K. M. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00810-CV
K. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 298,186-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
Katie appeals a final decree terminating her parental rights to a child.1 Following
de novo trial to the bench, see Tex. Fam. Code § 201.015(a) (allowing de novo review of
associate judge’s reports and orders), the district court rendered judgment finding by clear and
convincing evidence that Katie had failed to comply with court orders establishing the conditions
necessary to regain custodial rights, see id. § 161.001(b)(1)(O), and that termination is in the best
interest of the child, see id. § 161.001(b)(2). Katie filed timely appeal.
Katie’s court-appointed attorney has filed a motion to withdraw accompanied by a
brief alleging that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738,
744 (1967) (stating that court-appointed counsel who believes appeal is wholly frivolous should
1 See Tex. Fam. Code § 161.001. We refer to appellant by a pseudonym. See id.
§ 109.002(d).
file motion to withdraw “accompanied by a brief referring to anything in the record that might
arguably support the appeal”); In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam)
(approving use of Anders procedure in appeals from termination of parental rights). The
brief meets the requirements of Anders by presenting a professional evaluation of the
record demonstrating that there are no arguable grounds for reversal to be advanced on
appeal. See Anders, 386 U.S. at 744; Taylor v. Texas Dep’t of Protective & Regulatory Servs.,
160 S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied) (applying Anders procedure in
parental-rights termination case). Counsel has certified to this Court that she provided Katie
with a copy of the Anders brief, a copy of the motion to withdraw, and notice of her right to file a
brief pro se. Katie did not file a brief, and the Department of Family and Protective Services has
elected not to brief the Court in this matter.
Upon receipt of an Anders brief, we must conduct a full examination of the
proceedings below to determine whether the appeal is wholly frivolous. See Penson v. Ohio,
488 U.S. 75, 80 (1988); In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). After reviewing the
record and the briefing, we find nothing that would arguably support a meritorious appeal. It is
undisputed that Katie repeatedly failed to comply with court-ordered treatment, services, and
testing intended to help her overcome methamphetamine addiction and regain custody of the
child. Equally uncontroverted is the Department’s evidence that Katie’s child is thriving in her
placement. We therefore agree with Katie’s attorney that this appeal is frivolous and
without merit.
Nevertheless, we must deny counsel’s motion to withdraw. The Supreme Court
of Texas has held that a parent’s right to counsel extends to “all proceedings in [the Supreme
Court of Texas], including the filing of a petition for review.” See P.M., 520 S.W.3d at 27.
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Accordingly, counsel’s obligation to Katie has not yet been discharged. See id. If Katie, after
consulting with her attorney, desires to file a petition for review, counsel should timely file with
the high court “a petition for review that satisfies the standards for an Anders brief.” See id.
at 27–28.
For the reasons stated herein, we affirm the district court’s decree terminating
Katie’s parental rights and deny counsel’s motion to withdraw.
_________________________________________
Edward Smith, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: March 18, 2020
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