in the Interest of K.M.H., a Child

• Court: Court of Appeals of Texas
• Decided: July 6, 2022
• Docket: 10-22-00080-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00080-CV

IN THE INTEREST OF K.M.H., A CHILD

From the 361st District Court Brazos County, Texas Trial Court No. 20-003309-CV-361

MEMORANDUM OPINION

Alexis M. appeals from a judgment that terminated the parent-child relationship

between her and her child, K.M.H. See, generally, TEX. FAM. CODE ANN. § 161.001. Alexis'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 Alexis that counsel had filed

the brief pursuant to Anders and that Alexis had the right to review the record and file a

pro se response on her own behalf. Alexis was also provided with a motion to file with this Court to get a copy of the record in this proceeding, but she has not asked this Court

for a copy of the record. Alexis did not file a pro se response with this Court.

Counsel included a recitation of the procedural history and relevant facts in the

Anders brief and asserted that he 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 sufficiency of the evidence as to each of the predicate acts upon which

the termination was granted as well as best interest. 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, we have

determined that the appeal is frivolous. Accordingly, we affirm the trial court's

judgment.

In the Interest of K.M.H., a Child Page 2 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 his motion to withdraw. We

will deny the motion to withdraw in this proceeding. Consequently, if Alexis desires to

file a petition for review, her 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 K.M.H., a Child Page 3 Before Chief Justice Gray, Justice Johnson, and Justice Davis 1 Affirmed; Motion to withdraw denied Opinion delivered and filed July 6, 2022 [CV06]

1 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.

In the Interest of K.M.H., a Child Page 4