Opinion
NUMBER 13-15-00479-CV
01-14-2016
IN THE INTEREST OF P.N.K. AND A.M.L.K., CHILDREN
On appeal from the County Court at Law of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant I.K. appeals the trial court's order terminating his parental rights with respect to his two children, P.N.K. and A.M.L.K. We affirm.
We will refer to the father as I.K., and his children as P.N.K. and A.M.L.K., 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.").
I. COMPLIANCE WITH ANDERS
I.K.'s court-appointed appellate counsel has filed a brief in which he states "[r]eview of the [r]ecord and [t]ranscript found no non-frivolous basis for the appeal" and has requested that this Court permit him to withdraw as counsel. 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 his brief, counsel addresses whether "the trial [c]ourt err[ed] in finding clear and convincing evidence supporting a single ground to terminate the parental rights of [I.K.] and clear and convincing evidence that it was in the best interest of the children to terminate the parent-child relationship between the [c]hildren and [I.K.]." See TEX. FAM. CODE ANN. § 161.001(1)(Q) (West, Westlaw through 2015 R.S.) (providing that parental rights may be terminated if the parent has knowingly engaged in criminal conduct for which the parent is incarcerated and unable to care for the child "for not less than two years from the date of filing the petition"); id. § 161.001(2) (setting out that parental rights may be terminated if termination is in the best interest of the child). Counsel's brief meets the requirements of Anders as 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), I.K.'s counsel has discussed why, under controlling authority, there are no reversible errors in the trial court's judgment. Counsel has demonstrated that he 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 he 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 I.K. a copy of the brief and his request to withdraw, (3) informing I.K. of his 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 I.K. 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 I.K. 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 he has not filed a pro se response.
Counsel specifically sets out that the appeal in this case is without merit because no jurisdictional, evidentiary, or procedural error is apparent from the record; trial counsel met the minimum standards of effective assistance of counsel; there is sufficient evidence to support the judgment; and there is no evidence of any abuse of discretion by the trial court.
In the criminal context, the Texas Court of Criminal Appeals has held that "the pro se response [to a 'frivolous appeal' brief] need not comply with the rules of appellate procedure in order to be considered. Rather, any response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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 reviewed the entire record and the brief on file in this case, and we have found nothing that would arguably support an appeal for I.K. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (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 I.K. to P.M.K. and A.M.L.K.
III. MOTION TO WITHDRAW
In accordance with Anders, counsel for I.K. 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 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no pet.) ("If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's motion to withdraw that was carried with this case on November 19, 2015. Within five days of the date of this Court's opinion, we order counsel to send a copy of the opinion and judgment to I.K. and to advise I.K. of his 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 I.K. wish to seek further review of this case by the Texas Supreme Court, he 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. --------
NELDA V. RODRIGUEZ
Justice Delivered and filed the 14th day of January, 2016.