in the Interest of E.J.G., Z.M.E.G., and M.B.G., Children

• Court: Court of Appeals of Texas
• Decided: February 25, 2022
• Docket: 10-21-00217-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00217-CV

IN THE INTEREST OF E.J.G., Z.M.E.G., AND M.B.G., CHILDREN

From the County Court at Law Navarro County, Texas Trial Court No. D18-27516-CV

MEMORANDUM OPINION

Joshua G. appeals from a judgment that terminated the parent-child relationship

between him and his children, E.J.G., Z.M.E.G., and M.B.G. See, generally, TEX. FAM. CODE

ANN. § 161.001. Joshua's appointed counsel has filed a motion to withdraw and an Anders

brief asserting that the appeal presents no issue 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 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 Joshua

that counsel had filed the brief pursuant to Anders and that Joshua had the right to review

the record and file a pro se response on his own behalf. Joshua has also been provided with a copy of the record in this proceeding. Joshua did file a response with this Court,

with a list of potential issues.

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 and determined there are no non-frivolous issues to raise in this appeal. Counsel's

brief discusses the limited nature of the appealable issues due to the judgment being

granted based on a mediated settlement agreement and a voluntary affidavit of

relinquishment. 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; 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 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 Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);

see also 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, as well as the

numerous issues raised in Joshua's response and the Department's reply within the

somewhat limited range of permissible issues in appeals of terminations of parental

rights based on affidavits of relinquishment and mediated settlement agreements, we

In the Interest of E.J.G., Z.M.E.G., and M.B.G., Children Page 2 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 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, 520 S.W.3d 24, 27-28 (Tex. 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 her motion to withdraw. We will

deny the motion to withdraw in this proceeding. Consequently, if Joshua desires to file a

petition for review, his appellate counsel remains appointed in this case through any

proceedings in the 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

In the Interest of E.J.G., Z.M.E.G., and M.B.G., Children Page 3 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed; Motion to withdraw denied Opinion delivered and filed February 25, 2022 [CV06]

In the Interest of E.J.G., Z.M.E.G., and M.B.G., Children Page 4