Mitchell has filed a letter requesting that this Court provide him the chance to retain his parental rights. He asserts that he is in prison because he resided in an area of town that was unacceptable to his parole officer. Mitchell explains he did not move because he lacked sufficient funds or options and refused to abandon his pregnant companion. He admits that C.A.M.'s mother has been a drug user. He states that, because he has been in prison, he has not seen C.A.M. He asserts that he will be released on parole in 2008 and requests the opportunity to show he can be a good father and to take whatever steps are necessary.
We are confined to reviewing whether appellant has shown that the trial court committed an error warranting reversal of the judgment. Mitchell's letter does not describe any error of law by the trial court. While we are sensitive to the poignant plea in his letter for a chance to prove his ability to be a good parent, the letter does not show that, based on the totality of the record, the trial court committed any reversible error in terminating his parental rights.
We affirm the termination of Mitchell's parental rights to C.A.M. We grant Mitchell's attorney's motion to withdraw as counsel for Mitchell.
Walter B. Mitchell v. Texas Department of Family and Protective Services, No. 03-07-00348-CV (Tex.App. - Austin, May 15, 2008)(Opinion by Justice Waldrop) (termination of parental rights on account of criminal conviction, incarceration) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Walter B. Mitchell v. Texas Department of Family and Protective Services
Appeal from 146th District Court of Bell County
M E M O R A N D U M O P I N I O N
Walter B. Mitchell (1) filed a notice of appeal from the district court's order terminating his parental rights to C.A.M. Mitchell's appointed appellate counsel examined the record and filed a brief asserting that he finds the appeal frivolous.
The district court found by clear and convincing evidence that Mitchell had engaged in conduct that endangered the physical and emotional well-being of the child. See Tex. Fam. Code Ann. § 161.001(1)(E) (West Supp. 2007). The district court also found by clear and convincing evidence that Mitchell knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement for more than two years from the date of the filing of the petition. (2) See id. § 161.001(1)(Q). Finding by clear and convincing evidence that termination of Mitchell's parental rights is in the child's best interest, see id. § 161.001(2), the district court terminated Mitchell's parental rights to C.A.M.
Mitchell's counsel has filed a brief consistent with the procedure outlined in Anders v. California. (3) 386 U.S. 738, 741-44 (1967). In the brief, Mitchell's appellate counsel concludes that the evidence of Mitchell's criminal history and incarceration supports the termination sufficiently to render the appeal frivolous.
Mitchell has several convictions, including burglaries of habitations, theft of a motor vehicle, and unauthorized use of a motor vehicle, dating back to 1978 and continuing through his most recent conviction in 1992. At the time of the hearing, he was serving a 45-year sentence for attempted burglary of a habitation. He was paroled in 2002, but that parole was revoked in August 2006. Although Mitchell asserted he would be released again on parole in July 2007, the Department of Criminal Justice projected a release date in 2018, and his 45-year sentence concludes in 2036.
Mitchell's counsel compared the evidence to the Holley factors to assess the child's best interest. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). C.A.M., born in September 2006, was not old enough to articulate his desires regarding parental rights at the May 2007 hearing. With C.A.M.'s mother's parental rights terminated, C.A.M. had emotional and physical needs that Mitchell could not satisfy while incarcerated. Mitchell's testimony that he violated his parole to stay with C.A.M.'s mother indicates that (1) he was with her when she was using cocaine daily while pregnant, and (2) that he risked leaving C.A.M.'s mother unattended in the event that his parole was revoked which, in fact, occurred. There was no evidence that Mitchell had taken or would take advantage of any prison programs to help him with parenting, that Mitchell had a specific plan for meeting C.A.M.'s needs, or that Mitchell had any explanation for his criminal history that would excuse his inability to care for C.A.M. Mitchell testified that, if released on parole, he had an address with C.A.M.'s mother--who, along with C.A.M., tested positive for cocaine at his birth (because of her self-described daily use of cocaine during her pregnancy), who continued to test positive for two months after his birth and removal from her care, who admitted using cocaine two days before the termination hearing, and whose parental rights to C.A.M. were terminated. He also testified that he had a job offer and a place to stay from his pastor and that he believed he could change and wanted the chance to be part of his child's life. There was evidence that C.A.M. had been with a foster family from early in his life and that the foster family wanted to adopt him.
