in the Interest of R.B.M. Jr., a Child

• Court: Court of Appeals of Texas
• Decided: January 26, 2023
• Docket: 02-22-00122-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00122-CV ___________________________

IN THE INTEREST OF R.B.M., JR., A CHILD

On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-692878-20

Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

This appeal arises from a suit affecting the parent–child relationship. Appellant

R.M. appeals the trial court’s order adjudicating that he is not the father of minor

child R.B.M., Jr.1 We will affirm.

II. BACKGROUND

In December 2020, the Department of Family and Protective Services (the

Department) filed its Original Petition in a Suit Affecting the Parent–Child

Relationship naming Appellant as R.B.M., Jr.’s alleged father. In the petition, the

Department requested, among other things, that the trial court determine whether

Appellant is actually R.B.M., Jr.’s father and terminate Appellant’s parental rights, if

any. The trial court appointed an attorney for Appellant. See Tex. Fam. Code Ann.

§ 107.013(a)(3).

In April 2022, the trial court, based on the results of DNA testing, entered an

order adjudicating that Appellant is not R.B.M., Jr.’s father. Having excluded

Appellant as the father2 and having received an affidavit of relinquishment of parental

1 We use initials to refer to the minor child as well as his family members and alleged family members. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2). 2 The trial court appointed Kayla Harrington as attorney ad litem for the missing biological father of R.B.M., Jr. See Tex. Fam. Code Ann. § 107.013(a)(3). However, Harrington filed a report reflecting that she had been unable to locate R.B.M., Jr.’s biological father after a diligent search.

2 rights from the child’s mother, the trial court terminated the parent–child relationship

and awarded permanent managing conservatorship of R.B.M., Jr. to the Department.

Appellant timely appealed.

In August 2022, Appellant’s appointed appellate counsel filed a brief and

corresponding motion to withdraw, stating that he has conducted a professional

evaluation of the record and has concluded that there are no arguable grounds to

support an appeal of the trial court’s order and that the appeal is frivolous. Counsel’s

brief presents the required professional evaluation of the record demonstrating why

there are no reversible grounds on appeal and referencing any grounds that might

arguably support the appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396,

1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003,

order) (holding Anders procedures apply in parental-rights-termination cases), disp. on

merits, No. 2-01-349-CV, 2003 WL 2006583 (Tex. App.—Fort Worth May 1, 2003, no

pet.) (mem. op.). Further, counsel informed Appellant of his right to request the

record and to file a pro se response.3 See Kelly v. State, 436 S.W.3d 313, 318–20 (Tex.

Crim. App. 2014). Appellant has not filed a response. The Department has notified

us that it does not intend to file a response to counsel’s Anders brief.

3 Prior to filing his Anders brief, counsel notified us that he was having difficulty locating Appellant, and his brief indicates that he served it on Appellant by certified mail at his last known address. Given that a party 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 response, In re Schulman, 252 S.W.3d 403, 408 n.21 (Tex. Crim. App. 2008), we hold that counsel complied with his Anders duties in this case.

3 III. DISCUSSION

A. This appeal is frivolous.

In reviewing a brief that asserts an appeal is frivolous and that fulfills the

requirements of Anders, this court is obligated to undertake an independent

examination of the record to determine if any arguable grounds for appeal exist. See

In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied) (citing

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)). Having carefully

reviewed the record and the Anders brief, we conclude that there are no arguable

grounds for appeal; thus, we agree with counsel that Appellant’s appeal is frivolous.

See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). We affirm

the trial court’s order adjudicating that Appellant is not the father of R.B.M., Jr. See

Tex. R. App. P. 43.2(a).

B. Appellant’s appointed counsel remains his attorney.

We deny counsel’s motion to withdraw in light of the Texas Supreme Court’s

decision in In re P.M. because counsel has not shown “good cause” other than his

determination that an appeal would be frivolous. See 520 S.W.3d 24, 27 (Tex. 2016)

(“[A]n Anders motion to withdraw brought in the court of appeals, in the absence of

additional grounds for withdrawal, may be premature.”); cf. In re A.M., 495 S.W.3d

573, 582–83 & n.2 (Tex. App.—Houston [1st Dist.] 2016, pets. denied) (noting that

since P.M. was handed down, “most courts of appeals affirming parental termination

orders after receiving Anders briefs have denied the attorney’s motion to withdraw”).

4 If Appellant wishes to pursue an appeal to the Texas Supreme Court, “appointed

counsel’s obligations can be satisfied by filing a petition for review that satisfies the

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

IV. CONCLUSION

We agree with counsel’s Anders brief that this appeal is frivolous and affirm the

trial court’s judgment.

/s/ Dana Womack Dana Womack Justice

Delivered: January 26, 2023