in the Interest of E. L. W. Child v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: November 28, 2017
• Docket: 01-17-00546-CV
• Status: Published

Opinion

Opinion issued November 28, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00546-CV ——————————— IN THE INTEREST OF E.L.W., A CHILD

On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2016-00344J

MEMORANDUM OPINION

This is an accelerated appeal from the trial court’s final order in a suit brought

by the Department of Family and Protective Services (“DFPS”) for the protection of

a child, for conservatorship, and for termination in a suit affecting the parent-child

relationship. In its final order, the trial court did not terminate the parental rights of

the children’s parents; rather, it appointed the child’s paternal grandparents as sole

managing conservators and the child’s parents as possessory conservators of the child, E.L.W. The mother. B.C.B., filed a notice of appeal, and the trial court

appointed counsel on her behalf to prosecute the appeal. The mother’s

court-appointed appellate counsel has filed a motion to withdraw, along with a brief,

stating his professional opinion that the appeal is without merit and that there are no

arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S.

Ct. 1396, 1400 (1967).

Anders procedures are appropriate in an appeal from a trial court’s final order

in a suit brought by DFPS for the protection of a child, for conservatorship, or for

parental-rights termination. In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston

[1st Dist.] 2003, no pet.); see also In re J.E.L., No. 04-15-00634-CV, 2016 WL

1359354, at *1 (Tex. App.—San Antonio Apr. 6, 2016, pet. denied) (mem. op.)

(applying Anders to order in which trial court did not terminate mother’s parental

rights, but appointed maternal grandmother as children’s managing conservator and

children’s parents as possessory conservators). An attorney has an ethical

obligation to refuse to prosecute a frivolous appeal. In re Schulman, 252 S.W.3d

403, 407 (Tex. Crim. App. 2008). If an appointed attorney finds a case to be

wholly frivolous, his obligation to his client is to seek leave to withdraw. Id.

Counsel’s obligation to the appellate court is to assure it, through an Anders brief,

that, after a complete review of the record, the request to withdraw is well-founded.

Id.

2 Here, counsel has certified that he delivered a copy of the brief to the mother

and informed her of her right to examine the appellate record and to file a

response. See id. at 408. This Court also notified the mother of her right to review

the record and to file a pro se response. The mother did not file a response.

The brief submitted by the mother’s appointed appellate counsel states

his professional opinion that no arguable grounds for reversal exist and that any

appeal would therefore lack merit. See Anders, 386 U.S. at 744, 87 S. Ct.

at 1400. Counsel’s brief meets the minimum Anders requirements by presenting

a professional evaluation of the record and stating why there are no arguable

grounds for reversal on appeal. See id. at 744, 87 S. Ct. at 1400; Schulman, 252

S.W.3d at 409 n.23.

When we receive an Anders brief from an appellant’s appointed attorney

who asserts that no arguable grounds for appeal exist, we must determine that issue

independently by conducting our own review of the entire record. Johnson v.

Dep’t of Family & Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806, at

*1 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem. op.); see In re

K.D., 127 S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330 (Tex. App.—Houston

[14th Dist.] 2004, no pet.). Thus, our role in this appeal is to determine whether

arguable grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 826–27

(Tex. Crim. App. 2005). If we determine that arguable grounds for appeal exist,

3 we abate the appeal and remand the case to the trial court to allow the appointed

attorney to withdraw. See id. Then, the trial court appoints another attorney to

present all arguable grounds for appeal. See id. “Only after the issues have been

briefed by new counsel may [we] address the merits of the issues raised.” Id. at

827.

On the other hand, if our independent review of the record leads us to

conclude that the appeal is wholly frivolous, we may affirm the trial court’s

judgment by issuing an opinion in which we explain that we have reviewed the

record and find no reversible error. See id. at 826–27. Although we may issue

an opinion explaining why the appeal lacks arguable merit, we are not required to

do so. Id. The appellant may challenge the holding that there are no arguable

grounds for appeal by petitioning for review in the Supreme Court of Texas. Id. at

827 & n.6.

We have reviewed the record and, having found no reversible error, we

affirm the trial court’s judgment, but we deny counsel’s motion to withdraw. See In

re P.M., 520 S.W.3d 24, 27 (Tex. 2016); In re A.M., 495 S.W.3d 573, 582 (Tex.

App.—Houston [1st Dist.] 2016, pet. denied). Counsel’s duty to his client extends

through the exhaustion or waiver of “all appeals.” TEX. FAM. CODE ANN.

§ 107.016(3)(B). If the mother wishes to pursue an appeal to the Supreme Court of

4 Texas, “appointed counsel’s obligations can be satisfied by filing a petition for review

that satisfies the standards for an Anders brief.” P.M., 520 S.W.3d at 27–28.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Higley and Bland.