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

• Court: Court of Appeals of Texas
• Decided: October 13, 2020
• Docket: 01-20-00406-CV
• Status: Published

Opinion

Opinion issued October 13, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00406-CV ——————————— IN THE INTEREST OF N.J., A CHILD

On Appeal from the 344th District Court Chambers County, Texas Trial Court Case No. 18DCV0405

MEMORANDUM OPINION

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

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

the parent-child relationship between Th.J., M.M. (alleged fathers) and T.J.

(mother) and the child, N.J. In its decree, the trial court terminated all parents’

parental rights and appointed DFPS as sole managing conservator of the child. Th.J., M.M., and T.J. filed notices of appeal, and the trial court appointed Amy

Blythewood to prosecute their appeals. Appellants court-appointed appellate

counsel filed Anders briefs, stating that, in her professional opinion, her clients’

appeals are without merit and there are no arguable grounds for reversal. See

Anders v. California, 386 U.S. 738, 744 (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.). In this case, appellants were served by

publication and their whereabouts are unknown. A defendant who fails to keep his

attorney informed of his current address forfeits the right to receive a copy of the

Anders brief and the right to file a pro se brief. See In re Schulman, 252 S.W.3d

403, 408 n.21 (Tex. Crim. App. 2008). Appellants have not filed a response, and

DFPS has waived its right to respond.

The brief submitted by appellants’ appointed appellate counsel states her

professional opinion that no arguable grounds for reversal exist and that any appeal

would therefore lack merit. See Anders, 386 U.S. at 744. Counsel’s brief meets 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; 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 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 Johnson, 2010 WL 5186806, at *2.

We have independently reviewed the record and conclude that there are no

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

appellants’ appeals are frivolous. See Anders, 386 U.S. at 744 (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 order as to Th.J., MM. and T.J.

As is proper, appellant counsel has not filed a motion 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”

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

counsel’s duties to her clients extend through the exhaustion or waiver of “all

appeals.” In re A.M., 495 S.W.3d at 583 (citing TEX. FAM. CODE § 107.016). If

either Th.J., M.M., or T.J. chooses to pursue a petition for review to the Supreme

Court of Texas, “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.

We affirm the trial court’s order terminating Th.J’s, M.M.’s, and T.J.’s

parental rights to the child, N.J.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Hightower and Adams.