Tanika Martin v. Department of Family and Protective Services

Opinion issued February 5, 2009 In The Court of Appeals For The First District of Texas NO. 01-07-00842-CV TANIKA KENYA MARTIN, Appellant V. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2002-05185J MEMORANDUM OPINION After a bench trial, the trial court terminated the parental rights of appellant, Tanika Kenya Martin, to her child, A.J.M. (1) Martin's court-appointed appellate counsel filed a brief stating his conclusion that there is not a non-frivolous issue that could be presented on appeal and that any appeal would be without merit. Martin's counsel's brief includes a motion to withdraw, stating that he mailed a copy of the brief to her, along with a letter advising her of her right to file a pro se response. We affirm the judgment of the trial court and grant counsel's motion to withdraw. Background Appellee, Texas Department of Family and Protective Services (DFPS) filed its "Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent Child Relationship" on June 6, 2002. Without severing Martin's parental rights, the trial court entered an "Agreed Order Modifying Prior Order and Decree in Suit Affecting the Parent-Child Relationship" on January 6, 2005. On September 14, 2006, DFPS filed a "Motion to Modify Conservatorship, For Termination of the Parent-Child Relationship, and Suit for Protection of a Child in an Emergency." On September 17, 2007, after a 2-day bench trial, the trial court issued an interlocutory order stating that the circumstances of the child had materially and substantially changed since the trial court's January 6, 2005 order. The trial court appointed DFPS as the temporary managing conservator and removed Martin as the managing conservator. The trial court found that all of the requirements listed in section Family Code section 161.004 were met, (2) and it terminated the parent-child relationship between Martin and A.J.M. Martin filed a motion for new trial, which included her appellate points. In its order denying Martin's motion for new trial, the trial court ruled that Martin's appellate points were frivolous. The Anders Brief Standard Martin's court-appointed attorney filed a brief containing a professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 1400 (1967). Counsel concludes that the appeal has no merit. Counsel provided Martin with a copy of the brief and informed her of her right to review the record and file her own brief. See Onofre v. State, 193 S.W.3d 148, 149 (Tex. App.--Houston [1st Dist.] 2006, no pet.). DFPS waived its right to file a brief. This Court issued an order informing Martin of her right to file a pro se brief; however, Martin did not file a brief. 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.). 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, 509-10 (Tex. Crim. App. 1991) (quoting same passage from Anders). Our role in this Anders appeal is limited to determining whether arguable grounds for appeal exist. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). 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. at 826-27. 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 827-28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for 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 Court of Criminal Appeals). After reviewing the record and counsel's brief, we agree that the appeal is frivolous and without merit. Conclusion We affirm the judgment of the trial court. We grant appellant counsel's motion to withdraw. Evelyn V. Keyes Justice Panel consists of Justices Taft, Keyes, and Alcala. 1. A jury later determined that the father, Darrell Wheeler, should also have his parental rights terminated. He has not appealed. 2. Section 161.004 provides, (a) the court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if: (1) the petition under this section is filed after the date the order denying termination was rendered; (2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered; (3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and (4) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.004(a)(1)-(4) (Vernon 2002).