IN THE INTEREST OF AND CHILDREN v. <<

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Court of Appeals of Texas, Waco.

IN THE INTEREST OF A.G. AND K.G., CHILDREN

No. 10-17-00200-CV

Decided: December 06, 2017

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM OPINION

Candis E. appeals from an order that terminated the parent-child relationship between her and her children, A.G. and K.G. See TEX. FAM. CODE ANN. § 161.001 (West 2014). Candis's appointed counsel has filed a motion to withdraw and an Anders brief asserting that the appeal presents no issues of arguable merit. 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 applicable to appeals of orders terminating parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order). Counsel advised Candis that counsel had filed the brief pursuant to Anders and that Candis had the right to review the record and file a pro se response on her own behalf. Counsel also provided Candis with a copy of the record. Candis did file a response with this Court.

Counsel included a detailed recitation of the facts in the Anders brief and asserted that counsel reviewed the trial court's jurisdiction and the record for any potentially meritorious issues, and determined there is no non-frivolous issue to raise in this appeal. Counsel's brief discusses the sufficiency of the evidence relating to one ground of the three on which the termination was granted as well as the best interest of the children. Counsel's brief evidences 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; High v. State, 573 S.W.2d 807, 812-813 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 406-408 (Tex. Crim. App. 2008).

Upon the filing of the 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 Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also In re G.P., 535 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, as well as Candis's response, we have determined that the appeal is frivolous. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). Accordingly, we affirm the trial court's order of termination.

Counsel has filed a motion to withdraw as has historically been required in order to comply with the procedures set forth in Anders and its Texas progeny. However, the Texas Supreme Court has stated that the lack of an arguable issue and the subsequent filing of a motion to withdraw and an Anders brief in support may not be considered “good cause” for purposes of granting the Anders motion to withdraw pursuant to the Texas Family Code. See In the Interest of P.M., No. 15-0171, 2016 Tex. LEXIS 236, *7-8 (Tex. Apr. 1, 2016) (“[A]n Anders motion to withdraw brought in the court of appeals, in the absence of additional grounds for withdrawal, may be premature.”). 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. Consequently, if Candis desires to file a petition for review, counsel is still under a duty to timely file with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.” See id.

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.

Affirmed; Motion to withdraw denied

TOM GRAY Chief Justice