Opinion
10-22-00080-CV
07-06-2022
IN THE INTEREST OF K.M.H., A CHILD
From the 361st District Court Brazos County, Texas Trial Court No. 20-003309-CV-361
Before Chief Justice Gray, Justice Johnson, and Justice Davis.
The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code §§ 74.003, 75.002, 75.003.
MEMORANDUM OPINION
TOM GRAY CHIEF JUSTICE.
Alexis M. appeals from a judgment that terminated the parent-child relationship between her and her child, K.M.H. See, generally, Tex. Fam. Code Ann. § 161.001. Alexis's appointed counsel has filed a motion to withdraw and an Anders brief asserting that the appeal presents no issue of arguable merit. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The procedures set forth in Anders v. California are generally applicable to appeals of judgments that terminate parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.-Waco 2002, order). Counsel advised Alexis that counsel had filed the brief pursuant to Anders and that Alexis had the right to review the record and file a pro se response on her own behalf. Alexis was also provided with a motion to file with 1 this Court to get a copy of the record in this proceeding, but she has not asked this Court for a copy of the record. Alexis did not file a pro se response with this Court.
Counsel included a recitation of the procedural history and relevant facts in the Anders brief and asserted that he had reviewed the record for any potentially meritorious issues and determined there are no non-frivolous issues to raise in this appeal. Counsel's brief discusses the sufficiency of the evidence as to each of the predicate acts upon which the termination was granted as well as best interest. Counsel's brief includes a professional evaluation of the record, and we conclude that counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812-813 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 406-408 (Tex. Crim. App. 2008).
Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty to independently examine the record to decide whether counsel is correct in determining that an appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also In re G.P., 503 S.W.3d 531, 536 (Tex. App.-Waco 2016, pet. denied). Arguments are frivolous when they "cannot conceivably persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988).
Having carefully reviewed the entire record and the Anders brief, we have determined that the appeal is frivolous. Accordingly, we affirm the trial court's judgment. 2
Counsel has filed a motion to withdraw as was historically required in order to comply with the procedures set forth in Anders and its Texas progeny. However, the Texas Supreme Court has stated that the lack of an arguable issue and the subsequent filing of a motion to withdraw and an Anders brief in support may not be considered "good cause" for purposes of granting the Anders motion to withdraw pursuant to the Texas Family Code. See In the Interest of P.M., No. 15-0171, 520 S.W.3d 24, 27-28 (Tex. 2016) ("[A]n Anders motion to withdraw brought in the court of appeals, in the absence of additional grounds for withdrawal, may be premature."). Counsel does not set forth any "good cause" outside of the filing of the Anders brief in his motion to withdraw. We will deny the motion to withdraw in this proceeding. Consequently, if Alexis desires to file a petition for review, her appellate counsel remains appointed in this case through any proceedings in the supreme court unless otherwise relieved of these duties. See In re P.M., 520 S.W.3d at 27.
Conclusion
Having found no meritorious issues presented in this appeal, we affirm the judgment of the trial court. We deny counsel's motion to withdraw. 3
Affirmed; Motion to withdraw denied. 4