Opinion
No. 05-20-00526-CV
10-14-2020
IN THE INTEREST OF J.L.B., A CHILD
On Appeal from the 304th Judicial District Court Dallas County, Texas
Trial Court Cause No. JC-19-00171-W
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Whitehill
Mother appeals an order appointing her possessory conservator of her son J.L.B. Her court-appointed appellate counsel has filed a motion to withdraw and an Anders brief stating that the appeal is wholly without merit and frivolous. See Anders v. California, 386 U.S. 738 (1967); In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied) (extending Anders to parental termination cases); see also In re G.W., No. 05-17-01006-CV, 2017 WL 5951727, at *1-2 (Tex. App.—Dallas Dec. 1, 2017, pet. denied) (mem. op.) (applying Anders to case in which termination was sought but not granted by trial court).
We affirm the trial court's order but deny counsel's motion to withdraw.
I. BACKGROUND
On February 13, 2019, the Department of Family and Protective Services filed a petition requesting relief that included termination of Mother's parental rights regarding her two-year-old son J.L.B. A supporting affidavit said that Mother admitted testing positive for methamphetamines in December 2018 and continuing to use drugs thereafter. The affidavit also said that J.L.B. tested positive for methamphetamines.
The trial court determined that Mother was indigent and appointed counsel for her. It appointed the Department as J.L.B.'s temporary managing conservator and ordered Mother to participate in counseling, drug and alcohol assessment, and random drug and alcohol testing.
In August 2019, the trial court set the case for pretrial hearing on December 13, 2019, and trial on January 20, 2020.
On December 3, 2019, the Department filed a permanency report recommending that the court continue the case but retain the March 23, 2020 dismissal date. The report said that Mother had tested positive for amphetamines and methamphetamines in June and October 2019 and failed to complete her drug tests in September 2019. The report also said that Mother was slow to complete recommended services, was slow to demonstrate the stability needed to give J.L.B. a safe environment, and minimized her mental needs and her role in the Department's involvement.
In general, a Department filed suit for termination is automatically dismissed "on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator" unless trial on the merits has commenced. TEX. FAM. CODE § 263.401(a). The deadline can be extended if extraordinary circumstances require it. See id. § 263.401(b).
On December 13, 2019, Mother moved to extend the case's March 23, 2020 dismissal date so that she could complete an additional drug treatment program.
The January trial was continued.
On March 2, 2020, Mother and her lawyer signed a mediated settlement agreement (MSA). Mother agreed that if the court denied her request to extend the dismissal deadline, J.L.B.'s uncle would be appointed as managing conservator and Mother would be appointed possessory conservator with a minimum of two supervised visits per month. The MSA was filed with the court on March 19, 2020.
The case was set for trial on March 23, 2020, which was also the dismissal date, but the trial was continued based on COVID emergency declarations.
On April 15, 2020, Mother filed an amended motion seeking an extension of the dismissal date. The motion recited that the case was set for trial on May 4, 2020.
On May 4, 2020, J.L.B.'s attorney ad litem filed a report. The report said that Mother tested positive for amphetamines and methamphetamines in April 2020, and it recommended that the trial court enforce the MSA.
At the May 4, 2020 trial, Mother's lawyer argued her motion to extend the dismissal date. The Department and J.L.B.'s attorney ad litem opposed Mother's request and requested judgment on the MSA. Mother's lawyer objected to certain factual assertions by the Department's lawyer and asked that Mother and Mother's toxicology expert be allowed to testify. Without expressly addressing Mother's request to present testimony, the trial judge ruled that there were no exigent circumstances supporting an extension, denied Mother's extension request, and granted judgment on the MSA.
The trial judge signed an order enforcing the MSA. Mother appealed. The trial judge then appointed new counsel to represent Mother on appeal. Appellate counsel filed an Anders brief and motion to withdraw.
II. ANALYSIS
When we review an Anders brief, we must determine whether there are any arguable grounds for reversal. In re G.W., 2017 WL 5951727, at *1. If there are, we remand for the appointment of new counsel. Id.
A trial court may refer a suit affecting the parent-child relationship to mediation. TEX. FAM. CODE § 153.0071(c). If the parties reach an agreement that meets the statutory requirements, it is binding, and a party is entitled to judgment on the agreement notwithstanding Texas Rule of Civil Procedure 11 or another rule of law. In re G.W., 2017 WL 5951727, at *2. A court may decline to render judgment on the agreement if it finds that (i) the agreement is not in the child's best interest and (ii) certain other circumstances are present, such as that a party's decision making ability was impaired by his or her being a family violence victim. FAM. CODE § 153.0071(e-1); see also In re M.J.K., No. 05-15-01141-CV, 2016 WL 7163847, at *3 (Tex. App.—Dallas Nov. 16, 2016, no pet.) (mem. op.) ("A trial court has only limited discretion to deny entry of judgment on a mediated settlement agreement that complies with the statutory requirements.").
We conclude that the Anders brief before us professionally evaluates the record and demonstrates that there are no arguable grounds for reversal.
Mother's appellate counsel certified in his motion to withdraw that he delivered a copy of the motion and the Anders brief to Mother. He also certified that Mother was informed that she could file her own pro se brief, object to the withdrawal motion, and obtain the record from counsel. We likewise informed Mother of her rights by letter. Mother has not responded.
Having reviewed the record and the Anders brief, we conclude that the appeal is frivolous and without merit. Nothing in the record arguably supports the appeal. Accordingly, we affirm the trial court's order. See In re G.W., 2017 WL 5951727, at *2.
In the trial court, Mother did not (i) challenge the enforceability of the MSA or (ii) present any evidence supporting her request to extend the hearing date. Cf. In re A.C., 560 S.W.3d 624, 632 (Tex. 2018) (stipulations in MSA and inferences therefrom can be sufficient evidence to support best interest finding); In re M.G., 585 S.W.3d 51, 58 (Tex. App.—Eastland 2019, no pet.) (denial of motion to extend one-year deadline is reviewed for abuse of discretion).
However, we deny counsel's motion to withdraw. Counsel offers no reason to withdraw other than the appeal's frivolousness, which is not sufficient good cause for withdrawing. See id.; see also In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Consequently, counsel's obligations have not been discharged. See In re G.W., 2017 WL 5951727, at *2. If Mother, after consulting with counsel, desires to file a petition for review, counsel must file a petition for review that satisfies Anders. See id.
III. CONCLUSION
We affirm the trial court's order and deny Mother's counsel's motion to withdraw.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 200526F.P05
JUDGMENT
On Appeal from the 304th Judicial District Court, Dallas County, Texas
Trial Court Cause No. JC-19-00171-W.
Opinion delivered by Justice Whitehill. Justices Osborne and Carlyle participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered October 14, 2020.