I. R. v. Texas Department of Family and Protective Services
03-17-00559-CV
| Tex. App. | Nov 1, 2017Background
- Mother I.R. appealed a trial court order terminating her parental rights to her minor child under Tex. Fam. Code § 161.001 after the court found statutory grounds and that termination was in the child’s best interest.
- The Texas Department of Family and Protective Services was the appellee; the trial occurred in Travis County, 250th Judicial District.
- I.R.’s court-appointed appellate counsel filed an Anders brief and motion to withdraw, concluding the appeal was frivolous and presenting reasons why no arguable issues exist.
- Counsel certified she provided I.R. with the Anders materials and informed her of the right to examine the record and file a pro se brief; I.R. did not file a pro se brief.
- The Department filed a conditional response waiving its brief unless a pro se brief by I.R. made one necessary.
- The Court of Appeals conducted a full review of the record per Anders/Penson and found no arguable grounds; it affirmed the termination and denied counsel’s motion to withdraw, noting counsel’s duties under In re P.M. remain for any petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate issues exist supporting reversal of termination | I.R. (through counsel’s Anders brief) effectively conceded no non-frivolous issues; sought to preserve any arguable claims | DFPS argued no response needed unless I.R. files pro se brief; case record supports termination | Court found no arguable issues; appeal frivolous; affirmed termination |
| Whether counsel may withdraw after filing an Anders brief | Counsel argued withdrawal appropriate after filing Anders brief that shows no arguable issues | DFPS did not oppose withdrawal conditionally; appellate court must ensure full review | Court denied motion to withdraw, noting In re P.M. requires counsel to assist if I.R. seeks petition for review |
| Whether appellate court must conduct independent review on Anders submission | I.R. relied on Anders procedure | DFPS accepted Anders process; no pro se brief filed | Court conducted full review per Penson and Anders and found no reversible error |
| Whether counsel must assist with petition for review to Texas Supreme Court | Counsel suggested withdrawal; Anders brief filed | DFPS silent on this point | Court referenced In re P.M.: counsel’s obligation extends to filing a proper petition for review if client wishes |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (established procedure for counsel to move to withdraw when appeal is frivolous)
- Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641 (Tex. App.—Austin 2005) (applying Anders procedure in parental-termination appeal)
- Penson v. Ohio, 488 U.S. 75 (requires appellate court to conduct full examination of proceedings on receipt of an Anders brief)
- In re P.M., 520 S.W.3d 24 (Tex. 2016) (counsel’s duty in termination suits extends to proceedings in the Texas Supreme Court, including petition for review)