in the Interest of J.S. and M.J.W., Children

• Court: Court of Appeals of Texas
• Decided: June 1, 2022
• Docket: 10-21-00359-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00359-CV

IN THE INTEREST OF J.S. AND M.J.W., CHILDREN

From the 77th District Court Limestone County, Texas Trial Court No. CPS-366-A

MEMORANDUM OPINION

Appellant’s parental rights to her child, M.J.W., were terminated following a

bench trial. 1 Appellant’s parental rights to her child, J.S., were not terminated. 2 The trial

court appointed J.S.’s maternal grandmother as J.S.’s sole permanent managing

conservator and ordered that Appellant have limited supervised visitation with J.S. 3 The

1 The trial court found by clear and convincing evidence that Appellant had violated Family Code subsection 161.001(b)(1)(O) and that termination was in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b). The trial court found that termination of the parent-child relationship between M.J.W. and her father was not in M.J.W.’s best interest, however; therefore, the parental rights of M.J.W.’s father were not terminated. The trial court appointed M.J.W.’s paternal grandmother as M.J.W.’s sole permanent managing conservator and appointed M.J.W.’s father as possessory conservator.

2 The trial court found by clear and convincing evidence that Appellant had violated Family Code subsection 161.001(b)(1)(O) but that termination was not in the child’s best interest. See id.

3 Likewise, the parental rights of J.S.’s father were not terminated, and the trial court ordered that he have limited supervised visitation with J.S. trial court’s final order stated that Appellant was not appointed possessory conservator

of J.S., however, because such appointment would not be in the child’s best interest and

because the appointment would significantly impair the child’s physical health or

emotional development. 4 Appellant’s appointed trial counsel filed a notice of appeal.5

Appellant’s appointed appellate 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) (applying Anders to termination appeal).

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 carefully discussed why, under controlling authority, there is no reversible

error in the trial court’s “Final Order of Termination and Order in Suit Affecting the

Parent Child Relationship.” Counsel has informed us that he has: (1) examined the

record and found no arguable grounds to advance on appeal and (2) served a copy of the

brief and the appellate record on Appellant. By letter, we informed Appellant of her right

4 The trial court’s final order also stated that J.S.’s father was not appointed possessory conservator of J.S.

because such appointment would not be in the child’s best interest and because the appointment would significantly impair the child’s physical health or emotional development.

5 Neither J.S.’s father nor M.J.W.’s father has appealed.

In the Interest of J.S. and M.J.W., Children Page 2 to review the record and to file a pro se response. 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.

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

proceedings to determine whether the appeal 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

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. 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 “Final Order of Termination and Order in

Suit Affecting the Parent Child Relationship.” We also remind Appellant’s appointed

appellate counsel that if Appellant, after consulting with counsel, desires 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.” In re P.M., 520 S.W.3d

24, 27–28 (Tex. 2016) (per curiam); see In re G.P., 503 S.W.3d 531, 535 (Tex. App.—Waco

2016, pet. denied); see also TEX. FAM. CODE ANN. § 107.016.

In the Interest of J.S. and M.J.W., Children Page 3 MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed June 1, 2022 [CV06]

In the Interest of J.S. and M.J.W., Children Page 4