in the Interest of E.Z.G., a Child ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00131-CV
IN THE INTEREST OF E.Z.G., A CHILD
From the 74th District Court
McLennan County, Texas
Trial Court No. 2019-2789-3
MEMORANDUM OPINION
After Appellant’s parental rights to her child, E.Z.G., 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, asserting that she diligently reviewed
the record and that, in her 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 E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—
Waco 2002, order) (applying Anders to termination appeal).
1 The trial court found by clear and convincing evidence that Appellant had violated Family Code
subsections 161.001(b)(1)(D), (E), and (P) and that termination was in the child’s best interest. See TEX. FAM.
CODE ANN. § 161.001(b).
2 The parental rights of E.Z.G.’s father were also terminated, but he has not appealed.
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, 406 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 she has: (1)
examined the record and found no arguable grounds to advance on appeal and (2) served
a copy of the brief and the appellate record on Appellant. By letter, we informed
Appellant of her right to review the record and to file a pro se response. See Anders, 386
U.S. at 744, 87 S.Ct. at 1400; Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014);
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 408–09. Appellant has not filed a pro se
response.
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal 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
U.S. 429, 438 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
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support an appeal. 3 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 requirements 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 also remind
Appellant’s appointed appellate counsel that if Appellant, after consulting with counsel,
desires to file a petition for review, 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.” In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (per curiam); see In re G.P., 503 S.W.3d
531, 535 (Tex. App.—Waco 2016, pet. denied); see also TEX. FAM. CODE ANN. § 107.016.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed October 20, 2021
[CV06]
3Appellant’s counsel reviewed the sufficiency of the evidence supporting the trial court’s findings under
subsections 161.001(b)(1)(D) and (E) and determined that it would be frivolous to attack the findings. We
conclude that the evidence is sufficient to establish that Appellant violated subsection 161.001(b)(1)(E). See
In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam). The evidence here showed that Appellant tested
positive for methamphetamine during her pregnancy with E.Z.G. When E.Z.G. was then born, both his
meconium and urine tested positive for methamphetamine and amphetamine, and at that time, Appellant
also admitted her drug use to an investigator with the Department of Family and Protective Services. The
evidence showed that a monitored return was then later ordered during this case but that the monitored
return failed because Appellant and E.Z.G.’s father both relapsed and again used methamphetamines.
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