in the Interest of N. J. v. Department of Family and Protective Services

Opinion issued October 13, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-20-00406-CV
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IN THE INTEREST OF N.J., A CHILD
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Case No. 18DCV0405
MEMORANDUM OPINION
This is an appeal from the trial court’s final decree of termination in a suit
brought by the Department of Family and Protective Services (DFPS) to terminate
the parent-child relationship between Th.J., M.M. (alleged fathers) and T.J.
(mother) and the child, N.J. In its decree, the trial court terminated all parents’
parental rights and appointed DFPS as sole managing conservator of the child.
Th.J., M.M., and T.J. filed notices of appeal, and the trial court appointed Amy
Blythewood to prosecute their appeals. Appellants court-appointed appellate
counsel filed Anders briefs, stating that, in her professional opinion, her clients’
appeals are without merit and there are no arguable grounds for reversal. See
Anders v. California, 386 U.S. 738, 744 (1967).
Anders procedures are appropriate in an appeal from a trial court’s final
order in a parental-rights termination suit. In re K.D., 127 S.W.3d 66, 67 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). In this case, appellants were served by
publication and their whereabouts are unknown. A defendant who fails to keep his
attorney informed of his current address forfeits the right to receive a copy of the
Anders brief and the right to file a pro se brief. See In re Schulman, 252 S.W.3d
403, 408 n.21 (Tex. Crim. App. 2008). Appellants have not filed a response, and
DFPS has waived its right to respond.
The brief submitted by appellants’ appointed appellate counsel states her
professional opinion that no arguable grounds for reversal exist and that any appeal
would therefore lack merit. See Anders, 386 U.S. at 744. Counsel’s brief meets the
minimum Anders requirements by presenting a professional evaluation of the
record and stating why there are no arguable grounds for reversal on appeal. See id.
at 744; In re Schulman, 252 S.W.3d at 406–07.
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When we receive an Anders brief from an appointed attorney who asserts
that no arguable grounds for appeal exist, we independently determine whether
arguable grounds exist by conducting our own review of the entire record. Johnson
v. Dep’t of Family & Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806,
at *1 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem. op.); see In re
K.D., 127 S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330 (Tex. App.—Houston
[14th Dist.] 2004, no pet.). If our independent review of the record leads us to
conclude that the appeal is frivolous, we may affirm the trial court’s judgment by
issuing an opinion in which we explain that we have reviewed the record and find
no reversible error. See Johnson, 2010 WL 5186806, at *2.
We have independently reviewed the record and conclude that there are no
arguable grounds for review, that no reversible error exists, and therefore
appellants’ appeals are frivolous. See Anders, 386 U.S. at 744 (emphasizing that
reviewing court—and not counsel—determines, after full examination of
proceedings, whether appeal is wholly frivolous); In re A.M., 495 S.W.3d 573, 582
(Tex. App.—Houston [1st Dist.] 2016, pet. denied). Accordingly, we affirm the
trial court’s termination order as to Th.J., MM. and T.J.
As is proper, appellant counsel has not filed a motion to withdraw because
this is a parental termination case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016)
(holding that Anders brief in parental termination case is not “good cause”
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sufficient to justify counsel’s withdrawal); In re A.M., 495 S.W.3d at 582. A
counsel’s duties to her clients extend through the exhaustion or waiver of “all
appeals.” In re A.M., 495 S.W.3d at 583 (citing TEX. FAM. CODE § 107.016). If
either Th.J., M.M., or T.J. chooses to pursue a petition for review to the Supreme
Court of Texas, “appointed counsel’s obligations can be satisfied by filing a
petition for review that satisfies the standards for an Anders brief.” In re P.M., 520
S.W.3d at 27–28.
We affirm the trial court’s order terminating Th.J’s, M.M.’s, and T.J.’s
parental rights to the child, N.J.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Hightower and Adams.
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