In the Interest of C.L.W. and B.M.W., Children v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00380-CV
IN THE INTEREST OF C.L.W. AND B.M.W., CHILDREN
From the County Court at Law
Bosque County, Texas
Trial Court No. CV21-309
MEMORANDUM OPINION
The father of C.L.W. and B.M.W. appealed from a judgment that terminated the
parent-child relationship between him and his children. See, generally, TEX. FAM. CODE
ANN. § 161.001. The father’s appointed counsel has filed an Anders brief asserting that
the appeal presents no issue of arguable merit and a motion to withdraw as counsel. 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 generally applicable to appeals of judgments that
terminate parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order).
Counsel advised the father that counsel had filed the brief pursuant to Anders and that
the father had the right to review the record and file a pro se response on his own behalf.
Counsel also stated that she provided the father with the clerk’s and reporter’s records in
this proceeding. The father did not file a pro se response with this Court.
Counsel included a recitation of the procedural history and relevant facts in the
Anders brief and asserted that she had reviewed the record for any potentially meritorious
issues, including jurisdictional issues, and determined there are no non-frivolous issues
to raise in this appeal. Counsel's brief discusses the sufficiency of the evidence as to each
of the predicate acts upon which the termination was granted, including Section
161.001(b)(1)(E), as well as best interest. Counsel's brief includes 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; see also In re Schulman, 252 S.W.3d 403,
406-408 (Tex. Crim. App. 2008).
Upon the filing of an 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 In re G.P., 503 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, we have
determined that the appeal is frivolous. Accordingly, we affirm the trial court's
judgment.
Counsel has filed a motion to withdraw as was historically required to comply
with the procedures set forth in Anders and its Texas progeny. However, in 2016, the
Texas Supreme Court stated that the lack of an arguable issue and the subsequent filing
In the Interest of C.L.W. and B.M.W., Children Page 2
of a motion to withdraw and an Anders brief in support is not considered to be "good
cause" for purposes of granting the Anders motion to withdraw pursuant to the Texas
Family Code. See In re P.M., No. 15-0171, 520 S.W.3d 24, 27-28 (Tex. 2016). 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 in this proceeding. Consequently, if
the father desires to file a petition for review, his appellate counsel remains appointed in
this case through any proceedings in the Texas Supreme Court unless otherwise relieved
of these duties. See In re P.M., 520 S.W.3d at 27.
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 Johnson, and
Justice Smith
Affirmed; Motion to withdraw denied
Opinion delivered and filed April 5, 2023
[CV06]
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