in the Interest of N. I. W. v. Department of Family and Protective Services ( 2018 )

Opinion issued December 20, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00576-CV
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IN THE INTEREST OF N.I.W., A Child
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2016-03594J
MEMORANDUM OPINION
This is an appeal from the trial court’s final decree for termination in a suit
brought by the Department of Family and Protective Services (DFPS) to terminate
the parent-child relationship between appellants and N.I.W. (the child). In its decree,
the trial court terminated both parents’ parental rights and appointed DFPS as sole
managing conservator of the child. Both the father, A.L., and the mother, L.I.B.,
filed notices of appeal, and the trial court appointed separate counsel on their
behalves to prosecute this appeal. Both the father and the mother’s court-appointed
appellate counsel have moved to withdraw and filed separate Anders briefs, stating
that, in their professional opinions, this appeal is without merit and that there are no
arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S.
Ct. 1396, 1400 (1967).
Anders procedures are appropriate in an appeal from a trial court’s final order
in a parental-rights termination suit. In re K.D., 127 S.W.3d 66, 67 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). Both counsel have certified that they have
delivered a copy of their respective briefs to the father and mother and informed
them of their rights to examine the appellate record and to file responses. See In re
Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Neither parent timely filed
a response and DFPS waived its right to respond.
The briefs submitted by the father’s and mother’s appointed appellate counsel
state their professional opinions that no arguable grounds for reversal exist and that
any appeal would therefore lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400. Counsel’s briefs meet the minimum Anders requirements by presenting a
professional evaluation of the record and stating why there are no arguable grounds
for reversal on appeal. See id. at 744, 87 S. Ct. at 1400; In re Schulman, 252 S.W.3d
at 406–07.
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When we receive an Anders brief from an appointed attorney who asserts that
no arguable grounds for appeal exist, we independently determine whether arguable
grounds exist by conducting our own review of the entire record. Johnson v. Dep’t
of Family & Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806, at *1 (Tex.
App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem. op.); see In re K.D., 127
S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330 (Tex. App.—Houston [14th Dist.]
2004, no pet.). If we determine that arguable grounds for appeal exist, we abate the
appeal and remand the case to the trial court to allow the appointed attorney to
withdraw. See Johnson, 2010 WL 5186806, at *2. Then, the trial court appoints
another attorney to present all arguable grounds for appeal. See id.
On the other hand, if our independent review of the record leads us to conclude
that the appeal is frivolous, we may affirm the trial court’s judgment by issuing an
opinion in which we explain that we have reviewed the record and find no reversible
error. See id. Here, we have independently reviewed the record and conclude that
there are no arguable grounds for review, that no reversible error exists, and therefore
the parents’ appeals are frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400
(emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); In re A.M., 495
S.W.3d 573, 582 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). Accordingly,
we affirm the trial court’s termination decree.
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However, we deny both counsels’ motions to withdraw because this is a
parental termination case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (holding
that Anders brief in parental termination case is not “good cause” sufficient to justify
counsel’s withdrawal); In re A.M., 495 S.W.3d at 582. Counsels’ duties to their
clients extend through the exhaustion or waiver of “all appeals.” In re A.M., 495
S.W.3d at 583 (citing TEX. FAM. CODE ANN. § 107.016(2)(B)). If the appellants
choose to pursue a petition for review to the Supreme Court of Texas, his or hers
“appointed counsel’s obligations can be satisfied by filing a petition for review that
satisfies the standards for an Anders brief.” In re P.M., 520 S.W.3d at 27–28.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Brown.
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