J. P. v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: October 21, 2022
• Docket: 03-22-00317-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00317-CV

J. P., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 308133, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

MEMORANDUM OPINION

J.P. (Mother) appeals a final order terminating her parental rights to four

children. 1 An associate judge recommended termination and, following de novo trial to the

bench, the district court rendered judgment finding clear and convincing evidence of two

statutory predicates and that termination is in the best interest of the children. See Tex. Fam.

Code 161.001(b)(1)(N) (constructive abandonment), (O) (failure to comply with provisions

of court order establishing conditions necessary to regain custody), (b)(2). Mother filed

timely appeal. 2

Mother’s court-appointed attorney has filed a motion to withdraw accompanied

by a brief alleging that the appeal is frivolous and without merit. See Anders v. California,

1 We refer to appellant by a pseudonym. See Tex. Fam. Code § 109.002(d). 2 The district court also terminated the rights of the children’s father. He did not appeal. 386 U.S. 738, 744 (1967) (stating that court-appointed counsel who believes appeal is wholly

frivolous should file motion to withdraw “accompanied by a brief referring to anything in the

record that might arguably support the appeal”); In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex.

2016) (per curiam) (approving use of Anders procedure in appeals from termination of parental

rights). The brief meets the requirements of Anders by presenting a professional evaluation of

the record demonstrating that there are no arguable grounds for reversal to be advanced on

appeal. See Anders, 386 U.S. at 744; Taylor v. Texas Dep’t of Protective & Regul. Servs.,

160 S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied) (applying Anders procedure in

parental-rights termination case). Counsel has certified to this Court that she provided Mother

with a copy of the Anders brief, a copy of the motion to withdraw, and notice of her right to file a

brief pro se. Mother did not file a brief, and the Department of Family and Protective Services

has elected not to brief the Court in this matter.

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

proceedings below to determine whether the appeal is wholly frivolous. See Penson v. Ohio,

488 U.S. 75, 80 (1988); In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). After reviewing the

record and the briefing, we find nothing that would arguably support a meritorious appeal. We

therefore agree with Mother’s attorney that this appeal is frivolous and without merit.

Nevertheless, we must deny counsel's motion to withdraw. The supreme court

has held that a parent’s right to counsel extends to “all proceedings in [the Supreme Court of

Texas], including the filing of a petition for review.” P.M., 520 S.W.3d at 27. Accordingly,

counsel’s obligation to Mother has not yet been discharged. See id. If Mother, after consulting

with her attorney, desires to file a petition for review, counsel should timely file with the high

court “a petition for review that satisfies the standards for an Anders brief.” See id. at 27–28.

2 For the reasons stated herein, we affirm the district court’s judgment terminating

Mother’s parental rights and deny counsel’s motion to withdraw.

__________________________________________ Edward Smith, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Affirmed

Filed: October 21, 2022