Mitchell has filed a letter requesting that this Court provide him the chance to retain his parental rights. He asserts that he is in prison because he resided in an area of town that was unacceptable to his parole officer. Mitchell explains he did not move because he lacked sufficient funds or options and refused to abandon his pregnant companion. He admits that C.A.M.'s mother has been a drug user. He states that, because he has been in prison, he has not seen C.A.M. He asserts that he will be released on parole in 2008 and requests the opportunity to show he can be a good father and to take whatever steps are necessary.
We are confined to reviewing whether appellant has shown that the trial court committed an error warranting reversal of the judgment. Mitchell's letter does not describe any error of law by the trial court. While we are sensitive to the poignant plea in his letter for a chance to prove his ability to be a good parent, the letter does not show that, based on the totality of the record, the trial court committed any reversible error in terminating his parental rights.
We affirm the termination of Mitchell's parental rights to C.A.M. We grant Mitchell's attorney's motion to withdraw as counsel for Mitchell.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 15, 2008
1. Appellant testified that he is also known as Walter Boyd Brooks.
2. Mitchell's counsel notes that the district court failed to recite in open court that Mitchell engaged in his criminal conduct knowingly, but the termination decree contains that recitation.
3. In Anders, the United States Supreme Court held that a court-appointed defense attorney in a criminal case who determines, after fully examining the record, that an appeal is wholly frivolous and without merit must so advise the appellate court and then set forth any potential points of error and applicable law that might arguably support the appellant's position. Anders v. California, 386 U.S. 738, 741-44 (1967). This Court has accepted the use of this procedure by appointed counsel in parental rights termination cases. Taylor v. Texas Dep't of Prot. & Regulatory Servs., 160 S.W.3d 641, 647 n.4 (Tex. App.--Austin 2005, pet. denied). A frivolous appeal is one that lacks any basis in law or in fact. McCoy v. Court of Appeals of Wis., 486 U.S. 429, 438 n.10 (1988).
Showing posts with label Anders brief appeals. Show all posts
Showing posts with label Anders brief appeals. Show all posts
Tuesday, May 20, 2008
Sunday, March 2, 2008
AFFIRMED: Opinion by Justice Pemberton (Before Chief Justice Law, Justices Pemberton and Waldrop)
03-07-00414-CR
Deron Leon Woodson v. The State of Texas--Appeal from 264th District Court of Bell County
M E M O R A N D U M O P I N I O N
Appellant pleaded guilty to burglary of a habitation. See Tex. Penal Code Ann. § 30.02 (West 2003). The trial court adjudged him guilty and assessed punishment at ten years in prison.
Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.
We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.
The judgment of conviction is affirmed.
___________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: February 22, 2008
Do Not Publish
03-07-00414-CR
Deron Leon Woodson v. The State of Texas--Appeal from 264th District Court of Bell County
M E M O R A N D U M O P I N I O N
Appellant pleaded guilty to burglary of a habitation. See Tex. Penal Code Ann. § 30.02 (West 2003). The trial court adjudged him guilty and assessed punishment at ten years in prison.
Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.
We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.
The judgment of conviction is affirmed.
___________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: February 22, 2008
Do Not Publish
Wednesday, October 31, 2007
Tx DPFS Suits: Parental rights terminated; Appeal rejected as frivolous
Austin Court of Appeals affirms termination of parental rights on Anders Brief and allows attorney to withdraw. Parent did not file pro se brief to avoid determination that the appeal was frivolous.
Michelle Thomas v. Texas Department of Family and Protective Services, No. 03-07-00248-CV (Opinion by Justice Patterson)(TDPFS termination suit)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
Disposition: Trial cour order terminating parental rights affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,846-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Michelle L. Thomas, to her minor children, Kv.T. and Ks.T., and also terminating the parental rights of Jermaine Buchanan as to Kv.T. and Terrell Rigmadon as to Ks.T. as the alleged biological fathers. Thomas's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Thomas, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. We further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: October 31, 2007
Michelle Thomas v. Texas Department of Family and Protective Services, No. 03-07-00248-CV (Opinion by Justice Patterson)(TDPFS termination suit)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
Disposition: Trial cour order terminating parental rights affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,846-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Michelle L. Thomas, to her minor children, Kv.T. and Ks.T., and also terminating the parental rights of Jermaine Buchanan as to Kv.T. and Terrell Rigmadon as to Ks.T. as the alleged biological fathers. Thomas's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Thomas, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. We further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: October 31, 2007
Friday, October 26, 2007
Anders brief ends appeal in termination of parental rights case
James Boyd v. Texas Department of Family and Protective Services [TDFPS = Texas DFPS], N0. 03-06-00702-CV, (Tex.App.- Austin, Oct. 25, 2007)( Opinion by Chief Justice Law ) (Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 146th District Court of Bell County
Disposition: Affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,085-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
James Boyd brings this accelerated appeal from a final order terminating his parental rights to his minor children, G.B. and Y.B. Boyd is represented by court-appointed counsel who thoroughly reviewed the record and filed an Anders brief concluding that Boyd's appeal is frivolous and without merit. Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967); see also Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied).
