Summary
denying a motion for withdrawal in light of P.M. where it did not show "good cause" other than counsel's determination that an appeal would be frivolous
Summary of this case from In re A.E.J.Opinion
NO. 02-16-00143-CV
08-26-2016
In the Interest of C.J., H.T., and B.T., Children
Attorney for Appellant S.J.: Phillip M. Herr, Law Office of Phillip M. Herr, PLLC, Flower Mound, Texas Attorney for Appellant B.P.T.: Devon Dupuy, Lloyd & Dupuy, PLLC, Denton, Texas Attorneys for State: Paul Johnson, Criminal District Attorney; Catherine Luft, Chief of Appellate, Division, Assistant Criminal District Attorney, Denton County District Attorney's Office, Denton, Texas
Attorney for Appellant S.J.: Phillip M. Herr, Law Office of Phillip M. Herr, PLLC, Flower Mound, Texas
Attorney for Appellant B.P.T.: Devon Dupuy, Lloyd & Dupuy, PLLC, Denton, Texas
Attorneys for State: Paul Johnson, Criminal District Attorney; Catherine Luft, Chief of Appellate, Division, Assistant Criminal District Attorney, Denton County District Attorney's Office, Denton, Texas
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
OPINION
TERRIE LIVINGSTON CHIEF JUSTICE
Appellants S.J. and B.P.T. appeal the trial court's judgment terminating S.J.'s parental rights to C.J., H.T., and B.T. and terminating B.P.T.'s parental rights to H.T. and B.T. A jury found that clear and convincing evidence established that S.J. and B.P.T. knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being, engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being, and failed to comply with the provisions of a court order that established the actions necessary to obtain the children's return. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). The jury also found that clear and convincing evidence showed that termination of S.J.'s and B.P.T.'s parental rights is in the children's best interest. Seeid. § 161.001(b)(2).
Both appellants' court-appointed appellate attorneys have filed motions to withdraw and Anders briefs in support of those motions, stating that after diligently reviewing the record, they believe that an appeal is frivolous. SeeAnders v. California , 386 U.S. 738, 744–45, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) ; see alsoIn re K.M. , 98 S.W.3d 774, 776–77 (Tex.App.—Fort Worth 2003, no pet.) (holding that Anders procedures apply in parental termination cases). The briefs meet the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. Although given the opportunity, neither S.J. nor B.T. filed responses.
As the reviewing appellate court, we must independently examine the record to decide whether counsel is correct in determining that an appeal in this case is frivolous. SeeStafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App.1991) ; In re K.R.C. , 346 S.W.3d 618, 619 (Tex.App.—El Paso 2009, no pet.). Having carefully reviewed the record and the Anders briefs, we agree with counsel that the appeal is frivolous. SeeK.R.C. , 346 S.W.3d at 619. We find nothing in the record that might arguably support either appellant's appeal. SeeIn re D.D. , 279 S.W.3d 849, 850 (Tex.App.—Dallas 2009, pet. denied). Accordingly, we affirm the trial court's judgment.
However, we deny the motions to withdraw filed by S.J.'s and B.P.T.'s counsels in light of In re P.M. because they do not show "good cause" other than counsels' determination that an appeal would be frivolous. No. 15–0171, ––– S.W.3d ––––, ––––, 2016 WL 1274748, at *3–4 (Tex. Apr. 1, 2016) ("[A]n Anders motion to withdraw brought in the court of appeals, in the absence of additional grounds for withdrawal, may be premature."); In re A.M. , No. 01–16–00130–CV, 495 S.W.3d 573, 582, 2016 WL 4055030, at *7 & n. 2 (Tex.App.–Houston [1st Dist.] July 28, 2016, no pet. h.) (noting that since In re P.M. was handed down, "most court of appeals affirming parental termination orders after receiving Anders briefs have denied the attorney's motion to withdraw"). The supreme court has held that in cases such as this, "appointed counsel's obligations [in the supreme court] can be satisfied by filing a petition for review that satisfies the standards for an Anders brief." In re P.M. , ––– S.W.3d at ––––, 2016 WL 1274748, at *3.
In In re M.M. , No. 02–16–00004–CV, 2016 WL 2586640, at *1 (Tex.App.–Fort Worth May 5, 2016, no pet.) (mem. op.), we abated the appeal for the trial court to consider whether to appoint new counsel. However, the supreme court's ruling in In re P.M. allowed the courts of appeals to choose which appropriate remedy would preserve an appellant's right to counsel in accordance with section 107.013. In re P.M. , ––– S.W.3d at –––– – ––––, 2016 WL 1274748, at *3–4 ("While an appellate court may be equipped to rule on a motion to withdraw in many instances, it may decide instead, as the court of appeals did in this case with a motion unrelated to any Anders claim, to refer the motion to the trial court for evidence and a hearing."); see Tex. Fam. Code Ann. § 107.013 (West Supp. 2016).
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