in the Interest of E.L., a Child ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00247-CV
IN THE INTEREST OF E.L., A
CHILD
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 16-07283-16
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MEMORANDUM OPINION1
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Appellant B.L. (Mother) appeals the trial court’s final order terminating her
parental rights to E.L. See Tex. Fam. Code Ann. § 161.001(b) (West Supp.
2017). The trial court found by clear and convincing evidence that Mother’s
actions satisfied the grounds listed in family code section 161.001(b)(1)(D), (E),
(I), (N), (O), and (P) and alleged in the petition for termination and that
1
See Tex. R. App. P. 47.4.
termination of Mother’s parental rights was in E.L.’s best interest.2 See id.
§ 161.001(b)(1)(D), (E), (I), (N), (O), (P) & (b)(2). Mother’s appellate counsel has
filed a motion to withdraw as counsel and a brief, in which counsel states that
she has conducted a professional evaluation of the record and after a thorough
review of the applicable law, has reached the conclusion that there are no
arguable grounds to be advanced to support an appeal of this cause and that the
appeal is frivolous.
Counsel’s brief and motion present 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 (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-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 Mother of counsel’s intent to withdraw, provided her with a
copy of the appellate record and the Anders brief, and notified Mother that she
had the right to file a response to counsel’s brief. See Kelly v. State, 436 S.W.3d
313, 318–20 (Tex. Crim. App. 2014). This court also informed Mother of these
rights and gave her until November 6, 2017, to notify this court of her intent to
2
The trial court also terminated E.L.’s father’s parental rights, but he does
not appeal that determination.
2
respond. See id. Mother has not responded.3 Additionally, appellee the
Department of Family and Protective Services informed this court that it will not
respond to counsel’s motion to withdraw.
In reviewing an Anders brief, we are to independently determine whether
there are any arguable grounds for reversal and, thus, whether counsel was
correct in determining that the appeal is frivolous. See Stafford v. State,
813 S.W.2d 503, 511 (Tex. Crim. App. 1991); K.M., 2003 WL 2006583, at *2;
In re AWT, 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.). Our review of
the record reveals that Mother had notice of the grounds alleged for terminating
her parental rights and although she voluntarily did not appear for trial, had an
opportunity to defend against those grounds through the use of counsel, the
presentation of evidence, and the cross-examination of adverse witnesses.
Further, the evidence considered by the trial court legally and factually supported
the trial court’s findings that (1) Mother’s actions satisfied at least one ground
listed in section 161.001(b)(1) and alleged in the petition for termination 4 and
3
Our notifications to Mother, which we mailed to her two last-known
addresses, were returned as undeliverable. We additionally left phone
messages for Mother that were not returned. Mother’s appellate counsel also
informed us that she has been unable to contact Mother by phone and that the
mailing addresses we used were the only addresses counsel had for Mother as
well. Counsel did not state that her notification letter had been returned as
undeliverable.
4
As counsel notes in her brief, although the evidence arguably was not
sufficient to justify termination under section 161.001(b)(1)(P), the other five
section 161.001(b)(1) grounds alleged and proved supported the termination.
See In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).
3
(2) termination of Mother’s parental rights was in E.L.’s best interests under
section 161.001(b)(2). See generally In re A.B., 437 S.W.3d 498, 503 (Tex.
2014) (recognizing appellate court need not detail the evidence if affirming
termination judgment). These findings were based on credibility and weight-of-
the-evidence choices that we may not second-guess. See In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006); In re J.P.B., 180 S.W.3d 570, 573–74 (Tex.
2005); In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
We find nothing in the record that might arguably support Mother’s appeal;
thus, we affirm the trial court’s final order of termination. However, we deny
counsel’s motion to withdraw without prejudice as premature. See In re P.M.,
520 S.W.3d 24, 27 (Tex. 2016).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.
DELIVERED: December 7, 2017
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