Boyd was provided with copies of his counsel's brief and motion to withdraw. He was advised of his right to examine the record and to file a pro se brief. He has not filed a pro se brief or communicated with this Court in any way. Because our review of the record found nothing that would arguably support an appeal, we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and grant the motion to withdraw as counsel.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: October 26, 2007
Appeal from 146th District Court of Bell County
Disposition: Affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,085-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
James Boyd brings this accelerated appeal from a final order terminating his parental rights to his minor children, G.B. and Y.B. Boyd is represented by court-appointed counsel who thoroughly reviewed the record and filed an Anders brief concluding that Boyd's appeal is frivolous and without merit. Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967); see also Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied).
Boyd was provided with copies of his counsel's brief and motion to withdraw. He was advised of his right to examine the record and to file a pro se brief. He has not filed a pro se brief or communicated with this Court in any way. Because our review of the record found nothing that would arguably support an appeal, we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and grant the motion to withdraw as counsel.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: October 26, 2007
Friday, October 12, 2007
Order terminating parental rights affirmed on Anders brief
Dione West v. Texas Department of Family and Protective Services--Appeal from 146th District Court of Bell County
03-07-00254-CV (Tex.App.- Austin, Oct. 11, 2007)(Opinion by Justice Patterson)(termination of parental rights)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
Disposition: Affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 214,310-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Dione Monique West and Robert Lee West, Jr., to their minor children, M.W., Ra.W., Ro.W., and T.A.W., and also terminating the parental rights of Johnny Andrews to M.W. Dione West's court appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Dione West, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. We further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: October 11, 2007
03-07-00254-CV (Tex.App.- Austin, Oct. 11, 2007)(Opinion by Justice Patterson)(termination of parental rights)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
Disposition: Affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 214,310-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Dione Monique West and Robert Lee West, Jr., to their minor children, M.W., Ra.W., Ro.W., and T.A.W., and also terminating the parental rights of Johnny Andrews to M.W. Dione West's court appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Dione West, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. We further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: October 11, 2007
Wednesday, August 29, 2007
15-year old mother's parental rights terminated; home was overcrowded and filthy - appeal found frivolous per appointed counsel and DFPS
Candice Nicole White v. Texas Department of Family and Protective Services, No. 03-06-00587-CV (Tex.App.- Austin, Aug. 29, 2007)(Opinion by Justice Puryear )(termination of parental rights)(Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 119th District Court of Tom Green County
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-05-0083-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from a judgment terminating appellant Candice Nicole White's parental rights to her son, D.E.W. (1) D.E.W. was removed from White's care in March 2005, when he was about one week old and White was fifteen years old.
The Department began its investigation and decided to take custody of D.E.W. after receiving a report shortly after he was born alleging that the home in which he and White were living lacked electric and water service. A Department caseworker visited the home and learned that White and D.E.W. lived in the home with White's parents and two sisters. White's mother told the caseworker that she and her husband had been charged with drug possession and neglect of a disabled child when they lived in Utah and that the State of Utah had removed the children about seven years earlier. The caseworker observed that the home was unsanitary and cluttered with trash and that there were mattresses on the floor. There were no appropriate sleeping or living spaces for D.E.W., no observable infant items, including a crib, and no place to prepare food for the child. The Department alleged that D.E.W.'s father was twenty-two years old and had a criminal history, including charges of marihuana possession and sexual assault of a child due to his relationship with White, which began when she was fourteen and he was twenty-one.
