Opinion
05-24-00456-CV
06-07-2024
IN THE INTEREST OF O.O., A CHILD
On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-22-0669
Before Molberg, Nowell, and Kennedy, Justices .
ORDER
ERIN A. NOWELL, PRESIDING JUSTICE.
This is an appeal from an order terminating appellant's parental rights. The "involuntary termination of parental rights involves fundamental constitutional rights." In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). To protect these fundamental constitutional rights, the Texas Legislature has guaranteed each parent the right to counsel in a termination proceeding brought by a governmental entity. See TEX. FAM. CODE § 107.013(a). If appointed appellate counsel in a termination appeal determines an appeal is wholly frivolous, counsel's obligation to the client may be satisfied by filing an appellate brief meeting the standards set forth in Anders v. California, and its progeny. See Anders v. California, 388 U.S. 738, 744 (1967); In re P.M., 520 S.W.3d 24, 27 &nn. 9-10 (Tex. 2016) (per curiam).
In Anders, the United States Supreme Court outlined a procedure for ensuring that an indigent defendant's right to counsel on appeal is honored when his appointed attorney concludes that the appeal is without merit. Anders, 386 U.S. at 744, 87 S.Ct. at 1396. If the appointed attorney finds, after a conscientious examination of the record, that the case is "wholly frivolous," he or she should so advise the appellate court and file a brief referring to anything in the record that might arguably support the appeal. See id.; In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008).
An Anders brief must "contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced." High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). A proper Anders brief must "contain references to the record, citations to authority, and legal analysis." See id. And, an Anders brief should "refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discuss why either the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court." Id. at 813.
These uniform Anders briefing requirements serve numerous, important purposes. Briefs complying with these requirements help "safeguard against hastily-drawn or mistaken conclusions" that an appeal is wholly frivolous. See Interest of N.F.M., 582 S.W.3d 539, 542 (Tex. App-San Antonio 2018, no pet.) (en banc). They reassure the appellate court that counsel has thoroughly and conscientiously reviewed the record for potential issues. Schulman, 252 S.W.3d at 406. Briefs satisfying these requirements also provide "a roadmap for [the court's] review of the record because the court itself must be assured that the attorney has made a legally correct determination that the appeal is frivolous." Id. at 407; see In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). Moreover, such briefs ensure indigent parties "receive substantially the same treatment as nonindigent defendants," have some understanding as to why their lawyer is not advocating on their behalf, and provide them with some basis to determine-without the assistance of a lawyer-whether to file a pro se brief. See Schulman, 252 S.W.3d at 407-08; D.A.S., 973 S.W.2d at 297.
When an appellate court receives an Anders brief from an appellant's court-appointed attorney asserting that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744. If we conclude, after conducting an independent review, that "appellate counsel has exercised professional diligence in assaying the record for error" and agree that the appeal is frivolous, we should affirm the trial court's judgment. Arrevalos v. State, 606 S.W.3d 912, 915 (Tex. App-Dallas 2020, no pet.). If, however, we conclude either that appellate counsel has not adequately discharged the constitutional duty to review the record for any arguable error, or that the appeal is not wholly frivolous, we may abate the appeal and return the cause to the trial court for new briefing or for the appointment of new appellate counsel. See id. at 915-16.
Here, appointed appellate counsel has discussed why this appeal is without merit and frivolous because the record reflects no reversible error and, in his opinion, there are no grounds upon which an appeal can be predicated. Counsel provides a detailed recitation of the evidence, including references to the record, as well as legal analysis with citations to authority explaining why the evidence in this case is sufficient to support termination of appellant's parental rights. However, in his brief, counsel does not refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, nor why the ruling was either correct or why appellant was not harmed by the ruling.
Consequently, we conclude the Anders brief in this case does not satisfy the uniform Anders briefing requirements. We STRIKE the Anders brief filed in this case on May 9, 2024, and ORDER appointed counsel to file a new brief that complies with the uniform Anders briefing requirements within TWENTY DAYS of the date of this order. In doing so, we express no opinion as to whether there is, or is not, a potentially meritorious issue in this record; determining whether the form of an Anders brief is sufficient is an inquiry that is legally distinct from determining whether, in substance, counsel has correctly concluded the appeal is wholly frivolous. See id. at 916 n. 4.