in the Interest of N. I. W. v. Department of Family and Protective Services

Opinion

Opinion issued December 20, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00576-CV ——————————— IN THE INTEREST OF N.I.W., A Child

On Appeal from the 315th District Court Harris County, Texas Trial Court Case No. 2016-03594J

MEMORANDUM OPINION This is an appeal from the trial court’s final decree for termination in a suit

brought by the Department of Family and Protective Services (DFPS) to terminate

the parent-child relationship between appellants and N.I.W. (the child). In its decree,

the trial court terminated both parents’ parental rights and appointed DFPS as sole

managing conservator of the child. Both the father, A.L., and the mother, L.I.B.,

filed notices of appeal, and the trial court appointed separate counsel on their behalves to prosecute this appeal. Both the father and the mother’s court-appointed

appellate counsel have moved to withdraw and filed separate Anders briefs, stating

that, in their professional opinions, this appeal is without merit and that there are no

arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S.

Ct. 1396, 1400 (1967).

Anders procedures are appropriate in an appeal from a trial court’s final order

in a parental-rights termination suit. In re K.D., 127 S.W.3d 66, 67 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). Both counsel have certified that they have

delivered a copy of their respective briefs to the father and mother and informed

them of their rights to examine the appellate record and to file responses. See In re

Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Neither parent timely filed

a response and DFPS waived its right to respond.

The briefs submitted by the father’s and mother’s appointed appellate counsel

state their professional opinions 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 briefs meet 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; In re Schulman, 252 S.W.3d

at 406–07.

2 When we receive an Anders brief from an appointed attorney who asserts that

no arguable grounds for appeal exist, we independently determine whether arguable

grounds exist 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.) (mem. op.); 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.). 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 Johnson, 2010 WL 5186806, at *2. Then, the trial court appoints

another attorney to present all arguable grounds for appeal. See id.

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

that the appeal is 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. See id. Here, we have independently reviewed the record and conclude that

there are no arguable grounds for review, that no reversible error exists, and therefore

the parents’ appeals are frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400

(emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); In re A.M., 495

S.W.3d 573, 582 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). Accordingly,

we affirm the trial court’s termination decree.

3 However, we deny both counsels’ motions to withdraw because this is a

parental termination case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (holding

that Anders brief in parental termination case is not “good cause” sufficient to justify

counsel’s withdrawal); In re A.M., 495 S.W.3d at 582. Counsels’ duties to their

clients extend through the exhaustion or waiver of “all appeals.” In re A.M., 495

S.W.3d at 583 (citing TEX. FAM. CODE ANN. § 107.016(2)(B)). If the appellants

choose to pursue a petition for review to the Supreme Court of Texas, his or hers

“appointed counsel’s obligations can be satisfied by filing a petition for review that

satisfies the standards for an Anders brief.” In re P.M., 520 S.W.3d at 27–28.

Panel consists of Justices Keyes, Massengale, and Brown.