Opinion
02-23-00014-CV
05-04-2023
In the Interest of K.A., a Child
On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-712290-22
Before Kerr, Birdwell, and Bassel, JJ.
MEMORANDUM OPINION
Elizabeth Kerr Elizabeth Kerr Justice
C.W. (Mother) and D.A. (Father) appeal from the trial court's order terminating their parental rights to their daughter K.A. (Katie) and awarding permanent managing conservatorship of her to the Department of Family and Protective Services. See Tex. Fam. Code. Ann. § 161.001(b)(1)(D),(E),(M),(N),(O),(P),(R), (b)(2). We will affirm.
We use aliases to identify the parties. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Mother's appointed appellate counsel and Father's appointed appellate counsel filed briefs asserting that Mother's and Father's respective appeals are frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776-77 (Tex. App.-Fort Worth 2003, order) (holding that Anders procedures apply in parental-rights-termination cases), disp. on merits, No. 2-01-349-CV, 2003 WL 2006583, at *2-3 (Tex. App.-Fort Worth May 1, 2003, no pet.) (per curiam) (mem. op.). Each brief meets Anders's requirements by professionally evaluating the record and demonstrating why no arguable appellate grounds can be advanced.
Mother's counsel has certified that she provided Mother with a copy of the Anders brief and informed her of her rights to request and to review the appellate record[2] and to file a pro se response in this court. We also informed Mother that her appointed appellate counsel had filed an Anders brief and gave her an opportunity to examine the appellate record and to file a pro se response to the Anders brief. Mother did not file a response.
Father's counsel has certified that he provided Father with a copy of the Anders brief and informed him of his rights to request and to review the appellate record, to file a pro se response in this court, and to seek review from the Texas Supreme Court. We also informed Father that his appointed appellate counsel had filed an Ander's brief and gave him an opportunity to examine the appellate record and to file a pro se response to the Anders brief. Father did not file a response.
Father's counsel also certified to us that he explained to Father the process of obtaining the appellate record; furnished him with a motion for pro se access to the record, which lacked only Father's signature and the date; and provided him with our mailing address and the motion's filing deadline.
The Department declined to file a brief.
In assessing the correctness of a compliant Anders brief s conclusion that an appeal from a judgment terminating parental rights is frivolous, we must independently examine the appellate record to determine if any arguable grounds for appeal exist. In re C.J., No. 02-18-00219-CV, 2018 WL 4496240, at *1 (Tex. App.-Fort Worth Sept. 20, 2018, no pet.) (mem. op.); see also Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.-Fort Worth 1995, no access to the record, which lacked only Mother's signature and the date; and provided her with our mailing address and the motion's filing deadline. pet.). We also consider the Ander's brief itself and any pro se response. In re K.M., No. 02-18-00073-CV, 2018 WL 3288591, at *10 (Tex. App.-Fort Worth July 5, 2018, pet. denied) (mem. op.); see In re Schulman, 252 S.W.3d 403, 408-09 (Tex. Crim. App. 2008) (orig. proceeding).
We have carefully reviewed the briefs and the appellate record. Finding nothing in the record that could arguably support an appeal, we agree with counsel that Mother's and Father's appeals are frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); In re D.D., 279 S.W.3d 849, 850 (Tex. App.-Dallas 2009, pet. denied). We thus affirm the trial court's order terminating Mother's and Father's parental rights to Katie.
Father's counsel argues that the evidence is insufficient to support the § 161.001(b)(1)(M) conduct ground for Father because no evidence shows the date the trial court named the Department managing conservator of Father's other children to whom his rights were terminated in a prior case. See Tex. Fam. Code Ann. §161.001(d-1). Although counsel explains that he cannot argue for reversal because sufficient evidence supports the other conduct grounds, he requests that we reform the judgment to delete ground (M). Section 161.001(d-1) states,
The court may not order termination under Subsection (b)(1)(M) unless the petition for the termination of the parent-child relationship is filed not later than the first anniversary of the date the department or an equivalent agency in another state was granted managing conservatorship of a child in the case that resulted in the termination of the parent-child relationship with respect to that child based on a finding that the parent's conduct violated Subsection (b)(1)(D) or (E) or substantially equivalent provisions of the law of another state.Tex. Fam. Code Ann. §161.001(d-1). A trial exhibit shows that on July 1, 2022, Father's parental rights to five other children were terminated on (D) and (E) grounds, and in the termination order, the trial court named the Department managing conservator of those children. The Department filed the petition here on December 1, 2021. Thus, subsection (d-1) does not bar an (M) ground finding here.
Mother's counsel filed a motion to withdraw, but we deny the motion because counsel did not show good cause for withdrawal independent from counsel's conclusion that the appeal is frivolous. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (order); In re C.J., 501 S.W.3d 254, 255 (Tex. App.-Fort Worth 2016, pets. denied). Accordingly, Mother's counsel remains appointed in this case through proceedings in the Texas Supreme Court unless otherwise relieved from her duties for good cause in accordance with Texas Family Code Section 107.016(2)(C). See P.M., 520 S.W.3d at 27- 28; see also Tex. Fam. Code Ann. § 107.016(2)(C).
Father's counsel did not file a motion to withdraw, and the record does not show good cause for withdrawal independent from counsel's conclusion that the appeal is frivolous. See P.M., 520 S.W.3d at 27; C.J., 501 S.W.3d at 255. Accordingly, Father's counsel remains appointed through proceedings in the Texas Supreme Court unless otherwise relieved. See P.M., 520 S.W.3d at 27-28; see also Tex. Fam. Code. Ann. § 107.016(2)(C).
Father's counsel noted in his brief that he would move to withdraw as appellate counsel in the Texas Supreme Court.