In the Interest of L.S.H., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 21, 2023
• Docket: 10-23-00125-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00125-CV

IN THE INTEREST OF L.S.H., A CHILD

From the 13th District Court Navarro County, Texas Trial Court No. D21-30042-CV

MEMORANDUM OPINION

Mother appeals from a final order terminating her parental rights to her child—

L.S.H. Counsel for Mother has filed an Anders brief asserting that she diligently reviewed

the record and that, in her opinion, the appeal is frivolous.1 See generally 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,

1 In the prayer section of her Anders brief, counsel for Mother indicated that contemporaneously with filing this brief, she would file a motion to withdraw. However, counsel did not file a separate motion to withdraw. This is the appropriate way to handle a frivolous appeal involving the termination of parental rights because counsel’s representation of Mother continues after this appeal under section 107.016(2) of the Texas Family Code. See TEX. FAM. CODE ANN. § 107.016(2); see also In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam); In re G.P., 503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet. denied). 841 (Tex. App.—Waco 2002, order) (applying Anders to appeals from the termination of

parental rights).

Counsel’s brief meets the requirements of Anders by presenting 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 or error if counsel finds none, but it must

provide record references to 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). Counsel

for Mother has carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s order of termination. Counsel has informed us that

she has: (1) examined the record and found no arguable grounds to advance on appeal

and (2) served Mother with a copy of the brief and instructions on how to obtain the

record. By letter, Mother’s attorney informed Mother of her right to review the record

and to file a response to the Anders brief, but she has not done so. 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 In re Schulman, 252 S.W.3d at 408-09.

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, 351, 102 L. Ed. 2d 300 (1988). An appeal is “wholly frivolous” or

In the Interest of L.S.H., a child Page 2 “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. 1985, 1902, 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.

We therefore affirm the trial court’s order of termination. We also remind

Mother’s appointed appellate counsel that if Mother, 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 standard for an Anders

brief.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam); see also TEX. FAM. CODE

ANN. § 107.016; In re G.P., 503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet. denied).

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed September 21, 2023 [CV06]

In the Interest of L.S.H., a child Page 3