in the Interest of T. W. M., III, a Child ( 2022 )

NO. 12-22-00184-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 402ND
T.W.M., III, § JUDICIAL DISTRICT COURT
A CHILD § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
R.B. appeals the termination of her parental rights. R.B.’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and
Gainous v. State, 436 S.W.3d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
R.B. is the mother of T.W.M., III, and T.W.M., Jr. is the child’s father. 1 On September 29,
2021, the Department of Family and Protective Services (the Department) filed an original petition
for protection of a child, for conservatorship, and for termination of the parental rights of R.B. and
T.W.M., Jr. The Department was appointed temporary managing conservator of T.W.M., III, and
the parents were allowed limited access to, and possession of, T.W.M., III.
The evidence at trial showed that R.B. used methamphetamine during her pregnancy with
T.W.M., III, and she tested positive for methamphetamine when the child was born. R.B. did not
complete any of the services required by the family plan of service, as ordered by the trial court,
and she was incarcerated at the time of trial. The child is currently placed with a paternal relative
who wishes to adopt him, and he is doing well in that placement.
1
T.W.M., Jr. is not a party to this appeal.
At the conclusion of the trial, the trial court found, by clear and convincing evidence, that
R.B. knowingly placed or allowed the child to remain in conditions that endangered his physical
or emotional wellbeing, knowingly engaged in conduct that endangered the child’s physical or
emotional wellbeing, constructively abandoned the child, and failed to comply with the provisions
of a court order that specifically established the actions necessary for her to obtain the return of
the child, and that termination of R.B.’s parental rights is in T.W.M, III’s best interest. See TEX.
FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (N), (O) (West 2022). Based on these findings, the
trial court ordered that the parent-child relationship between R.B. and T.W.M, III be terminated.
This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
R.B.’s counsel filed a brief in compliance with Anders, stating that he diligently reviewed
the appellate record and is of the opinion that the record reflects no reversible error and that there
is no error upon which an appeal can be predicated. This Court has previously held that Anders
procedures apply in parental rights termination cases when the Department has moved for
termination. See In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.). In
compliance with Anders, counsel’s brief presents a professional evaluation of the record
demonstrating why there are no reversible grounds on appeal and referencing any grounds that
might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mays v. State,
904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.).
As a reviewing court, we must conduct an independent evaluation of the record to
determine whether counsel is correct in concluding that the appeal is frivolous. See Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904 S.W.2d at 923. We have carefully
reviewed the appellate record and counsel’s brief. We find nothing in the record that might
arguably support the appeal. 2 See Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160
S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).
2
Counsel for R.B. certified that he provided R.B. with a copy of the brief and informed her that she had the
right to file her own brief and took concrete measures to facilitate her review of the record. See Kelly v. State, 436
S.W.3d 313, 319 (Tex. Crim. App. 2014); In the Matter of C.F., No. 03-18-00008-CV, 2018 WL 2750007, at *1
(Tex. App.—Austin June 8, 2018, no pet.) (mem. op.). R.B. was given the time to file her own brief, but the time for
filing such a brief has expired, and we have not received a pro se brief.
2
DISPOSITION
We agree with R.B.’s counsel that the appeal is wholly frivolous. 3 Accordingly, we affirm
the trial court’s judgment. See TEX. R. APP. P. 43.2.
Opinion delivered September 30, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
3
After filing an Anders brief, R.B.’s attorney filed a motion to withdraw due to his acceptance of new
employment, which created a conflict of interest. We remanded the case to the trial court, and the trial court permitted
counsel to withdraw and appointed new appellate counsel for R.B. R.B.’s new appellate counsel has not filed a motion
to withdraw. However, even if her counsel had filed a motion to withdraw, we would not grant such a motion because
counsel’s obligations to R.B. have not yet been discharged. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (holding
that the right to counsel in suits seeking the termination of parental rights extends to “all proceedings in [the Texas
Supreme Court], including the filing of a petition for review.”). If R.B., after consulting with counsel, desires to file a
petition for review, counsel should timely file with the Texas Supreme Court “a petition for review that satisfies the
standards for an Anders brief.” Id.; see A.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-16-00543-CV, 2016
WL 5874880, at *1 n.2 (Tex. App.—Austin Oct. 5, 2016, no pet.) (mem. op.).
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 30, 2022
NO. 12-22-00184-CV
IN THE INTEREST OF T.W.M., III, A CHILD
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 2021-332)
THIS CAUSE came to be heard on the appellate record and brief filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.