in the Interest of Y.B., a Child

• Court: Court of Appeals of Texas
• Decided: November 30, 2016
• Docket: 10-16-00246-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00246-CV

IN THE INTEREST OF Y.B., A CHILD

From the 85th District Court Brazos County, Texas Trial Court No. 14-000579-CV-85

MEMORANDUM OPINION

After Appellant’s parental rights to her child, Y.B., were terminated following a

bench trial,1 Appellant’s appointed appellate counsel filed a notice of appeal.2

Appellant’s counsel has now filed an Anders brief and a motion to withdraw. Counsel

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

frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re

1Appellant’s rights were terminated under Family Code sections 161.001(b)(1)(D), 161.001(b)(1)(E), and 161.001(b)(1)(N).

2 The parental rights of the child’s father were also terminated, but he has not appealed. E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (applying Anders to termination

appeal).

Counsel’s brief meets the requirements of Anders; 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.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Appellant’s

counsel has carefully discussed why, under controlling authority, there is no reversible

error in the trial court’s order of termination. Counsel has informed us 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) informed

Appellant of her right to obtain a copy of the record and of her 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; High

v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252

S.W.3d at 409 n.23. Appellant did not file a pro se response.

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, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

In the Interest of Y.B. Page 2 U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988).

We have reviewed the entire record and counsel’s brief 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. Accordingly, we affirm the trial court’s

order of termination.

We deny counsel’s motion to withdraw in accordance with In re G.P., No. 10-16-

00068-CV, 2016 WL 5417458, at *3-4 (Tex. App.—Waco Sept. 28, 2016, no pet. h.). If

Appellant, after consulting with counsel, desires to file a petition for review, Appellant’s

appellate 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.”3 See In re P.M., No.

15-0171, 2016 WL 1274748, at *3 (Tex. Apr. 1, 2016).

REX D. DAVIS Justice

3 We do not address whether counsel’s duty requires the filing of a petition for review or a motion for rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders proceedings. In the Interest of Y.B. Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 30, 2016 [CV06]

In the Interest of Y.B. Page 4