in the Interest of E.J.G., Z.M.E.G., and M.B.G., Children ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00217-CV
IN THE INTEREST OF E.J.G., Z.M.E.G., AND M.B.G., CHILDREN
From the County Court at Law
Navarro County, Texas
Trial Court No. D18-27516-CV
MEMORANDUM OPINION
Joshua G. appeals from a judgment that terminated the parent-child relationship
between him and his children, E.J.G., Z.M.E.G., and M.B.G. See, generally, TEX. FAM. CODE
ANN. § 161.001. Joshua's appointed counsel has filed a motion to withdraw and an Anders
brief asserting that the appeal presents no issue 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 generally applicable to appeals of judgments that terminate parental rights.
In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order). Counsel advised Joshua
that counsel had filed the brief pursuant to Anders and that Joshua had the right to review
the record and file a pro se response on his own behalf. Joshua has also been provided
with a copy of the record in this proceeding. Joshua did file a response with this Court,
with a list of potential issues.
Counsel included a recitation of the procedural history and relevant facts in the
Anders brief and asserted that she had reviewed the record for any potentially meritorious
issues and determined there are no non-frivolous issues to raise in this appeal. Counsel's
brief discusses the limited nature of the appealable issues due to the judgment being
granted based on a mediated settlement agreement and a voluntary affidavit of
relinquishment. Counsel's brief includes 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 an 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., 503 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 the
numerous issues raised in Joshua's response and the Department's reply within the
somewhat limited range of permissible issues in appeals of terminations of parental
rights based on affidavits of relinquishment and mediated settlement agreements, we
In the Interest of E.J.G., Z.M.E.G., and M.B.G., Children Page 2
have determined that the appeal is frivolous. Accordingly, we affirm the trial court's
judgment.
Counsel has filed a motion to withdraw as was historically 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, 520 S.W.3d 24, 27-28 (Tex. 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 in this proceeding. Consequently, if Joshua desires to file a
petition for review, his appellate counsel remains appointed in this case through any
proceedings in the supreme court unless otherwise relieved of these duties. See In re P.M.,
520 S.W.3d at 27.
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.
TOM GRAY
Chief Justice
In the Interest of E.J.G., Z.M.E.G., and M.B.G., Children Page 3
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed; Motion to withdraw denied
Opinion delivered and filed February 25, 2022
[CV06]
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