653 S.W.3d 298
Tex. App.2022Background:
- Trial court terminated Ashley's parental rights to A.S. under Family Code §161.001(b)(1)(D) and (E) and based on the child's best interest.
- Ashley appealed; appointed counsel filed an Anders brief asserting there were no nonfrivolous issues.
- Counsel could not locate Ashley—the Anders brief was returned undeliverable—so counsel filed an affidavit describing efforts to find and notify Ashley.
- The Court considered whether the affidavit and Anders filing satisfied due process and Anders procedural requirements when the client is unlocatable.
- The Court independently reviewed the record, concluded the appeal was frivolous, and affirmed the trial court's termination order.
- Appointed counsel remains appointed for any Texas Supreme Court proceedings unless relieved.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Anders compliance and notice when client unlocatable | Counsel failed to satisfy Anders educational duties and did not adequately notify Ashley, denying due process | Counsel made diligent efforts to locate client and filed an affidavit; affidavit suffices to meet minimum due process and Anders requirements when client is missing | Affidavit was adequate; counsel met Anders/due-process obligations under the circumstances |
| Sufficiency of evidence for statutory termination grounds (§161.001(b)(1)(D) & (E)) | Termination not supported by legally sufficient evidence | Record contains sufficient evidence to support the statutory grounds | Court found sufficient evidence and affirmed those grounds |
| Best-interest finding | Termination was not in child’s best interest | Evidence supports the trial court’s best-interest determination | Court found evidence supported the best-interest conclusion |
| Whether appeal is frivolous after independent review | Appeal raises arguable merits | Anders brief and record demonstrate no nonfrivolous issues | Court independently reviewed record, agreed appeal was frivolous, and affirmed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (framework for counsel filing brief when asserting no nonfrivolous issues)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (standards for evaluating appointed counsel’s Anders-type brief)
- In re E.L.Y., 69 S.W.3d 838 (Tex. App.—Waco 2002) (Anders procedures apply to parental-termination appeals)
- In re D.D., 279 S.W.3d 849 (Tex. App.—Dallas 2009) (affirmance where Anders brief shows appeal is frivolous)
- In the Interest of G.P., 503 S.W.3d 531 (Tex. App.—Waco 2016) (appellate court’s duty to independently review record under Anders)
- McCoy v. Court of Appeals, 486 U.S. 429 (U.S. 1988) (definition and treatment of frivolous appeals)
- In the Interest of P.M., 520 S.W.3d 24 (Tex. 2016) (appointed counsel remains appointed through potential Supreme Court proceedings)