After D.E.W. was removed from her care, White was ordered to undergo a drug assessment and psychological exam, attend counseling, and complete parenting classes. White's counseling and parenting classes through the Department were eventually cancelled due to non-compliance and her failure to appear, but she found a new class and a different therapist through other resources. Despite White's efforts, the Department moved ahead and sought termination because it believed she had not progressed sufficiently to provide a safe home for D.E.W.
There was testimony at trial that White and the baby were sharing the home with five other people--her parents, her sisters, and her seventeen-year-old sister's boyfriend. White's older sister and her boyfriend shared one room, and the rest of the family slept on mattresses on the floor in the living room. The family lacked a crib or other suitable place for D.E.W. to sleep and the caseworker was told that the infant would sleep on one of the mattresses on the floor, sharing it with White and her mother. The mattress in question was "urine-soaked," dirty, and lacked sheets. The family had four dogs, which were tied up in front of the house and behaved aggressively, and several cats in the residence. The caseworker testified that the house was filthy and that "there was evidence that there was smoking and drinking, things of this nature." White and her younger sister "had been missing a lot of school, had lice, [and had] different problems that continued to show a continued pattern of what we call chronic and high risk for children." In addition to removing D.E.W. from the home, the Department also removed White and her younger sister, but White and her sister were eventually returned to their parents custody. While D.E.W. was in the Department's custody, White's father obtained employment, which allowed the family to move into a cleaner, more suitable house. However, the Department's witnesses testified that D.E.W. had asthma, which raised concerns about White's parents' continuing to smoke in the house. The Department also presented evidence about on-going health and sanitation concerns and presented testimony by caseworkers, therapists, and instructors, who expressed concern that White was not prepared to care for an infant. Finally, the Department presented evidence that D.E.W. was doing well and had bonded to his foster family, who hoped to adopt him if White's parental rights were terminated.
The trial court ruled that White's parental rights should be terminated, finding that White had placed or allowed D.E.W. to remain in an unsafe environment and had engaged in or placed him with people who engaged in dangerous conduct and that termination was in the child's best interest. White's appointed counsel has filed a brief stating that after a thorough review of the record, she believes this appeal is frivolous. (2) The brief presents a thorough and professional evaluation of the record discussing and demonstrating why there are no arguable grounds for reversal. White has not filed a pro se brief, and her parents, who intervened at the trial court level, did not file a notice of appeal. The Department filed its own brief agreeing that the appeal is frivolous and explaining why it believes there are no arguable grounds for reversal.
We have conducted our own review of the record and we agree with counsel's assessment that the appeal is frivolous. We therefore affirm the trial court's judgment. We grant counsel's request to withdraw from the case.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 29, 2007
1. D.E.W.'s father's parental rights were also terminated.
2. This and other Texas courts have held that it is appropriate in a parental termination case to file a brief asserting that the appeal is frivolous, similar to the procedure used in criminal cases. See, e.g., Matthews v. Texas Dep't of Protective & Regulatory Servs., No. 03-04-00184-CV, 2005 Tex. App. LEXIS 1231, at *2 (Austin Feb. 17, 2005, no pet.) (mem. op.); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.--Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.--Houston [1st Dist.] 2003, no pet.).
Appeal from 119th District Court of Tom Green County
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-05-0083-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from a judgment terminating appellant Candice Nicole White's parental rights to her son, D.E.W. (1) D.E.W. was removed from White's care in March 2005, when he was about one week old and White was fifteen years old.
The Department began its investigation and decided to take custody of D.E.W. after receiving a report shortly after he was born alleging that the home in which he and White were living lacked electric and water service. A Department caseworker visited the home and learned that White and D.E.W. lived in the home with White's parents and two sisters. White's mother told the caseworker that she and her husband had been charged with drug possession and neglect of a disabled child when they lived in Utah and that the State of Utah had removed the children about seven years earlier. The caseworker observed that the home was unsanitary and cluttered with trash and that there were mattresses on the floor. There were no appropriate sleeping or living spaces for D.E.W., no observable infant items, including a crib, and no place to prepare food for the child. The Department alleged that D.E.W.'s father was twenty-two years old and had a criminal history, including charges of marihuana possession and sexual assault of a child due to his relationship with White, which began when she was fourteen and he was twenty-one.
