In the Interest of E.L.Y.

69 S.W.3d 838, 2002 Tex. App. LEXIS 2234
CourtCourt of Appeals of Texas
DecidedMarch 27, 2002
DocketNo. 10-01-180-CV
StatusPublished
Cited by130 cases

This text of 69 S.W.3d 838 (In the Interest of E.L.Y.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of E.L.Y., 69 S.W.3d 838, 2002 Tex. App. LEXIS 2234 (Tex. Ct. App. 2002).

Opinions

ORDER

PER CURIAM.

A jury recommended that Roxanne Yo-vanovitch’s parental rights be terminated with respect to her two-year-old daughter E.L.Y. The court rendered judgment in accordance with the verdict, and Yovano-vitch appealed.

Yovanovitch’s counsel has tendered a document entitled a “Memorandum Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Motion to Withdraw as Attorney on Appeal.” This Court has never addressed the issue of whether our Anders procedures for frivolous appeals should apply in an appeal from a decree of involuntary termination of parental rights. We conclude that these procedures do apply. However, counsel’s “memorandum” does not satisfy his obligations under Anders. Accordingly, we will direct counsel to file a proper Anders brief.

Anders v. California

In Anders, the Supreme Court established a procedure to be followed by court-appointed counsel “if counsel finds [the client’s] case to be wholly frivolous.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498 (1967). As more-recently explained by the Court, “the Anders procedure is ... ‘a prophylactic framework’ that we established to vindicate the constitutional right to appellate counsel.” Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 757, 145 L.Ed.2d 756, 772 (2000) (quoting Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545 (1987)).

[840]*840Under this Court’s Anders decisions, counsel must file a “brief containing a ‘professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.’” In re J.A.H., 986 S.W.2d 39, 40 (Tex.App.-Waco 1998, order), disp. on merits, 996 S.W.2d 933 (Tex.App.-Waco 1999, no pet.) (quoting Johnson v. State, 886 S.W.2d 641, 646 (Tex.App.-Waco 1994, order, pet. ref'd)).

[T]his court will not accept [Anders] briefs unless they discuss the evidence adduced at the trial, point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court’s ruling, and discuss either why the trial court’s ruling was correct or why the appellant was not harmed by the ruling of the court.

Johnson, 885 S.W.2d at 646 (quoting High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978)); accord Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex.Crim.App.1991); see also Tex.R.App. P. 38.1.

In sum, an Anders brief must comply with the requirements of the Rules of Appellate Procedure for an appellant’s brief. See Tex.R.App. P. 38.1. However, we have noted two variants from the appellate rules, both of which exist because counsel has concluded that there is no basis on which to reverse the judgment. First, rather than presenting “points of error” or “issues,” counsel must identify any issues “which might arguably support an appeal or require reversal.” Wilson v. State, 955 S.W.2d 693, 698 (Tex.App.-Waco 1997, order), disp. on merits, 3 S.W.3d 223 (Tex.App.-Waco 1999, pet. ref'd) (quoting Mays v. State, 904 S.W.2d 920, 926-27 (Tex.App.-Fort Worth 1995, no pet.)); accord Sowels v. State, 45 S.W.3d 690, 692 (Tex.App.-Waco 2001, no pet.). Although the designation is not critical, we have variously referred to such issues as “potential issues” and “potential sources of error.” See, e.g., Coronado v. State, 996 S.W.2d 283, 285 (Tex.App.-Waco 1999, order), disp. on merits, 25 S.W.3d 806 (Tex.App.-Waco 2000, pet. ref'd); Wilson, 955 S.W.2d at 698. And second, counsel should not pray for reversal of the judgment in an Anders brief. See Johnson, 885 S.W.2d at 646.

Counsel’s Anders brief “should be accompanied by a ‘Notice of Filing of An-ders Brief ” to “facilitate identification and processing of the matter by the clerk’s office as a possible Anders case.” Sowels, 45 S.W.3d at 693.

In addition, counsel must present this Court with “an adequate basis to determine that counsel has provided a copy of the Anders brief to the appellant and fully informed the appellant of the right to review the appellate record and to file a brief or other response.” Sowels, 45 S.W.3d at 693. Counsel may satisfy this requirement by providing a copy of correspondence counsel has sent to the appellant explaining these matters or by filing “a separate certification confirming compliance with each of the requirements.” Id. at 693-94.

Right to Counsel in Termination Appeals

“The liberty interest ... of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000); accord M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 565, 136 L.Ed.2d 473, 489 (1996); In re B.L.D., 56 S.W.3d 203, 210 (Tex.App.-Waco 2001, pet. filed); In re J.M.S., 43 S.W.3d 60, 63 (Tex.App.-Houston [1st Dist.] 2001, [841]*841no pet.). Therefore, proceedings to terminate parental rights must comply with the Due Process Clause of the Fourteenth Amendment. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982); B.L.D., 56 S.W.3d at 210; J.M.S., 43 S.W.3d at 63; accord In re J.W.T., 872 S.W.2d 189, 194-95 (Tex.1994).

Nevertheless, the Supreme Court of the United States has determined that due process does not grant an absolute right to court-appointed counsel for an indigent parent in a termination proceeding. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-82, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640, 652 (1981). Rather, due process requires appointment of counsel “when warranted by the character and difficulty of the case.” M.L.B., 519 U.S. at 117, 117 S.Ct. at 564, 136 L.Ed.2d at 488. Whether due process requires the appointment of counsel in a particular case must “be answered in the first instance by the trial court, subject, of course, to appellate review.” Lassiter,

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69 S.W.3d 838, 2002 Tex. App. LEXIS 2234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-ely-texapp-2002.