in the Interest of E.J., J.J., V.J., and C.J.., Children

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00417-CV

IN THE INTEREST OF E.J., J.J., V.J., AND C.J.., CHILDREN

From the 85th District Court Brazos County, Texas Trial Court No. 15-000408-CV-85

MEMORANDUM OPINION

Jennifer and Jason J. appeal from an order that terminated the parent-child

relationship between them and their children, E.J., J.J., V.J., and C.J. See TEX. FAM. CODE

ANN. § 161.001 (West 2014).

Jennifer and Jason's appointed counsel has filed a motion to withdraw and an

Anders brief asserting that the appeal presents no issues of arguable merit. 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 applicable to appeals of orders terminating parental rights. In re

E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order). Counsel advised Jennifer and

Jason that counsel had filed the brief pursuant to Anders and that Jennifer and Jason had the right to review the record and file a pro se response on their own behalf. Counsel

also provided Jennifer and Jason with a copy of the record. Jennifer and Jason did file a

response with this Court.1

Counsel asserts in the Anders brief that counsel reviewed the trial court's

jurisdiction and the record for any potentially meritorious issues, and determined there

is no non-frivolous issue to raise in this appeal. Counsel's brief evidences 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; High v. State, 573 S.W.2d 807, 812-813 (Tex.

Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 406-408 (Tex. Crim. App. 2008).

Upon the filing of the 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 Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991); see also In re G.P., 535 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, as well as

Jennifer and Jason's responses and the Department's responses, we have determined that

1By their own admission, the arguments advanced in Jennifer and Jason's responses are largely outside the record that was before the trial court. This Court will not consider matters outside of the record in our analysis pursuant to Anders. Our review of the record and analysis pursuant to Anders did include the entirety of the clerk's and reporter's records filed with this Court. In the Interest of E.J., J.J., V.J., and C.J.., Children Page 2 the appeal is frivolous. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet.

denied). Accordingly, we affirm the trial court's order of termination.

Counsel has filed a motion to withdraw as has historically been 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 the Interest of P.M., No. 15-0171, 2016 Tex. LEXIS 236, *7-8 (Tex.

Apr. 1, 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. Consequently, if Jennifer and Jason

desire 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 standards for an Anders

brief." See id.

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 In the Interest of E.J., J.J., V.J., and C.J.., Children Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed; Motion to withdraw denied Opinion delivered and filed July 19, 2017 [CV06]

In the Interest of E.J., J.J., V.J., and C.J.., Children Page 4