Anne Garrett v. Department of Family and Protective Services--Appeal from 313th District Court of Harris County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00982-CV

ANNE GARRETT, Appellant

V.

DEPARTMENT OF FAMILY AND PROTECTIVE

SERVICES, Appellee //

On Appeal from the 313th District Court

Harris County, Texas

Trial Court No. 2002-04982J

MEMORANDUM OPINION

After a non-jury trial, the trial court rendered a final order terminating the parental rights of appellant, Anne Garrett, to her child, C.G. The order also terminated the parent-child relationship between C.G. and her father, who does not appeal. // Appellant s court-appointed appellate counsel filed a brief concluding that there is no non-frivolous issue that could be presented on appeal and that any appeal would be without merit. Appellate counsel s brief includes a motion to withdraw, stating that he mailed a copy of the brief to appellant, along with a letter advising her of her right to file a pro se brief. We affirm the trial court s order and grant counsel s motion to withdraw. BackgroundAppellee, Department of Family and Protective Services ( DFPS ), filed its Original Petition for Protection of a Child, for Conservatorship and for Termination of the Parent-Child Relationship on May 31, 2002. // Appellant agreed to undergo diagnostic psychological evaluations and to take parenting classes. The agreement also provided for appellant s visitation times with C.G. and child support payments of $159 per month to DFPS. The trial court accepted the agreement of the parties in an order signed November 24, 2003. DFPS then filed its Original Motion to Modify Conservatorship and for Termination of the Parent-Child Relationship on February 14, 2005. On September 6, 2005, the trial court held a termination hearing.

On September 28, 2005, the trial court entered an order modifying the Agreed Final Order in Suit Affecting the Parent-Child Relationship, terminating the parental rights of appellant and C.G. s father. The trial court found by clear and convincing evidence that termination of the parent-child relationship was in the best interest of the child and recited in its order the grounds for termination of appellant s parental rights, explaining that appellant had:

9.2.1engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to Section 161.001(1)(E) of the Texas Family Code;

9.2.2failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child s removal from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to Section 161.001(1)(O) of the Texas Family Code;

. . . .

Appellant s counsel has advised the Court that he has reviewed the record and concluded that there is no non-frivolous issue that could be presented on appeal. Appellant s counsel submitted an Anders brief // and motion to withdraw as counsel on May 1, 2006. This brief met the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal. Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App. Houston [1st Dist.] 2006, no pet.). Appellant did not file a response by the deadline.

Anders Procedure

Anders procedures are appropriate in parental-rights termination cases. In re K.D., 127 S.W.3d 66, 67 (Tex. App. Houston [1st Dist.] 2003, no pet.); see In re D.E.S., 135 S.W.3d 326, 329 (Tex. App. Houston [14th Dist.] 2004, no pet.); Porter v. Tex. Dep t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App. Corpus Christi 2003, no pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App. Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App. Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App. Tyler 2001, no pet.). The procedures set forth in Anders are applicable to an appeal of the termination of parental rights when an appointed attorney concludes that there are no non-frivolous issues to assert on appeal. In re K.D., 127 S.W.3d at 67.

The brief submitted by appellant s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. 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 Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant s counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of her right to review the record and to file a pro se response. DFPS waived its opportunity to file an appellee s brief.

When we receive an Anders brief from an appellant s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court and not counsel determines, after full examination of proceedings, whether case is wholly frivolous ); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (quoting same passage from Anders). In conducting our review, we consider any pro se response that the client files to his appointed counsel s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826 28 (Tex. Crim. App. 2005).

Our role in this Anders appeal is limited to determining whether arguable grounds for appeal exist. See Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. See id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised. Id.

If, on the other hand, we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826 28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Texas Supreme Court. Cf. id. at 827 & n.6 (stating that appellate court s conclusion that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Texas Court of Criminal Appeals).

In accordance with Anders and Bledsoe, we have reviewed the record and appellant s appointed counsel s Anders brief and conclude that no reversible error exists.ConclusionWe therefore affirm the judgment of the trial court. We grant counsel s motion to withdraw. // Cf. Stephens v. State, 35 S.W.3d 770, 771 (Tex. App. Houston [1st Dist .] 2000, no pet.).

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Hanks.