in the Interest of A.G. and K.G., Children ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00200-CV
IN THE INTEREST OF A.G. AND K.G., CHILDREN
From the 361st District Court
Brazos County, Texas
Trial Court No. 16-001456-CV-361
MEMORANDUM OPINION
Candis E. appeals from an order that terminated the parent-child relationship
between her and her children, A.G. and K.G. See TEX. FAM. CODE ANN. § 161.001 (West
2014). Candis's appointed counsel has filed a motion to withdraw and an Anders brief
asserting that the appeal presents no issues 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 applicable to appeals of orders terminating parental rights. In re E.L.Y., 69
S.W.3d 838, 841 (Tex. App.—Waco 2002, order). Counsel advised Candis that counsel
had filed the brief pursuant to Anders and that Candis had the right to review the record
and file a pro se response on her own behalf. Counsel also provided Candis with a copy
of the record. Candis did file a response with this Court.
Counsel included a detailed recitation of the facts in the Anders brief and asserted
that counsel reviewed the trial court's jurisdiction and the record for any potentially
meritorious issues, and determined there is no non-frivolous issue to raise in this appeal.
Counsel's brief discusses the sufficiency of the evidence relating to one ground of the
three on which the termination was granted as well as the best interest of the children.
Counsel's brief evidences 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 the 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., 535 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, as well as
Candis's response, we have determined that the appeal is frivolous. See In re D.D., 279
S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). Accordingly, we affirm the trial
court's order of termination.
In the Interest of A.G. and K.G., Children Page 2
Counsel has filed a motion to withdraw as has historically been 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, 2016 Tex. LEXIS 236, *7-8 (Tex.
Apr. 1, 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 her motion to
withdraw. We will deny the motion to withdraw. Consequently, if Candis desires to file
a petition for review, counsel is still under a duty to timely file with the Texas Supreme
Court "a petition for review that satisfies the standards for an Anders brief." See id.
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.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed; Motion to withdraw denied
Opinion delivered and filed December 6, 2017
[CV06]
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