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In re G.W.

Court of Appeals of Texas, Fifth District, Dallas

December 1, 2017

IN THE INTEREST OF G.W., A CHILD

         On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-16-00551-X

          Before Justices Lang, Myers, and Stoddart.

          MEMORANDUM OPINION

          DOUGLAS S. LANG JUSTICE.

         Mother appeals from the trial court's order appointing her permanent possessory conservator of her daughter G.W. Mother's court-appointed appellate counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating Mother's appeal is wholly without merit and frivolous. See id. at 744; In re D.D., 279 S.W.3d 849, 850 (Tex. App.-Dallas 2009, pet. denied).

         We affirm the trial court's order, but deny counsel's motion to withdraw.

         I. FACTUAL AND PROCEDURAL CONTEXT

         After receiving and investigating allegations of substance abuse and domestic violence respecting Mother and Father, the Texas Department of Family and Protective Services (the "Department") filed a petition seeking conservatorship of G.W. and termination of the parental rights of both parents pursuant to section 161.001 of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2017). An affidavit attached to the petition stated in part the Department had received a referral alleging Mother "is a victim of domestic violence" by Father and "was trying to get into a domestic violence shelter." Additionally, a Department report filed in the trial court stated in part that at the time G.W. was removed from the parents' home pursuant to this case, Mother had bruises on her arm, a black eye, and a cut lip, all of which she "did not want to talk about."

         Subsequently, represented by separate appointed counsel, Mother and Father entered into a mediated settlement agreement with the Department (the "MSA"). The MSA provided in part (1) Mother shall be appointed as possessory conservator of G.W., (2) Father, his cousin, and his cousin's spouse shall be appointed joint managing conservators, and (3) all parties agree the MSA is in the best interest of G.W.

         At the hearing to prove-up the MSA, a Department caseworker testified she believed (1) the MSA is in the best interest of G.W. and (2) the appointment of Mother as the managing conservator of G.W. "would significantly impair the child's physical health, emotional development." Additionally, Mother's trial counsel stated, "I have no witnesses, Judge. My client did participate in the MSA, and she did sign off on it. And she does believe that this MSA is in the best interest of the child." Further, G.W.'s attorney ad litem and Father's trial counsel stated they agreed with the terms of the MSA.

         Following that hearing, the trial court signed an "Order Appointing a Permanent Managing Conservator." The order stated in part, "The Court finds that the parties have entered into a binding mediated settlement agreement; that said mediated settlement agreement is [in] the child's best interests; and hereby adopts the same as the binding Order of the Court, incorporated by reference herein and attached hereto." This appeal timely followed.

         II. APPLICABLE LAW

         In reviewing an Anders brief, our duty is to determine whether there are any arguable grounds for reversal and, if there are, to remand the case to the trial court for the appointment of new counsel. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); In re D.D., 279 S.W.3d at 850.

         The Texas Family Code provides that a trial court may refer a suit affecting the parent-child relationship to mediation. Fam. Code § 153.0071(c). If the parties reach an agreement and the agreement meets the statutory requirements, it is binding on the parties and a party is entitled to judgment on the agreement notwithstanding Texas Rule of Civil Procedure 11 or another rule of law. See id. § 153.0071(d)-(e); In re L.M.M., 247 S.W.3d 809, 811-12 (Tex. App.-Dallas 2008, pet. denied). However, a court may decline to enter a judgment on a mediated settlement agreement if the court finds (1) "a party to the agreement was a victim of family violence, and that circumstance impaired the party's ability to make decisions, " and (2) "the agreement is not in the child's best interest." Fam. Code § 153.0071(e-1).

         III. APPLICATION ...


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