in the Interest of C.J., H.T., and B.T., Children , 2016 Tex. App. LEXIS 9480 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00143-CV
IN THE INTEREST OF C.J., H.T.,
AND B.T., CHILDREN
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 15-02989-16
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OPINION
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Appellants S.J. and B.P.T. appeal the trial court’s judgment terminating
S.J.’s parental rights to C.J., H.T., and B.T. and terminating B.P.T.’s parental
rights to H.T. and B.T. A jury found that clear and convincing evidence
established that S.J. and B.P.T. knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered their physical or
emotional well-being, engaged in conduct or knowingly placed the children with
persons who engaged in conduct that endangered their physical or emotional
well-being, and failed to comply with the provisions of a court order that
established the actions necessary to obtain the children’s return. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). The jury also found
that clear and convincing evidence showed that termination of S.J.’s and B.P.T.’s
parental rights is in the children’s best interest. See id. § 161.001(b)(2).
Both appellants’ court-appointed appellate attorneys have filed motions to
withdraw and Anders briefs in support of those motions, stating that after
diligently reviewing the record, they believe that an appeal is frivolous. See
Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967); see
also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003, no pet.)
(holding that Anders procedures apply in parental termination cases). The briefs
meet the requirements of Anders by presenting a professional evaluation of the
record and demonstrating why there are no arguable grounds to be advanced on
appeal. Although given the opportunity, neither S.J. nor B.T. filed responses.
As the reviewing appellate court, we must independently examine the
record to decide whether counsel is correct in determining that an appeal in this
case is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991); In re K.R.C., 346 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.).
Having carefully reviewed the record and the Anders briefs, we agree with
counsel that the appeal is frivolous. See K.R.C., 346 S.W.3d at 619. We find
nothing in the record that might arguably support either appellant’s appeal. See
In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied).
Accordingly, we affirm the trial court’s judgment.
However, we deny the motions to withdraw filed by S.J.’s and B.P.T.’s
counsels in light of In re P.M. because they do not show “good cause” other than
counsels’ determination that an appeal would be frivolous. No. 15-0171, 2016
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WL 1274748, at *3–4 (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.”); In re A.M., No. 01-16-00130-CV, 2016 WL
4055030, at *7 & n.2 (Tex. App.––Houston [1st Dist.] July 28, 2016, no pet. h.)
(noting that since In re P.M. was handed down, “most court of appeals affirming
parental termination orders after receiving Anders briefs have denied the
attorney’s motion to withdraw”).1 The supreme court has held that in cases such
as this, “appointed counsel’s obligations [in the supreme court] can be satisfied
by filing a petition for review that satisfies the standards for an Anders brief.”
In re P.M., 2016 WL 1274748, at *3.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DELIVERED: August 26, 2016
1
In In re M.M., No. 02-16-00004-CV, 2016 WL 2586640, at *1 (Tex. App.––
Fort Worth May 5, 2016, no pet.) (mem. op.), we abated the appeal for the trial
court to consider whether to appoint new counsel. However, the supreme court’s
ruling in In re P.M. allowed the courts of appeals to choose which appropriate
remedy would preserve an appellant’s right to counsel in accordance with section
107.013. In re P.M., 2016 WL 1274748, at *3–4 (“While an appellate court may
be equipped to rule on a motion to withdraw in many instances, it may decide
instead, as the court of appeals did in this case with a motion unrelated to any
Anders claim, to refer the motion to the trial court for evidence and a hearing.”);
see Tex. Fam. Code Ann. § 107.013 (West Supp. 2016).
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