in the Interest of L. M. F. and E. F., Children

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-19-00291-CV § Appeal from the IN RE: L.M.F. and E.F., § 65th District Court Children. § of El Paso County, Texas § (TC# 2018DCM8024) §

MEMORADUM OPINION

Appellant O.F. (Father) appealed a judgment terminating his parental rights to children

L.M.F. and E.F. We affirm the judgment of the trial court.

Father is represented on appeal by court-appointed counsel who has filed a brief in

accordance with the requirements of Anders v. California, 386 U.S. 738, 741-44 (1967). Court-

appointed counsel has concluded that, after a thorough review of the record, Father’s appeal is

frivolous and without merit.

In Anders, the Supreme Court recognized that counsel, though appointed to represent the

appellant in an appeal from a criminal conviction, had no duty to pursue a frivolous matter on

appeal. Anders, 386 U.S. at 744. Thus, counsel was permitted to withdraw after informing the

court of his conclusion and the effort made in arriving at that conclusion. Id. The procedures set forth in Anders apply to an appeal from a case involving the termination of parental rights when

court-appointed counsel has determined that the appeal is frivolous. See In Interest of P.M., 520

S.W.3d 24, 27 n.10 (Tex. 2016)(per curiam)(recognizing that Anders procedures apply in parental

termination cases); In re J.B., 296 S.W.3d 618, 619 (Tex.App.—El Paso 2009, no pet.); In re

K.R.C., 346 S.W.3d 618, 619 (Tex.App.—El Paso 2009, no pet.).

Counsel’s brief meets the requirements of Anders by containing a professional evaluation

of the record and demonstrating that there are no arguable grounds for reversal of the termination

order. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969); Jackson v. State, 485 S.W.2d

553 (Tex.Crim.App. 1972); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974).

Upon receiving an Anders brief, we are required to conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80

(1988). We have thoroughly reviewed the entire record, including the Anders brief, and we have

found nothing that would arguably support an appeal. We agree with counsel’s professional

assessment that the appeal is frivolous and without merit. Because there is nothing in the record

that might arguably support the appeal, a further discussion of the arguable grounds advanced in

the brief filed by court-appointed counsel would add nothing to the jurisprudence of the state. The

final order terminating Father’s parental rights is affirmed.

In the prayer section of the Anders brief, counsel for O.F. asks this Court to relieve her of

this appointment and allow her to withdraw. Based on Texas Supreme Court precedent, we cannot

do so at this time. Upon determining that counsel has fully complied with the requirements of

Anders and Kelly and finding that the appeal is frivolous following an independent review of the

record, intermediate appellate courts typically grant motions to withdraw in criminal cases.

Granting the motion to withdraw relieves counsel of any obligation to continue with a frivolous

2 appeal. In Interest of D.C., 573 S.W.3d 860, 864 (Tex.App.—El Paso 2019, no pet.). The Texas

Supreme Court has determined, however, that we must deny counsel’s motion to withdraw in this

parental rights termination case because a parent’s statutory right to counsel in suits seeking

termination of parental rights extends to all proceedings in the Texas Supreme Court, including

the filing of a petition for review, and counsel’s “belief” that the appeal is frivolous does not

constitute “good cause” for withdrawal. In Interest of P.M., 520 S.W.3d at 27; see TEX.FAM.CODE

ANN. § 107.016(3)(In a suit by a governmental entity seeking the termination of parental rights,

an attorney appointed to serve as an attorney ad litem for a parent or alleged father continues to

serve in that capacity until the suit is dismissed, the date all appeals from the termination order are

exhausted, or the date the attorney is relieved of his duties or replaced by another attorney after a

finding of good cause is rendered by the court.).

Accordingly, we must deny counsel’s motion to withdraw. See In Interest of P.M., 520

S.W.3d at 27. In the event Father advises appointed counsel that he wishes to challenge our

decision by filing a petition for review, “counsel’s obligations can be satisfied by filing a petition

for review that satisfies the standards for an Anders brief.” Id. at 27-28. Counsel’s motion to

withdraw is denied.

CONCLUSION

We affirm the trial court’s judgment.

February 26, 2020 YVONNE T. RODRIGUEZ, Justice

Before Rodriguez, J., Palafox, J., and McClure, Senior Judge McClure, Senior Judge (Sitting by Assignment)