E. S. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00105-CV
E. S., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. C2021-1059B, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING
MEMORANDUM OPINION
E.S. appeals from the trial court’s order terminating her parental rights to her
child. See Tex. Fam. Code § 161.001. After a bench trial, the trial court rendered judgment
finding by clear and convincing evidence that two statutory grounds existed for terminating
E.S.’s parental rights and that termination was in the child’s best interest. See id.
§ 161.001(b)(1), (E), (O), (b)(2).
Appellant’s court-appointed counsel has filed a brief concluding that the appeal
is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967); 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 because it “strikes an important balance between
the defendant’s constitutional right to counsel on appeal and counsel’s obligation not to
prosecute frivolous appeals” (citations omitted)). The brief meets the requirements of Anders by
presenting a professional evaluation of the record and demonstrating why there are no arguable
grounds to be advanced on appeal. See 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-termination case). Appellant’s counsel has certified to this Court
that he has provided E.S. with a copy of the Anders brief and informed her of her right to receive
a copy of the entire appellate record and file a pro se brief. The Department of Family and
Protective Services has filed a response to the Anders brief, waiving its right to file an appellee’s
brief unless requested by this Court or as needed to respond to any pro se brief filed by appellant.
To date, appellant has not filed a pro se brief.
We have conducted a full examination of all of the proceedings to determine
whether the appeal is wholly frivolous, as we must when presented with an Anders brief.
See Penson v. Ohio, 488 U.S. 75, 80 (1988). We have specifically reviewed the trial court’s
findings as to E.S. under part (E) of Family Code § 161.001(b)(1), and we have found no
non-frivolous issues that could be raised on appeal with respect to that finding. See In re N.G.,
577 S.W.3d 230, 237 (Tex. 2019) (holding that “due process and due course of law requirements
mandate that an appellate court detail its analysis for an appeal of termination of parental
rights under section 161.001(b)(1)(D) or (E) of the Family Code”). After reviewing the record
and the Anders brief, we find nothing in the record that would arguably support E.S.’s appeal.
We agree with appellant’s counsel that the appeal is frivolous and without merit. Accordingly,
we affirm the trial court’s order terminating the parental rights of E.S.1 We deny counsel’s
motion to withdraw.
1
The Texas Supreme Court has held that the right to counsel in suits seeking termination
of parental rights extends to “all proceedings [in the Texas Supreme Court], including the filing
of a petition for review.” In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (per curiam).
Accordingly, counsel’s obligations to E.S. have not yet been discharged. See id. If after
consulting with counsel appellant desires to file a petition for review, her counsel should timely
2
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Smith, and Jones*
Affirmed
Filed: May 17, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
file with the Texas Supreme Court “a petition for review that satisfies the standards for an
Anders brief.” See id.
3