In the Interest of S.M., M.M., J.M., and R.M., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 8, 2024
• Docket: 10-24-00121-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-24-00121-CV

IN THE INTEREST OF S.M., M.M., J.M., AND R.M., CHILDREN

From the 361st District Court Brazos County, Texas Trial Court No. 23-001106-CV-361

MEMORANDUM OPINION

The mother’s appointed counsel filed an Anders brief asserting that the appeal

presents no issue of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,

18 L. Ed. 2d 493 (1967). The procedures set forth in Anders v. California are generally

applicable to appeals of judgments that terminate parental rights. In re E.L.Y., 69 S.W.3d

838, 841 (Tex. App.—Waco 2002, order). Counsel advised the mother that counsel had

filed the brief pursuant to Anders and that she had the right to file a pro se response with

this Court. The mother was also advised of her right to review the record prior to filing

a response. The mother did not file a pro se response with this Court.

Counsel included a recitation of the procedural history and relevant facts in the Anders brief and asserted that counsel had reviewed the record for any potentially

meritorious issues, including jurisdictional issues, and determined there are no non-

frivolous issues to raise in this appeal. Counsel's brief discusses the sufficiency of the

evidence as to each of the predicate acts upon which the termination was granted,

including Sections 161.001(b)(1)(D) and (E), as well as best interest. Counsel's brief

includes a professional evaluation of the record, and we conclude that counsel performed

the duties required of appointed counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d 403, 406-408 (Tex. Crim. App. 2008).

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See In re G.P., 503 S.W.3d 531, 536 (Tex. App.—Waco 2016,

pet. denied). Arguments are frivolous when they "cannot conceivably persuade the

court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440

(1988).

Having carefully reviewed the entire record and the Anders brief, we have

determined that the appeal is frivolous. Accordingly, we affirm the trial court's

judgment.

Counsel has filed a motion to withdraw as was historically required in order to

comply with the procedures set forth in Anders and its Texas progeny. However, the

Texas Supreme Court has stated that the lack of an arguable issue and the subsequent

In the Interest of S.M., M.M., J.M., & R.M., Children Page 2 filing of a motion to withdraw and an Anders brief in support may not be considered

"good cause" for purposes of granting the Anders motion to withdraw pursuant to the

Texas Family Code. See In the Interest of P.M., No. 15-0171, 520 S.W.3d 24, 27-28 (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."). Counsel does not set forth

any "good cause" outside of the filing of the Anders brief in his motion to withdraw. We

will deny the motion to withdraw in this proceeding. Consequently, if the mother desires

to file a petition for review, her appellate counsel remains appointed in this case through

any proceedings in the Texas Supreme Court unless otherwise relieved of these duties.

See In re P.M., 520 S.W.3d at 27.

CONCLUSION

Having found the appeal is frivolous, we affirm the judgment of the trial court.

We deny the motion to withdraw as counsel.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed; Motion to withdraw denied Opinion delivered and filed August 8, 2024 [CV06]

In the Interest of S.M., M.M., J.M., & R.M., Children Page 3