Opinion
NO. 12-17-00114-CV
02-06-2018
IN THE INTEREST OF C.C. AND Z.C., CHILDREN
APPEAL FROM THE COUNTY COURT AT LAW NO. 2 ANGELINA COUNTY , TEXAS
MEMORANDUM OPINION
R.A. appeals the termination of her parental rights. Her counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1967), and Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
R.A. is the mother and B.C. is the father of C.C. and Z.C. On October 7, 2015, the Department of Family and Protective Services (the Department) filed an original petition for protection of C.C. and Z.C., for conservatorship, and for termination of R.A.'s and B.C.'s parental rights. The Department was appointed temporary managing conservator of the children, and both parents were granted supervised visitation with the children.
B.C.'s appeal of the termination of his parental rights has been delivered by this Court in a separate opinion.
At the conclusion of the trial on the merits, the jury found, by clear and convincing evidence, that R.A. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsections (D), (E), (N), and (O) of Texas Family Code Section 161.001(b)(1). The jury also found that termination of the parent-child relationship between R.A., C.C., and Z.C. is in the children's best interest. Based on these findings, the trial court ordered that the parent-child relationship between R.A., C.C., and Z.C. be terminated. This appeal followed.
In a prior memorandum opinion of this court, we abated the appeal, remanded the case to the trial court, and ordered the trial court to appoint new counsel to represent R.A. for purposes of determining whether C.C. and Z.C. were Indian children pursuant to the Indian Child Welfare Act (ICWA). On October 5, 2017, the Department's attorney sent proper notice to the Secretary of the Interior, ICWA, and to the Bureau of Indian Affairs, stating that B.C. testified that the Indian tribe he could be affiliated with was named "Azteca." According to the Department's letter, that tribe is not federally recognized as eligible for services or, more particularly, is not an "Indian tribe" pursuant to the ICWA. See 25 U.S.C.A. § 1903(8) (Westlaw through L. No. 115-90). Moreover, B.C.'s mother stated that there were no active or registered tribal family members. Thus, on October 31, 2017, the trial court found that C.C. and Z.C. are not Indian children within the meaning of the ICWA. See 25 U.S.C.A. § 1903(4) (West current through P.L. 115-90); In re T.R., 491 S.W.3d 847, 852 (Tex. App.—San Antonio 2016, no pet.) (stating that ICWA only applies to recognized tribes). In accordance with our prior opinion, new appellate counsel was then ordered to review the record and file a brief for R.A. in this appeal if the trial court determined that C.C. and Z.C. were not Indian children.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant's new appointed appellate counsel filed a brief in compliance with Anders and Gainous , stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. This court has previously held that Anders procedures apply in parental rights termination cases when the Department has moved for termination. See In re K .S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.). From our review of counsel's brief, it is apparent that he is well acquainted with the facts in this case. In compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel's brief presents a chronological summation of the procedural history of the case and further states that counsel is unable to raise any meritorious issues for appeal. See Anders , 386 U.S. at 744, 87 S. Ct. at 1400; Mays v. State , 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.).
In our duties as a reviewing court, we must conduct an independent evaluation of the record to determine whether counsel is correct in determining that the appeal is frivolous. See Stafford v . State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays , 904 S.W.2d at 923. We have carefully reviewed the appellate record and counsel's brief. We find nothing in the record that might arguably support the appeal. See Taylor v . Tex. Dep't of Protective & Regulatory Servs .,160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).
Counsel for R.A. certified that he provided her with a copy of his brief and informed her that she had the right to file her own brief. R.A. was given time to file her own brief, but the time for filing such brief has expired and we have received no pro se brief.
DISPOSITION
We agree with R.A.'s counsel that the appeal is wholly frivolous. In accordance with In re P.M., 520 S.W.3d 24, 27 (Tex. 2016), counsel for R.A. has not moved to withdraw. Accordingly, counsel's obligation to R.A. has not yet been discharged. See id . If R.A., after consulting with counsel, desires to file a petition for review, counsel should timely file with the Texas Supreme Court "a petition for review that satisfies the standards for an Anders brief." See id . at 27-28; see also A .C. v. Tex. Dep't of Family & Protective Servs., No. 03-16-00543-CV, 2016 WL 5874880, at *1 n.2 (Tex. App.—Austin Oct. 5, 2016, no pet.) (mem. op.). Accordingly, we affirm the trial court's judgment. See TEX. R. APP. P. 43.2.
BRIAN HOYLE
Justice Opinion delivered February 6, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the County Court at Law No. 2 of Angelina County, Texas (Tr.Ct.No. CV-00638-15-10)
THIS CAUSE came to be heard on the appellate record and brief filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.