Opinion
NUMBER 13-15-00433-CV
02-04-2016
IN THE INTEREST OF K.N.G., A CHILD
On appeal from the 343rd District Court Of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant C.G. appeals the trial court's order terminating her parental rights with respect to her child, K.N.G. A jury concluded that CG had: (1) knowingly placed or knowingly allowed K.N.G. to remain in conditions or surroundings which endangered his physical or emotional well-being; (2) engaged in conduct or knowingly placed K.N.G. with persons who engaged in conduct which endangered K.N.G.'s physical or emotional well-being; (3) failed to support K.N.G. in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition; and (4) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of K.N.G., who had been in the managing conservatorship of the Texas Department of Family and Protective Services for not less than nine months as a result of the child's removal from C.G. for the abuse or neglect of the K.N.G. See TEX. FAM. CODE ANN. § 161.001(1)(D)-(F),(O) (West, Westlaw through 2015 R.S.). The jury further concluded that termination of the parent-child relationship was in the best interest of K.N.G. See id. § 161.001(2). The trial court terminated C.G.'s parental rights to K.N.G. in accordance with the jury's verdict. In presenting this appeal, appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) concluding there are no non-frivolous issues that could be presented on appeal and that any appeal would be without merit. We affirm.
We will refer to the mother as C.G. and her child as K.N.G. in accordance with rule of appellate procedure 9.8. See TEX. R. APP. P. 9.8(b) (providing that in a parental-rights termination case, "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member"); see also TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2015 R.S.) ("On the motion of the parties or on the court's own motion, the appellate court in its opinion may identify the parties by fictitious names or by their initials only.").
B.C., the father of K.N.G., filed an affidavit of voluntary relinquishment in the proceedings below, and the trial court terminated his parental rights. He is not a party to this appeal.
I. COMPLIANCE WITH ANDERS
The Anders procedures are applicable to an appeal from the termination of parental rights when an appointed attorney concludes there are no non-frivolous issues to assert on appeal. See, e.g., In re A.F., No. 08-15-00182-CV, 2015 WL 8949748, at *1 (Tex. App.—El Paso Dec. 15, 2015, no. pet. h.); In re R.M.C., 395 S.W.3d 820, 820-21 (Tex. App.—Eastland 2013, no pet.) (per curiam); In re A.W., 384 S.W.3d 872, 873 (Tex. App.—San Antonio 2012, no pet.); In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also In re P.N.K., No. 13-15-00479-CV, 2016 WL 192068, at *1 (Tex. App.—Corpus Christi Jan. 14, 2016, no. pet. h.) (mem. op.).
C.G.'s court-appointed appellate counsel has filed a brief in which she states that she has "diligently reviewed the record in this cause and the law applicable thereto and, in her opinion, there are no grounds of error upon which an appeal can be predicated." See Anders v. California, 386 U.S. 738, 774-45 (1967); Porter v. Tex. Dep't of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no pet.) ("[W]hen appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders-type brief."). In her brief, counsel addresses whether "the [t]rial [c]ourt err[ed] by finding clear and convincing evidence supporting multiple grounds to terminate the parental rights of [appellant] and clear and convincing evidence that it was in the best interest of the child to terminate the parent-child relationship between the [c]hild and [appellant]." See TEX. FAM. CODE ANN. § 161.001(1)(D)-(F),(O); id. § 161.001(2) (West, Westlaw through 2015 R.S.) (providing that parental rights may be terminated if termination is in the best interest of the child). Counsel's brief meets the requirements of Anders because it presents a professional evaluation showing why there are no non-frivolous grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.") (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), and Kelly v. State, 436 S.W.3d 313, 318-19 (Tex. Crim. App. 2014), C.G.'s counsel asserts that, under controlling authority, there are no reversible errors in the trial court's judgment. Counsel has demonstrated that she has complied with the requirements of Anders by examining the record and finding no arguable grounds to advance on appeal. See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Counsel has demonstrated that she has complied with the requirements of Anders by: (1) examining the record and determining that there are no grounds of error upon which an appeal can be predicated; (2) serving upon C.G. a copy of the brief and her request to withdraw; (3) informing C.G. of her rights to file a pro se response, review the record preparatory to filing that response, and seek review if the court of appeals concludes that the appeal is frivolous; and (4) providing C.G. with a form motion for pro se access to the appellate record, with instructions to file the motion within ten days. See Anders, 386 U.S. at 774; Kelly, 436 S.W.3d at 318-19; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. An adequate time has passed, and C.G. has not filed either a timely motion seeking pro se access to the appellate record or a motion for extension of time to do so. And she has not filed a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all proceedings to determine whether the case is wholly frivolous. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also In re G.M., No. 13-08-00569-CV, 2009 WL 2547493, *1 (Tex. App.—Corpus Christi Aug. 20, 2009, no pet.) (mem. op.). We have carefully reviewed the entire record and the brief on file in this case, and we have found nothing that would arguably support an appeal for C.G. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the trial court's order terminating the parental rights of C.G. to K.N.G.
III. MOTION TO WITHDRAW
In accordance with Anders, counsel for C.G. asks this Court for permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17. We grant counsel's motion to withdraw. Within five days of the date of this Court's opinion, we order counsel to send a copy of the opinion and judgment to C.G. and to advise her of her right to pursue a petition for review in the Texas Supreme Court.See In re K.D., 127 S.W.3d 66, 68 n.3 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
No substitute counsel will be appointed. Should C.G. wish to seek further review of this case by the Texas Supreme Court, she must either retain an attorney to file a petition for review or file a pro se petition for review. Any petition for review must be filed with the Texas Supreme Court clerk within forty-five days after the date of either this opinion or the last ruling by this Court on all timely filed motions for rehearing or en banc reconsideration. See TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of rule 53.2 of the Texas Rules of Appellate Procedure. See id. at R. 53.2. --------
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed this the 4th day of February, 2016.