In the Interest of Y.B., a Child Appeal from 85th District Court of Brazos County (memorandum opinion )
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IN THE TENTH COURT OF APPEALS No. 10-16-00246-CV IN THE INTEREST OF Y.B., A CHILD From the 85th District Court Brazos County, Texas Trial Court No. 14-000579-CV-85 MEMORANDUM OPINION After Appellant’s parental rights to her child, Y.B., were terminated following a bench trial,1 Appellant’s appointed appellate counsel filed a notice of appeal.2 Appellant’s counsel has now filed an Anders brief and a motion to withdraw. Counsel asserts that he has diligently reviewed the record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Appellant’s rights were terminated under Family Code sections 161.001(b)(1)(D), 161.001(b)(1)(E), and 161.001(b)(1)(N). 1 2 The parental rights of the child’s father were also terminated, but he has not appealed. E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (applying Anders to termination appeal). Counsel’s brief meets the requirements of Anders; it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Appellant’s counsel has carefully discussed why, under controlling authority, there is no reversible error in the trial court’s order of termination. Counsel has informed us that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief and counsel’s motion to withdraw on Appellant; and (3) informed Appellant of her right to obtain a copy of the record and of her right to file a pro se response. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252 S.W.3d at 409 n.23. Appellant did not file a pro se response. Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 In the Interest of Y.B. Page 2 U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). We have reviewed the entire record and counsel’s brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the trial court’s order of termination. We deny counsel’s motion to withdraw in accordance with In re G.P., No. 10-1600068-CV, 2016 WL 5417458, at *3-4 (Tex. App.—Waco Sept. 28, 2016, no pet. h.). If Appellant, after consulting with counsel, desires to file a petition for review, Appellant’s appellate counsel is still under a duty to timely file with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.”3 See In re P.M., No. 15-0171, 2016 WL 1274748, at *3 (Tex. Apr. 1, 2016). REX D. DAVIS Justice We do not address whether counsel’s duty requires the filing of a petition for review or a motion for rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders proceedings. 3 In the Interest of Y.B. Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 30, 2016 [CV06] In the Interest of Y.B. Page 4
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