In the Interest of A.F., A.F. and A.J., Children v. the State of Texas

NO. 12-23-00288-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF § APPEAL FROM THE

A.F., A.F. AND A.J., CHILDREN § COUNTY COURT AT LAW NO. 2

§ ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION
D.F. appeals his appointment as possessory conservator of his children. His counsel filed
a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.

BACKGROUND
D.F. is the father of A.A.F. and A.G.F., M.L. is the mother of A.F., A.F., and A.J., and D.J.
is the father of A.J. 1 On March 24, 2022, the Department of Family and Protective Services (the
Department) filed an original petition for protection of a child, for conservatorship, and for
termination of D.F.’s, M.L.’s, and D.J.’s parental rights. The Department was appointed
temporary managing conservator of A.A.F. and A.G.F., and D.F. was allowed limited access to,
and possession of, the children.
The evidence at trial showed that D.F. had not been present in court until the trial, had not
cooperated with the Department, and had not complied with requested drug testing. In addition,
D.F. had not seen his children in person in two years and had not communicated with them in
seven months. The evidence further showed that D.F. had criminal and drug history, including
going to rehab prior to trial. Furthermore, the children had been living with their grandmother
1
M.L. and D.J. are not parties to this appeal.
for two years, and D.F. conceded he had not provided any support for his children in the previous
five years.
At the conclusion of trial, the trial court found, by clear and convincing evidence, that
D.F. engaged in one or more of the acts or omissions necessary to support termination of his
parental rights under subsections (D), (E), and (O) of Texas Family Code Section 161.001(b).
However, it found that termination was not in the children’s best interest. The trial court
appointed D.F. possessor conservator of A.A.F. and A.G.F. after finding that appointing him
managing conservator would significantly impar the children’s physical health or emotional
development. The trial court further ordered supervised possession and access for D.F., drug
testing, and $50 per month in support for each child. This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
D.F.’s counsel filed a brief in compliance with Anders, stating that he has diligently
reviewed the appellate record and is of the opinion that the record reflects no reversible error and
that there is no error upon which an appeal can be predicated. The procedures set forth in
Anders are applicable to an appeal from a trial court’s order in a suit brought by the Department
of Family and Protective Services for the protection of a child, for conservatorship, or for
termination of parental rights. See In re M.R., No. 01-20-00845-CV, 2021 WL 2425245, at *1–2
(Tex. App.—Houston [1st Dist.] June 15, 2021, no pet.) (mem. op.); see, e.g., In re E.L.W., No.
01-17-00546-CV, 2017 WL 5712545, at *1 (Tex. App.—Houston [1st Dist.] Nov. 28, 2017, no
pet.) (mem. op.) (applying Anders procedures to appeal from final order in which trial court did
not terminate parental rights but appointed paternal grandparents as managing conservators and
parents as possessory conservators); In re J.E.L., No. 04-15-00634-CV, 2016 WL 1359354, at *1
(Tex. App.—San Antonio Apr. 6, 2016, pet. denied) (mem. op.) (applying Anders procedures to
appeal of trial court’s order in suit affecting the parent-child relationship in which trial court did
not terminate parental rights, but instead appointed children’s grandparents as their managing
conservators and children’s parents as possessory conservators).
In compliance with Anders, counsel’s brief presents a professional evaluation of the
record demonstrating why there are no reversible grounds on appeal and referencing any grounds
that might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mays v.
State, 904 S.W.2d 920, 922–23 (Tex. App.–Fort Worth 1995, no pet.).

2
As a reviewing court, we must conduct an independent evaluation of the record to
determine whether counsel is correct in determining that the appeal is frivolous. See Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904 S.W.2d at 923. We have
carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that
might arguably support the appeal. 2 See Taylor v. Tex. Dep’t of Protective & Regulatory Servs.,
160 S.W.3d 641, 646–47 (Tex. App.–Austin 2005, pet. denied).

DISPOSITION
We agree with D.F.’s counsel that the appeal is wholly frivolous. However, we deny
counsel’s request to withdraw. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). In In re P.M., the
Texas Supreme Court held that the right to counsel in suits seeking the termination of parental
rights extends to “all proceedings in [the Texas Supreme Court], including the filing of a petition
for review.” Id. Accordingly, counsel’s obligations to D.F. have not yet been discharged. See
id.; see also, Interest of G.C.L., No. 01-23-00591-CV, 2024 WL 234744, at *2 (Tex. App.—
Houston [1st Dist.] Jan. 23, 2024, no pet. h.) (mem. op.) (applying P.M. to appeal in which trial
court did not terminate parental rights). If D.F., after consulting with counsel, desires to file a
petition for review, counsel should timely file with the Texas Supreme Court “a petition for
review that satisfies the standards for an Anders brief.” In re P.M., 520 S.W.3d at 27; see A.C. v.
Tex. Dep’t of Family & Protective Servs., No. 03–16–00543–CV, 2016 WL 5874880, at *1 n.2
(Tex. App.–Austin Oct. 5, 2016, no pet.) (mem. op.). Accordingly, we affirm the trial court’s
judgment. See TEX. R. APP. P. 43.2.
BRIAN HOYLE
Justice

Opinion delivered March 28, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

2
Counsel for D.F. certified that he provided D.F. with a copy of the brief and informed him that he had the
right to file his own brief and took concrete measures to facilitate review of the record. See Kelly v. State, 436
S.W.3d 313, 319 (Tex. Crim. App. 2014); In the Matter of C.F., No. 03-18-00008-CV, 2018 WL 2750007, at *1
(Tex. App.—Austin June 8, 2018, no pet.) (mem. op.). D.F. was given the time to file his own brief, but the time for
filing such brief has expired and we have received no pro se brief.

3
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 28, 2024

NO. 12-23-00288-CV

IN THE INTEREST OF A.F., A.F. AND A.J., CHILDREN

Appeal from the County Court at Law No. 2
of Angelina County, Texas (Tr.Ct.No. CV-00158-22-03)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.