in the Interest of J.N.C., a Child

• Court: Court of Appeals of Texas
• Decided: December 18, 2019
• Docket: 10-19-00221-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00221-CV

IN THE INTEREST OF J.N.C., A CHILD

From the County Court at Law Hill County, Texas Trial Court No. CV416-18CCL

MEMORANDUM OPINION

After Appellant’s parental rights to her child, J.C., were terminated following a

jury trial,1 Appellant’s appointed appellate counsel filed a notice of appeal.2 Appellant’s

counsel has now filed an Anders brief, asserting that he diligently reviewed the record

and that, in his opinion, the appeal is frivolous. See 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) (per curiam) (applying Anders to termination appeal).

1 Pursuant to the jury’s finding, the trial court signed an order of termination, finding by clear and convincing evidence that Appellant had violated Family Code subsections 161.001(b)(1)(D), (E), (N), (O), and (Q) and that termination was in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b).

2 The parental rights of the child’s father were also terminated, but he has not appealed. Counsel’s brief meets the requirements of Anders; it presents 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 of error if counsel finds none, but it must

provide record references to the 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). Appellant’s

counsel has 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; (2) served a copy of the

brief, motion to withdraw, and appellate record on Appellant; and (3) informed

Appellant of her right to review the record and to file a pro se response.3 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 Schulman, 252 S.W.3d at 408-09. Appellant has not filed a pro se

response and has not raised any arguable issues.

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 349-50, 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

3 The Texas Court of Criminal Appeals has held that “’the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, order) (per curiam)).

In the Interest of J.N.C., a Child Page 2 U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 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.4 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 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. Accordingly, we affirm the trial court’s order of termination.

We deny counsel’s motion to withdraw in accordance with In re G.P., 503 S.W.3d

531, 534-36 (Tex. App.—Waco 2016, pet. denied). If Appellant, after consulting with

counsel, desires to file a petition for review, Appellant’s appellate 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 In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per

curiam); see also TEX. FAM. CODE ANN. § 107.016.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed December 18, 2019 [CV06]

4 In this proceeding, Appellant did not challenge Family Code subsections 161.001(b)(1)(D) or (E). Therefore, the Texas Supreme Court’s recent decision in In re N.G., 577 S.W.3d 230 (Tex. 2019), does not require us to review those grounds for termination. See In re E.K., No. 10-19-00070-CV, 2019 WL 3489132 (Tex. App.—Waco Jul. 31, 2019, pet. filed) (mem. op.).

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