in the Interest of R.E.Y., a Child

• Court: Court of Appeals of Texas
• Decided: December 30, 2020
• Docket: 10-20-00235-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00235-CV

IN THE INTEREST OF R.E.Y., A CHILD

From the 74th District Court McLennan County, Texas Trial Court No. 2019-2280-3

MEMORANDUM OPINION

Appellant, R.M.Y., challenges the trial court’s order terminating his parental rights

to his child, R.E.Y. Appellant’s appointed appellate counsel has filed an Anders brief,

asserting that he has diligently reviewed the record and that, in his opinion, the appeal is

frivolous. See generally Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493

(1967); see In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (applying Anders

to termination appeals).

I. ANDERS BRIEF

Pursuant to Anders, appellant’s court-appointed appellate counsel has filed a brief

and a motion to withdraw with this Court, stating that his review of the record yielded no error upon which an appeal can be predicated. Counsel’s brief meets the requirements

of Anders, as it presents a professional evaluation demonstrating why there are no

arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.

Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’

points of error if counsel finds none, but it must provide record references to the facts

and procedural history and set out pertinent legal authorities.” (citing Hawkins v. State,

112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.))); Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), appellant’s counsel has carefully discussed why, under controlling authority, there

are no reversible errors in the trial court’s judgment. Counsel has informed this Court

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

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant; and

(3) provided appellant with a copy of the record and informed him of his right to file a

pro se response. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510

n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Appellant has filed a pro se response

in this appeal.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

In the Interest of R.E.Y., a child Page 2 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record,

counsel’s brief, and appellant’s pro se response 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 requirement of Texas Rule of Appellate Procedure 47.1”);

Stafford, 813 S.W.2d at 509.

III. CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court. In addition, we

remind appellant’s appointed counsel that if appellant, 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 standards for an Anders

brief.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016); see In re G.P., 503 S.W.3d 531, 535 (Tex.

App.—Waco 2016, pet. denied); see also TEX. FAM. CODE ANN. § 107.016. Moreover, we

deny counsel’s motion to withdraw and appellant’s pro se motion to abate this appeal to

file an out-of-time motion for new trial.1 See In re P.M., 520 S.W.3d at 27-28; In re G.P., 503

1Because of an apparent tension, we question the viability of the Anders process as applied to appeals involving the termination of parental rights. See In re G.P., 503 S.W.3d 531, 534-36 (Tex. App.— Waco 2016, pet. denied) (describing, in more detail, the Anders process as applied to termination appeals). The Texas Court of Criminal Appeals has stated that: “An Anders brief may not be filed without a motion to withdraw, as the sole purpose of an Anders brief is to explain and support the motion to withdraw.” In re Schulman, 252 S.W.3d 403, 404 (Tex. Crim. App. 2008); see Anders v. California, 386 U.S. 738, 744, 86 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967); see also Allison v. State, No. 10-19-00375-CR, ___ S.W.3d ___, 2020 Tex. App. LEXIS 8160, at *3 (Tex. App.—Waco Oct. 14, 2020, order). However, as referenced above, section

In the Interest of R.E.Y., a child Page 3 S.W.3d at 535 (“Because appellate counsel’s duty extends beyond this Court’s decision,

we will not require the filing of a motion to withdraw to be filed contemporaneously with

the Anders brief in termination of parental rights proceedings unless counsel believes

good cause exists for the withdrawal for reasons other than the filing of the Anders

brief.”); see also TEX. FAM. CODE ANN. § 107.016.

JOHN E. NEILL Justice

107.016 of the Texas Family Code requires an attorney ad litem for a parent to continue to represent the parent until the earliest of: (1) “the date the suit affecting the parent-child relationship is dismissed”; (2) “the date all appeals in relation to any final order terminating parental rights are exhausted or waived”; or (3) “the date the attorney is relieved of the attorney’s duties or replaced by another attorney after a finding of good cause is rendered by a court on the record.” TEX. FAM. CODE ANN. § 107.016. In a case such as this, an attorney ad litem appointed for a parent has a duty to continue representing the parent until all appeals are exhausted, including appeals to this Court and the Texas Supreme Court. See id. Therefore, the filing of a motion to withdraw in this Court is meaningless and cannot be granted because the terminated parent may still wish to file an appeal with the Texas Supreme Court. See In re G.P., 503 S.W.3d at 535-36. In such an instance, the Anders brief does not explain and support a motion to withdraw, though that is what is required under Anders. See Anders, 386 U.S. at 744, 86 S. Ct. at 1400 (“Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.”); In re Schulman, 252 S.W.3d at 404; see also Allison, 2020 Tex. App. LEXIS 8160, at *3.

Furthermore, this brief analysis does not even take into consideration the fact that the Texas Supreme Court requires appellate courts to “show our work” when a predicate ground under section 161.001(b)(1)(D) or (E) is involved, which, in effect, could convert what was filed as an Anders appeal in a termination case involving (D) and/or (E) predicate grounds into a full-blown decision on the merits outside the context of Anders. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). It is worth noting, however, that this Court has not yet applied this requirement to Anders-based termination appeals. See id.; see also In re E.K., 594 S.W.3d 435, 435 (Tex. App.—Waco 2019, pet. denied) (see concurring note).

In the Interest of R.E.Y., a child Page 4 Before Chief Justice Gray Justice Davis, and Justice Neill (Chief Justice Gray concurring with a note)* Affirmed; motions denied Opinion delivered and filed December 30, 2020 [CV06]

*(Chief Justice Gray concurs in the Court’s opinion and judgment, but does not join footnote one to the opinion. A separate opinion will not issue.)

In the Interest of R.E.Y., a child Page 5