in the Interest of S.F., a Child

• Court: Court of Appeals of Texas
• Decided: March 7, 2013
• Docket: 13-11-00164-CV
• Status: Published

Opinion

NUMBER 13-11-00164-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF S.F., A CHILD

On appeal from the County Court at Law No. 5 of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellants, D.S., the father of S.F., and S.S., the mother of S.F., appeal a trial

court order terminating their parental rights to their daughter, S.F. The case was tried to a

jury, which determined that the mother: (1) knowingly allowed S.F. to remain in conditions

or surroundings which endangered her physical or emotional well-being; (2) knowingly

placed the child with persons who engaged in conduct which endangered her physical or

emotional well-being; and (3) failed to comply with the provisions of a court order that

specifically established the actions necessary for the mother to obtain the return of the

child who had been in permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of

the child’s removal from the parent under Chapter 262 for the abuse or neglect of the

child. See TEX. FAM. CODE ANN. § 161.001 (1) (D),(E),(O) (West Supp. 2011). The jury

also determined that the father’s parental rights should be terminated because he

knowingly engaged in criminal conduct that resulted in his conviction of an offense,

confinement or imprisonment, and inability to care for the child for not less than two years

from the date of filing the petition. See TEX. FAM. CODE ANN. §161.001(1) (Q) (West

Supp. 2011).

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), the court-appointed

attorneys for both appellants filed briefs and motions to withdraw with this Court, stating

that their reviews of the record yielded no grounds of error upon which an appeal for either

can be predicated. Counsels’ briefs meet the requirements of Anders as they present 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). The Anders procedures are applicable to an appeal from the

termination of parental rights when an appointed attorney concludes that there are no

non-frivolous issues to assert on appeal. In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—

Houston [14th Dist.] 2004, no pet.). Both attorneys have so concluded.

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

Op.] 1978), appellants’ attorneys carefully discussed why, under controlling authority,

there are no reversible errors in the trial court’s judgment. The attorneys informed this

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

appeal; (2) served copies of their briefs and motions to withdraw on appellants; and

(3) informed appellants of their right to review the record and to file pro se responses.

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

252 S.W.3d at 409 n.23. More than an adequate period of time has passed. Appellant

D.S., the father, has not filed a pro se response. See In re Schulman, 252 S.W.3d at

409. Appellant S.S., the mother, filed a letter in response, stating that she is in prison

and hopes to be reunited with her daughter upon her release. The mother notes that the

process by which the department removed her child was a “nightmare.” The mother

stated that the child was supposed to be placed with her mother, but the judge who

signed the order left the bench and his order was not forwarded to the new judge.

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.

75, 80 (1988). We reviewed the entire record, counsels’ briefs, and the letter filed by the

mother, and 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.

3 There is no reversible error in the record. Accordingly, the judgment of the trial court is

affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellants’ attorneys asked this Court for permission

to withdraw as counsel for appellants. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.

App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsels’

motions to withdraw. Within five days of the date of this Court’s opinion, the attorneys

are ordered to send a copy of this opinion and this Court’s judgment to appellants and to

advise them of their right to file a petition for discretionary review. 1 See TEX. R. APP. P.

48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d

670, 673 (Tex. Crim. App. 2006).

GREGORY T. PERKES Justice

Delivered and filed the 7th day of March, 2013.

1 No substitute counsel will be appointed. Should appellants wish to seek further review of this case by the Supreme Court of Texas, they must either retain attorneys to file a petition for review or file a pro se petition for review. Any petition for review must be filed within forty-five days after the date of either this opinion or the last ruling by this Court on all timely filed motions for rehearing or en banc reconsideration. TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of rule 53.2 of the Texas Rules of Appellate Procedure. See id. at R. 53.2.