 12, 2023 [CV06]

In the Interest of D.P., A.P., and V.P., children Page 3