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In re T.R.N.

Court of Appeals of Texas, Fifth District, Dallas

July 24, 2019

IN THE INTEREST OF T.R.N. AND A.R.N., CHILDREN

          On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-17-00385-X

          Before Justices Bridges, Partida-Kipness, and Carlyle

          MEMORANDUM OPINION

          ROBBIE PARTIDA-KIPNESS, JUSTICE

         Father and Mother separately appeal from the trial court's decree terminating their parental rights to their children, T.R.N. and A.R.N. Father's appointed counsel and Mother's appointed counsel each filed briefs pursuant to Anders v. California, 386 U.S. 738 (1967), stating the record does not contain any reversible error that was preserved for appellate review and the appeals are without merit and frivolous. Respective counsel provided Father and Mother a copy of the briefs filed on their behalf and advised them of their right to examine the appellate record and file pro se responses. In addition, this Court provided both Mother and Father a copy of the Anders brief filed by their counsel and notified each of their right to examine the appellate record and to file a pro se response. Neither Father nor Mother filed a pro se response.

         In April 2017, the Texas Department of Family and Protective Services filed its petition seeking to terminate Mother's and Father's parental rights. The supporting affidavit indicated police made a referral of neglectful supervision to the Department after Mother's vehicle was stopped for an expired registration and a consensual search revealed a glass pipe with methamphetamines was in Mother's property. Both children were sleeping in the vehicle at the time of the stop. During the course of the Department's investigation, Mother admitted to using, and tested positive for, methamphetamines. Mother also indicated that she experienced past domestic violence[1] with Father, who was currently incarcerated.

         In October 2018, a bench trial was held. Mother and Father were both incarcerated at the time of trial, but each was separately represented by counsel. Evidence at trial confirmed the children came into the Department's care as a result of Mother's methamphetamine use. There was also evidence that Father, who was incarcerated throughout the case, had demonstrated a continuing pattern of criminal conduct that made him unable to provide the children with a safe environment. Neither parent had successfully completed the Department's family service plan. At the conclusion of the trial, the trial court terminated Father's and Mother's parental rights to T.R.N. and A.R.N. under sections 161.001(b)(1)(D) and (E) of the family code.[2] The trial court further found that termination of the parent-child relationship was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(2).

         The procedures established in Anders are applicable where, as here, appellants' appointed counsel concludes there are no non-frivolous issues to assert on appeal. See In re D.D., 279 S.W.3d 849, 849-50 (Tex. App.-Dallas 2009, pet. denied). This Court is not required to address the merits of each claim raised in an Anders brief or a pro se response. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); In re D.D., 279 S.W.3d at 850 (citing Bledsoe, 178 S.W.3d at 827). Instead, our duty is to determine whether there are any arguable grounds for reversal and, if so, to remand the case to the trial court so that new counsel may be appointed to address the issues. See In re D.D., 279 S.W.3d at 850.

         In their Anders briefs, appellate counsel for Father and Mother present a professional evaluation of the record demonstrating why there are no arguable grounds for reversal and concluding that Mother's and Father's appeals are both frivolous and without merit. See Anders, 386 U.S. at 744. We independently reviewed the entire record and counsel's Anders briefs, and we agree that the appeals are frivolous and without merit. We find nothing in the record that could arguably support the appeals.

         Father's counsel has filed a motion to withdraw as appellate counsel. In In re P.M., the Texas Supreme Court held that a court-appointed attorney's duties to a client in a parental rights termination case continue through the filing of a petition for review, and a motion to withdraw filed in the court of appeals may be premature unless good cause is shown. 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Counsel has not shown good cause for withdrawing from her representation of Father, and as a result, her obligations have not been discharged. See id. Accordingly, counsel's motion to withdraw is denied.

         We affirm the trial court's judgment terminating Mother's and Father's parental rights.

         CONCURRING OPINION

          CORY L. CARLYLE, JUSTICE

         I write with full recognition of the important process due to a person whose parental rights have been terminated. For that reason, I concur in the opinion, judgment, and order we issue today. My concern is the uneven application of rules on motions to withdraw when a court of appeals affirms after an attorney files an Anders brief.

         We correctly rely on In re P.M. to deny a court-appointed attorney's unopposed motion to withdraw because that case says Family Code section 107.016(3)(B)[1] means the attorney must continue representation until "the date all appeals in relation to any final order terminating parental rights are exhausted or waived." 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam). P.M. instructs that "appointed counsel's obligations can ...


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