in the Interest of A.P., A.P., A.N.P., and A.M.P., Children

NO. 07-10-00481-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 9, 2011
IN THE INTEREST OF A.P., A.P., A.N.P., AND A.M.P.,
CHILDREN
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 35,607; HONORABLE PHIL VANDERPOOL, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellee, the Texas Department of Family and Protective Services, filed a
petition seeking termination of the parental rights of the biological parents of A.N.P. and
A.M.P.1 After a three-day trial, a jury rendered a verdict of termination and the trial court
signed an order terminating the parental rights of the father and mother to A.N.P. and
A.M.P. Appointed counsel for the father and mother timely filed a statement of
appellate points and notice of appeal.
1
We identify the children by their initials and the parents as the father and
mother, pursuant to Rule of Appellate Procedure 9.8. Tex. R. App. P. 9.8.
The trial court conducted a hearing according to Family Code § 263.405(d) to
determine if the appeal is frivolous. Tex. Fam. Code Ann. § 263.405(d)(1)-(3) (West
2008). In the resulting order, it found, based on the appellate points of the father and
mother and the provisions of § 263.405 and Civil Practice & Remedies Code §
13.003(b), an appeal would be frivolous. Tex. Fam. Code Ann. § 263.405(d)(3) (West
2008); Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (West 2002). Notwithstanding
this order, the father and mother may appeal, but the scope of review is initially limited
to the trial court’s finding of frivolousness. Tex. Fam. Code. Ann. § 263.405(g) (West
2008); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526 (Tex.App.--
Houston [1st Dist.] 2008, no pet.); In re K.D., 202 S.W.3d 860, 865 (Tex.App.--Fort
Worth 2006, no pet.). Appointed appellate counsel for the father and mother has filed a
motion to withdraw from the representation on the conclusion the appeal is frivolous.
He supports the motion with an Anders brief.2 By letter, we offered the father and
mother an opportunity to submit a response to their counsel’s Anders brief. Neither has
submitted a response.
We review the trial court’s finding of frivolousness under the abuse of discretion
standard. In re K.D., 202 S.W.3d at 866. Applying that standard, we decide whether
the trial court acted without reference to any guiding rules or principles; that is, whether
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Like
other Texas courts, we have applied the procedures of Anders in appeals involving
termination of parental rights. In re A.W.T., 61 S.W.3d 87, 88-89 (Tex.App.--Amarillo
2001, no pet.); see In re D.D., 279 S.W.3d 849, 849-50 (Tex.App.--Dallas 2009, pet.
denied) (listing cases).
2
its decision was arbitrary or unreasonable. Lumpkin, 260 S.W.3d at 527 (citing Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
Section 263.405(d)(3) of the Family Code requires the trial court to determine
whether an appeal from a final termination order is frivolous “as provided by section
13.003(b), Civil Practice and Remedies Code.” Tex. Fam. Code Ann. § 263.405(d)(3)
(West 2008). Section 13.003(b) provides that, “[i]n determining whether an appeal is
frivolous, a judge may consider whether the appellant has presented a substantial
question for appellate review.” Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (West
2002). An appeal is frivolous if it lacks an arguable basis either in law or in fact.
Lumpkin, 260 S.W.3d at 527.
By comparison, an Anders brief provides assurance to the appellate court that
counsel has thoroughly and conscientiously examined the record and the applicable
law, and has provided the court with the appropriate facts, procedural history, and "any
potentially plausible points of error.” In re Schulman, 252 S.W.3d 403, 407
(Tex.Crim.App. 2008) (orig. proceeding). The brief must also express and explain
counsel’s conclusion of “no plausible basis for appeal.” Id.
Here, in his Anders brief, counsel does not expressly address the trial court’s
finding of frivolousness.3 Rather, the brief describes counsel’s thorough review of the
3
But counsel and the trial court reached the same conclusion of frivolousness
based on consideration of the entire record. The same judge that tried the case
presided over the § 263.405(d) hearing. Although the hearing was brief, “[a] trial judge
judicially knows what has previously taken place in the case on trial.” Vahlsing, Inc. v.
Missouri Pac. R.R. Co., 563 S.W.2d 669, 674 (Tex.App.--Corpus Christi 1978, no writ)
(citing Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961)); see In re J.J.C.,
3
entire reporter’s record of the final hearing and his detailed analysis supporting his
conclusion that the appeal is frivolous. An appeal of a final termination order is limited
to the issues presented in the statement of points. See Tex. Fam. Code Ann. §
263.405(i) (West 2008); Lumpkin, 260 S.W.3d at 527. But cf. In re J.O.A., 283 S.W.3d
336, 339 (Tex. 2009) (holding § 263.405(i) does not prevent appellate consideration of
certain constitutional complaints not included in a statement of points). As other courts
have noted, it logically follows that a trial court’s determination of frivolousness
necessarily means the court has found each issue raised in the statement of points is
frivolous. See, e.g., Lumpkin, 260 S.W.3d at 527 (so stating). We therefore find implicit
in counsel’s determination that the appeal is frivolous the conclusion that the trial court
did not abuse its discretion by finding the appeal frivolous. Cf. In re J.J.C., 302 S.W.3d
436, 442-43 (Tex.App.--Houston [14th Dist.] 2009, pet denied) (construing parent’s
briefing to include challenge to finding of frivolousness even though parent did not
specifically assign error to the finding).
Although the trial court found the father and mother indigent and the appeal
frivolous, the reporter’s record of the final termination hearing, in addition to that of the §
263.405(d) hearing, is before us. See In re Q.W.J., 331 S.W.3d 9, 12 (Tex.App.--
Amarillo 2010, no pet.) (per curiam) (noting consequence of frivolous finding is
aggrieved parent is not entitled to free record of underlying proceeding). Because one
of appellants’ points challenges the legal and factual sufficiency of the evidence
302 S.W.3d 436, 446 (Tex.App.--Houston [14th Dist.] 2009, pet. denied) (following
Vahlsing).
4
supporting termination, we have examined the entire reporter’s record in determining
whether the trial court abused its discretion by finding the appeal frivolous.
Based on our examination of the entire record, we conclude the trial court did not
abuse its discretion in finding the appeal frivolous. We therefore grant counsel’s motion
to withdraw.4 The judgment of the trial court is affirmed.
James T. Campbell
Justice
4
Counsel remains obligated to inform the father and mother of the disposition of
this appeal and that they may, on their own, pursue a petition for review in the Supreme
Court of Texas. In the Interest of K.D., 127 S.W.3d 66, 68 n.3 (Tex.App.--Houston [1st
Dist.] 2003, no pet.) (citing Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997)).
5