in the Interest of D.M., a Child
11-16-00225-CV
| Tex. App. | Jan 20, 2017Background
- The trial court appointed the Department of Family and Protective Services as permanent managing conservator of D.M.; the mother was named possessory conservator with limited possession and appealed.
- Appellant was represented by court-appointed counsel at the final hearing; an attorney ad litem was appointed months before the final hearing.
- Appellant’s court-appointed appellate counsel filed an Anders-style motion to withdraw, concluding the appeal was frivolous, and provided the appellant with the brief, records, and notice of her rights.
- Appellant filed a pro se response claiming she had been denied counsel and an opportunity to defend; the record contradicts those assertions.
- The court conducted an independent review under Anders/Schulman and determined the appeal is without merit and should be dismissed, but it denied counsel’s motion to withdraw in light of the Texas Supreme Court’s decision in In re P.M.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal presents arguable grounds warranting counsel to continue | Appellant alleges she was never given counsel and denied opportunity to defend | Court record shows appointed counsel and representation at final hearing; appellate counsel argues appeal is frivolous | Appeal lacks arguable grounds; dismissal affirmed |
| Whether appellate counsel satisfied Anders obligations | Appellant contends ineffective/absent representation | Appellate counsel provided Anders brief, records, explanatory letter, and informed appellant of rights | Counsel met Anders/Schulman/Kelly duties regarding briefing and client notice |
| Whether court should grant counsel’s motion to withdraw after filing Anders brief | Appellant seeks continued representation | Counsel moves to withdraw as appeal is frivolous | Motion to withdraw denied due to In re P.M. guidance; counsel must further satisfy obligations |
| Whether independent review supports dismissal | Appellant urges reversal based on lack of counsel/defense | Appellate court performed independent review and found no meritorious issue | Independent review finds appeal frivolous; appeal dismissed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes counsel’s duty to file a brief indicating lack of meritorious issues and to notify the client)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (procedures for Anders-type appellate practice in Texas)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (requirements for providing appellant access to the record and counsel’s duties)
- High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978) (precedent on appellate counsel responsibilities in frivolous appeal contexts)