in the Interest of R.B.M. Jr., a Child ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00122-CV
___________________________
IN THE INTEREST OF R.B.M., JR., A CHILD
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-692878-20
Before Kerr, Birdwell, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
This appeal arises from a suit affecting the parent–child relationship. Appellant
R.M. appeals the trial court’s order adjudicating that he is not the father of minor
child R.B.M., Jr.1 We will affirm.
II. BACKGROUND
In December 2020, the Department of Family and Protective Services (the
Department) filed its Original Petition in a Suit Affecting the Parent–Child
Relationship naming Appellant as R.B.M., Jr.’s alleged father. In the petition, the
Department requested, among other things, that the trial court determine whether
Appellant is actually R.B.M., Jr.’s father and terminate Appellant’s parental rights, if
any. The trial court appointed an attorney for Appellant. See Tex. Fam. Code Ann.
§ 107.013(a)(3).
In April 2022, the trial court, based on the results of DNA testing, entered an
order adjudicating that Appellant is not R.B.M., Jr.’s father. Having excluded
Appellant as the father2 and having received an affidavit of relinquishment of parental
1
We use initials to refer to the minor child as well as his family members and
alleged family members. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App.
P. 9.8(b)(2).
2
The trial court appointed Kayla Harrington as attorney ad litem for the
missing biological father of R.B.M., Jr. See Tex. Fam. Code Ann. § 107.013(a)(3).
However, Harrington filed a report reflecting that she had been unable to locate
R.B.M., Jr.’s biological father after a diligent search.
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rights from the child’s mother, the trial court terminated the parent–child relationship
and awarded permanent managing conservatorship of R.B.M., Jr. to the Department.
Appellant timely appealed.
In August 2022, Appellant’s appointed appellate counsel filed a brief and
corresponding motion to withdraw, stating that he has conducted a professional
evaluation of the record and has concluded that there are no arguable grounds to
support an appeal of the trial court’s order and that the appeal is frivolous. Counsel’s
brief presents the required professional evaluation of the record demonstrating why
there are no reversible grounds on appeal and referencing any grounds that might
arguably support the appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396,
1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003,
order) (holding Anders procedures apply in parental-rights-termination cases), disp. on
merits, No. 2-01-349-CV, 2003 WL 2006583 (Tex. App.—Fort Worth May 1, 2003, no
pet.) (mem. op.). Further, counsel informed Appellant of his right to request the
record and to file a pro se response.3 See Kelly v. State, 436 S.W.3d 313, 318–20 (Tex.
Crim. App. 2014). Appellant has not filed a response. The Department has notified
us that it does not intend to file a response to counsel’s Anders brief.
3
Prior to filing his Anders brief, counsel notified us that he was having difficulty
locating Appellant, and his brief indicates that he served it on Appellant by certified
mail at his last known address. Given that a party who fails to keep his attorney
informed of his current address forfeits the right to receive a copy of the Anders brief
and the right to file a pro se response, In re Schulman, 252 S.W.3d 403, 408 n.21 (Tex.
Crim. App. 2008), we hold that counsel complied with his Anders duties in this case.
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III. DISCUSSION
A. This appeal is frivolous.
In reviewing a brief that asserts an appeal is frivolous and that fulfills the
requirements of Anders, this court is obligated to undertake an independent
examination of the record to determine if any arguable grounds for appeal exist. See
In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied) (citing
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)). Having carefully
reviewed the record and the Anders brief, we conclude that there are no arguable
grounds for appeal; thus, we agree with counsel that Appellant’s appeal is frivolous.
See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). We affirm
the trial court’s order adjudicating that Appellant is not the father of R.B.M., Jr. See
Tex. R. App. P. 43.2(a).
B. Appellant’s appointed counsel remains his attorney.
We deny counsel’s motion to withdraw in light of the Texas Supreme Court’s
decision in In re P.M. because counsel has not shown “good cause” other than his
determination that an appeal would be frivolous. See 520 S.W.3d 24, 27 (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.”); cf. In re A.M., 495 S.W.3d
573, 582–83 & n.2 (Tex. App.—Houston [1st Dist.] 2016, pets. denied) (noting that
since P.M. was handed down, “most courts of appeals affirming parental termination
orders after receiving Anders briefs have denied the attorney’s motion to withdraw”).
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If Appellant wishes to pursue an appeal to the Texas Supreme Court, “appointed
counsel’s obligations can be satisfied by filing a petition for review that satisfies the
standards for an Anders brief.” P.M., 520 S.W.3d at 27–28.
IV. CONCLUSION
We agree with counsel’s Anders brief that this appeal is frivolous and affirm the
trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: January 26, 2023
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