E. L. v. Department of Family and Protective Services ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00462-CV
E. L., Appellant
v.
Department of Family and Protective Services, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-20-006077, THE HONORABLE CLEVE WESTON DOTY, JUDGE PRESIDING
MEMORANDUM OPINION
E.L. appeals from the trial court’s order terminating her parental rights to her
daughter T.C. See Tex. Fam. Code § 161.001. After a jury trial, the trial court rendered
judgment finding by clear and convincing evidence that several statutory grounds existed for
terminating E.L.’s parental rights and that termination was in the child’s best interest. See id.
§ 161.001(b)(1) (E), (M), (O), (P), (R), (b)(2).
E.L.’s court-appointed counsel has filed a brief concluding that the appeal is
frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967); 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 because it “strikes an important balance between the
defendant’s constitutional right to counsel on appeal and counsel’s obligation not to prosecute
frivolous appeals” (citations omitted)). The brief meets 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. See 386 U.S. at 744; Taylor v. Texas Dep’t of Protective &
Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (applying
Anders procedure in parental-termination case). E.L.’s counsel has certified to this Court that he
has provided her with a copy of the Anders brief and informed her of her right to receive a copy
of the entire appellate record and file a pro se brief. The Department of Family and Protective
Services has filed a response to the Anders brief, waiving its right to file an appellee’s brief. To
date, E.L. has not filed a pro se brief.
We have conducted a full examination of all of the proceedings to determine
whether the appeal is wholly frivolous, as we must when presented with an Anders brief. See
Penson v. Ohio, 488 U.S. 75, 80 (1988). We have specifically reviewed the trial court’s findings
as to E.L. under part (E) of subsection 161.001(b)(1) of the Family Code, and we have found no
non-frivolous issues that could be raised on appeal with respect to that finding. See In re N.G.,
577 S.W.3d 230, 237 (Tex. 2019) (explaining due process and due course of law considerations
pertaining to terminations under section 161.001(b)(1)(D) or (E) of Family Code). After
reviewing the record and the Anders brief, we find nothing in the record that would arguably
support E.L.’s appeal. We agree with E.L.’s counsel that the appeal is frivolous and without
merit. Accordingly, we affirm the trial court’s order terminating E.L.’s parental rights. We deny
counsel’s motion to withdraw.1
1
The Texas Supreme Court has held that the right to counsel in suits seeking termination
of parental rights extends to “all proceedings [in the Texas Supreme Court], including the filing
of a petition for review.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam).
Accordingly, counsel’s obligations to E.L. have not yet been discharged. See id. If after
consulting with counsel E.L. desires to file a petition for review, her counsel should timely file
with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders
brief.” See id.2
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: November 18, 2022
3