in the Interest of Y.B., a Child ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00246-CV
IN THE INTEREST OF Y.B., A CHILD
From the 85th District Court
Brazos County, Texas
Trial Court No. 14-000579-CV-85
MEMORANDUM OPINION
After Appellant’s parental rights to her child, Y.B., were terminated following a
bench trial,1 Appellant’s appointed appellate counsel filed a notice of appeal.2
Appellant’s counsel has now filed an Anders brief and a motion to withdraw. Counsel
asserts that he has diligently reviewed the record and that, in his opinion, the appeal is
frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re
1Appellant’s rights were terminated under Family Code sections 161.001(b)(1)(D), 161.001(b)(1)(E), and
161.001(b)(1)(N).
2 The parental rights of the child’s father were also terminated, but he has not appealed.
E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (applying Anders to termination
appeal).
Counsel’s brief meets the requirements of Anders; it presents a professional
evaluation demonstrating why there are no arguable grounds to advance on appeal. See
In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief
need not specifically advance ‘arguable’ points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Appellant’s
counsel has carefully discussed why, under controlling authority, there is no reversible
error in the trial court’s order of termination. Counsel has informed us that he has: (1)
examined the record and found no arguable grounds to advance on appeal; (2) served a
copy of the brief and counsel’s motion to withdraw on Appellant; and (3) informed
Appellant of her right to obtain a copy of the record and of her right to file a pro se
response. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; High
v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252
S.W.3d at 409 n.23. Appellant did not file a pro se response.
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). An appeal is “wholly frivolous” or
“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486
In the Interest of Y.B. Page 2
U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988).
We have reviewed the entire record and counsel’s brief and have found nothing
that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex.
Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it
considered the issues raised in the briefs and reviewed the record for reversible error but
found none, the court of appeals met the requirement of Texas Rule of Appellate
Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the trial court’s
order of termination.
We deny counsel’s motion to withdraw in accordance with In re G.P., No. 10-16-
00068-CV, 2016 WL 5417458, at *3-4 (Tex. App.—Waco Sept. 28, 2016, no pet. h.). If
Appellant, after consulting with counsel, desires to file a petition for review, Appellant’s
appellate counsel is still under a duty to timely file with the Texas Supreme Court “a
petition for review that satisfies the standards for an Anders brief.”3 See In re P.M., No.
15-0171, 2016 WL 1274748, at *3 (Tex. Apr. 1, 2016).
REX D. DAVIS
Justice
3 We do not address whether counsel’s duty requires the filing of a petition for review or a motion for
rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders
proceedings.
In the Interest of Y.B. Page 3
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 30, 2016
[CV06]
In the Interest of Y.B. Page 4