in the Interest of M.M., a Child

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00175-CV

IN THE INTEREST OF M.M., A CHILD

On Appeal from the 121st District Court Terry County, Texas Trial Court No. 19075, Honorable Kevin C. Hart, Presiding

September 30, 2013

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

The mother1 appeals the order of the trial court terminating her parent-child

relationship with M.M. and appointing appellee the Texas Department of Family and

Protective Services the child’s permanent managing conservator. The mother’s court-

appointed appellate counsel has filed a motion to withdraw from representation

supported by an Anders2 brief. The mother has filed a pro se response. We will grant

counsel’s motion to withdraw and affirm the order of the trial court.

1 To protect the child’s privacy, we will refer to appellant as the mother and the child by initials. See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2012); Tex. R. App. P. 9.8(b). 2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The trial court’s termination order signed after a hearing contains its findings the

mother voluntarily relinquished her parental rights to M.M. through an affidavit, Tex.

Fam. Code Ann. § 161.001(1)(K) (West Supp. 2012), and termination was in the best

interest of M.M. Id. at § (2). At the hearing, the mother did not challenge the admission

of the affidavit, cross-examine the sole witness for the Department, or otherwise contest

termination.3

Courts of this state, including this court, have found the procedures set forth in

Anders v. California applicable to appeals of orders terminating parental rights. See In

re A.W.T., 61 S.W.3d 87, 88 (Tex.App.--Amarillo 2001, no pet.); see also In re D.E.S.,

135 S.W.3d 326, 329 (Tex.App.--Houston [14th Dist.] 2004, no pet.); Taylor v. Texas

Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex.App.--Austin

2005, pet. denied). In support of her motion to withdraw, counsel certifies she has

conducted a conscientious examination of the record and, in her opinion, the record

reflects no arguable basis to support an appeal. Counsel certifies she has diligently

researched the law applicable to the facts and issues and discusses why, in her

professional opinion, the appeal is frivolous. In re D.A.S., 973 S.W.2d 296, 297 (Tex.

1998). Counsel also has demonstrated she provided a copy of her brief to the mother

and notified her of her right to file a response if she desired. Id. By letter, we also

notified the mother of the opportunity to file a response to her counsel’s brief. And she

filed a response which we have considered in reaching our disposition of counsel’s

motion to withdraw. The argument of the mother, however, depends on evidence

3 Before presentation of the evidence the mother, on the request of counsel, was excused by the trial court from the proceeding. The record is not clear whether she actually left the courtroom.

2 outside the record. We are prohibited from considering such evidence. See Carlisle v.

Philip Morris, 805 S.W.2d 498, 501 (Tex.App.--Austin 1991, writ denied) (“It is

elementary that, with limited exceptions not material here, an appellate court may not

consider matters outside the appellate record”); see generally In re M.S., 115 S.W.3d

534, 546 (Tex. 2003) (concerning portions of trial not recorded by the court reporter and

thus not available for review the Court stated, “this Court--or any appellate court--may

only consider the record presented to it, and we cannot speculate on what might or

might not be in the missing portions of the record”).

We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. Penson v. Ohio, 488 U.S.

75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511

(Tex.Crim.App. 1991). Based on the record, we find the evidence is legally and

factually sufficient to support the predicate ground for termination found by the trial court

and its finding regarding the best interest of the child. Furthermore, we find no

potentially plausible issues which could support an appeal. After reviewing the record,

counsel’s brief, and the mother’s response we agree with counsel that there are no

arguably meritorious grounds for appeal. Accordingly, counsel’s motion to withdraw is

granted and the trial court’s order terminating the parental rights of the mother to M.M.

is affirmed.

James T. Campbell Justice