in the Interest of K. M. A. and A. S. A. v. Department of Family and Protective Services

Opinion

Opinion issued December 5, 2013

In The Court of Appeals For The First District of Texas ____________

NO. 01-13-00620-CV ____________

IN THE INTEREST OF K.M.A. AND A.S.A., CHILDREN

On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 2010-04090J

MEMORANDUM OPINION The trial court terminated appellant Jessica Anderson’s parental rights to

K.M.A. and A.S.A., her children. Appellant’s court-appointed appellate counsel

has filed a motion to withdraw along with a brief stating his professional opinion

that the appeal is without merit and that there are no arguable grounds for reversal.

See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). We have reviewed the record and, having found no reversible error, we grant counsel’s motion to

withdraw and affirm the trial court’s judgment.

Anders procedures are appropriate in parental-rights termination cases. In re

K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An

attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In re

Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney

finds a case to be wholly frivolous, his obligation to his client is to seek leave to

withdraw. Id. Counsel’s obligation to the appellate court is to assure it, through an

Anders brief, that, after a complete review of the record, the request to withdraw is

well-founded. Id. Here, counsel has certified that he delivered a copy of the brief

to appellant and informed appellant of her right to examine the appellate record

and to file a response. See Schulman, 252 S.W.3d at 408.

The brief submitted by appellant’s appointed appellate counsel states his

professional opinion that no arguable grounds for reversal exist and that any appeal

would therefore lack merit. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

Counsel's brief meets the minimum Anders requirements by presenting a

professional evaluation of the record and stating why there are no arguable grounds

for reversal on appeal. See id. at 744, 87 S.Ct. at 1400; Schulman, 252 S.W.3d at

409 n.23. This Court notified appellant of her right to review the record and to file

a pro se response. Appellant did not file a response.

2 When we receive an Anders brief from an appellant’s appointed attorney

who asserts that no arguable grounds for appeal exist, we must determine that issue

independently by conducting our own review of the entire record. Johnson v.

Dep’t of Family & Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806, at

*1 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.); see In re K.D., 127

S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.]

2004, no pet.).

Thus, our role in this appeal is to determine whether arguable grounds for

appeal exist. See id. at 827. If we determine that arguable grounds for appeal

exist, we abate the appeal and remand the case to the trial court to allow the

appointed attorney to withdraw. See id. Then, the trial court appoints another

attorney to present all arguable grounds for appeal. See id. “Only after the issues

have been briefed by new counsel may [we] address the merits of the issues

raised.” Id.

On the other hand, if our independent review of the record leads us to

conclude that the appeal is wholly frivolous, we may affirm the trial court's

judgment by issuing an opinion in which we explain that we have reviewed the

record and find no reversible error. Id. Although we may issue an opinion

explaining why the appeal lacks arguable merit, we are not required to do so. See

Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). Appellant may

3 challenge the holding that there are no arguable grounds for appeal by petitioning

for review in the Supreme Court of Texas. See id. at 827 & n.6.

Following Anders, we have reviewed the record and counsel’s Anders brief.

We conclude that no reversible error exists. Consequently, we affirm the judgment

of the trial court and grant counsel’s motion to withdraw.1 Attorney Stephen M.

Pierce must immediately send the notice required by Texas Rule of Appellate

Procedure 6.5(c) and file a copy of the notice with the Clerk of this Court. See

TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Chief Justice Sherry Radack, and Justices Bland and Huddle.

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and notify appellant that she may, on her own, pursue a petition for review in the Supreme Court of Texas. In re K.D., 127 S.W.3d at 68 n. 3. 4