O. J. I., Sr. v. Texas Department of Family and Protective Services ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00273-CV
O. J. I., Sr., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-19-002319, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
MEMORANDUM OPINION
O.J.I., Sr., appeals a final order terminating his parental rights to two children,
who were five and four years old at the time of trial. Following a three-day jury trial, the district
court rendered judgment finding by clear and convincing evidence that multiple statutory
grounds support terminating O.J.I.’s parental rights and that termination is in the best interest of
the children. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (b)(2). O.J.I. filed timely notice
of appeal.
O.J.I.’s court-appointed counsel has filed a motion to withdraw accompanied by a
brief concluding that any appeal is frivolous and without merit. See Anders v. California,
386 U.S. 738, 744 (1967) (stating that court-appointed counsel who believes appeal is wholly
frivolous should file motion to withdraw “accompanied by a brief referring to anything in the
record that might arguably support the appeal”); In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex.
2016) (per curiam) (approving use of Anders procedure in appeals from termination of parental
rights). Counsel’s brief meets the requirements of Anders by presenting a professional
evaluation of the record demonstrating that there are no arguable grounds for reversal to be
advanced on appeal. See 386 U.S. at 744; Taylor v. Texas Dep’t of Protective & Regul. Servs.,
160 S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied) (applying Anders procedure in
parental-rights termination case). Counsel has certified to this Court that he provided O.J.I. with
a copy of the Anders brief and motion to withdraw as counsel and a notice of his right to file a
pro se brief. O.J.I. did not file a brief.
Upon receipt of an Anders brief, we must conduct a full examination of the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75,
80 (1988). After reviewing the record and the briefing, we find nothing that would arguably
support a meritorious appeal. We thus agree with counsel that this appeal is frivolous and
without merit.
We nevertheless deny counsel’s motion to withdraw. In P.M., the Supreme Court
of Texas explained that a parent’s right to counsel in termination suits extends to “all
proceedings in [the Supreme Court of Texas], including the filing of a petition for review.”
520 S.W.3d at 27. Accordingly, counsel’s obligation to O.J.I. has not yet been discharged. See
id. If O.J.I., after consulting with counsel, desires to file a petition for review, counsel should
timely file with the high court “a petition for review that satisfies the standards for an Anders
brief.” See id. at 27–28.
For the reasons stated herein, we affirm the order terminating O.J.I.’s parental
rights and deny counsel’s motion to withdraw.
2
__________________________________________
Edward Smith, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: October 12, 2021
3