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In re K.W.

Court of Appeals of Texas, Tenth District

September 6, 2017

IN THE INTEREST OF K.W., D.W. AND K.W., CHILDREN

         From the 77th District Court Limestone County, Texas Trial Court No. CPS-275-A

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          MEMORANDUM OPINION

          TOM GRAY, CHIEF JUSTICE.

         Kimberly and Roger appeal from an order that terminated the parent-child relationship between them and their children, K.W., D.W., and K.W. See Tex. Fam. Code Ann. § 161.001 (West 2014).

         Kimberly's and Roger's appointed counsel has filed an Anders brief[1] 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 Kimberly and Roger that counsel had filed the brief pursuant to Anders and that Kimberly and Roger had the right to review the record and file a pro se response on their own behalf. Counsel also provided Kimberly and Roger with a copy of the record. Kimberly and Roger filed a response with this Court; the Department did not.

         Counsel asserts in the Anders brief that counsel reviewed the trial court's jurisdiction and the entire record for any potentially meritorious issues, and determined there is no non-frivolous issue to raise in this appeal. 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).

         In their response to counsel's Anders brief, Kimberly and Roger assert that the visitation schedule was not accommodating to their location and work schedules; testimony regarding therapy was not consistent with what was actually occurring; they stopped seeing one therapist because they felt they were not being counseled but rather were being interrogated; and since January of 2016, they have had a stable and clean home for the children.

         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 M.A.R., No. 10-10-00237-CV, 2011 Tex.App. LEXIS 3596, at *2 (Tex. App.-Waco May 11, 2011, no pet.) (mem. op.). 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 Kimberly's and Roger'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.

         We note that counsel did not file 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."). Accordingly, we no longer require a motion to withdraw when filing an Anders brief in an appeal of an order terminating parental rights. See In the Interest of G.P., 503 S.W.3d 531, 535-36 (Tex. App.-Waco 2016, pet. denied). Consequently, if Kimberly and Roger desire 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.

         Affirmed.

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Notes:

[1] In a criminal case where an attorney has determined the appeal to be frivolous, the attorney must file a motion to withdraw accompanied by an "Anders brief" which assures the appellate court that the motion to withdraw is "well-founded." In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). There is no other option. In contrast, the Texas Supreme Court has determined that a frivolous appeal is not good cause to allow withdrawal of counsel. In the Interest of P.M., No. 15-0171, 2016 Tex. LEXIS 236, at *8 (Tex. Apr. 1, 2016). Thus, in civil termination ...


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