After D.E.W. was removed from her care, White was ordered to undergo a drug assessment and psychological exam, attend counseling, and complete parenting classes. White's counseling and parenting classes through the Department were eventually cancelled due to non-compliance and her failure to appear, but she found a new class and a different therapist through other resources. Despite White's efforts, the Department moved ahead and sought termination because it believed she had not progressed sufficiently to provide a safe home for D.E.W.
There was testimony at trial that White and the baby were sharing the home with five other people--her parents, her sisters, and her seventeen-year-old sister's boyfriend. White's older sister and her boyfriend shared one room, and the rest of the family slept on mattresses on the floor in the living room. The family lacked a crib or other suitable place for D.E.W. to sleep and the caseworker was told that the infant would sleep on one of the mattresses on the floor, sharing it with White and her mother. The mattress in question was "urine-soaked," dirty, and lacked sheets. The family had four dogs, which were tied up in front of the house and behaved aggressively, and several cats in the residence. The caseworker testified that the house was filthy and that "there was evidence that there was smoking and drinking, things of this nature." White and her younger sister "had been missing a lot of school, had lice, [and had] different problems that continued to show a continued pattern of what we call chronic and high risk for children." In addition to removing D.E.W. from the home, the Department also removed White and her younger sister, but White and her sister were eventually returned to their parents custody. While D.E.W. was in the Department's custody, White's father obtained employment, which allowed the family to move into a cleaner, more suitable house. However, the Department's witnesses testified that D.E.W. had asthma, which raised concerns about White's parents' continuing to smoke in the house. The Department also presented evidence about on-going health and sanitation concerns and presented testimony by caseworkers, therapists, and instructors, who expressed concern that White was not prepared to care for an infant. Finally, the Department presented evidence that D.E.W. was doing well and had bonded to his foster family, who hoped to adopt him if White's parental rights were terminated.
The trial court ruled that White's parental rights should be terminated, finding that White had placed or allowed D.E.W. to remain in an unsafe environment and had engaged in or placed him with people who engaged in dangerous conduct and that termination was in the child's best interest. White's appointed counsel has filed a brief stating that after a thorough review of the record, she believes this appeal is frivolous. (2) The brief presents a thorough and professional evaluation of the record discussing and demonstrating why there are no arguable grounds for reversal. White has not filed a pro se brief, and her parents, who intervened at the trial court level, did not file a notice of appeal. The Department filed its own brief agreeing that the appeal is frivolous and explaining why it believes there are no arguable grounds for reversal.
We have conducted our own review of the record and we agree with counsel's assessment that the appeal is frivolous. We therefore affirm the trial court's judgment. We grant counsel's request to withdraw from the case.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Affirmed
Filed: August 29, 2007
1. D.E.W.'s father's parental rights were also terminated.
2. This and other Texas courts have held that it is appropriate in a parental termination case to file a brief asserting that the appeal is frivolous, similar to the procedure used in criminal cases. See, e.g., Matthews v. Texas Dep't of Protective & Regulatory Servs., No. 03-04-00184-CV, 2005 Tex. App. LEXIS 1231, at *2 (Austin Feb. 17, 2005, no pet.) (mem. op.); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.--Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.--Houston [1st Dist.] 2003, no pet.).
Tuesday, August 28, 2007
Anders Brief: Counsel excused from filing brief on the merits in appeal from order terminating parent's rights
Jessica Gutierrez v. Texas Department of Family and Protective Services, No. 03-06-00804-CV (Tex.App.- Austin, Aug. 28, 2007)(Opinion by Justice Patterson)(termination of parental rights, Anders brief)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 198th District Court of McCulloch County
FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
NO. 2005095, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from an order terminating the parental rights of Jessica Gutierrez to her minor child, J.E.G. Ms. Gutierrez's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Family & Protective Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Ms. Gutierrez, who was advised of her right to examine the record and to file a pro se brief. Ms. Gutierrez submitted a letter acknowledging that she has a medical condition but denying that she has neglected her child. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: August 28, 2007
Appeal from 198th District Court of McCulloch County
FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
NO. 2005095, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an appeal from an order terminating the parental rights of Jessica Gutierrez to her minor child, J.E.G. Ms. Gutierrez's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Family & Protective Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Ms. Gutierrez, who was advised of her right to examine the record and to file a pro se brief. Ms. Gutierrez submitted a letter acknowledging that she has a medical condition but denying that she has neglected her child. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: August 28, 2007
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