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Affirmed and Opinion filed April 29, 2004.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-03-00724-CV
____________
 
IN THE INTEREST OF D.E.S.,
A.L.G., C.W.M.G., II, AND M.P.G., CHILDREN

 

 
On Appeal from the 315th District Court
Harris County,
Texas

Trial Court Cause No. 98-06073J
 

 
O P I N I O N
 
In this accelerated appeal, we must decide if the briefing
requirements of Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
are appropriate and applicable in an appeal from an order terminating parental
rights and, if so, whether the brief in this case meets those
requirements.  We answer both questions
affirmatively and affirm the trial court=s judgment.


I. 
Background




Appellant Pamela Lervorne Verdun a/k/a Pamela Verdon Green
challenges the trial court=s order terminating her parental rights to her minor
children, A.L.G., C.W.M.G., II, and M.P.G.[1]  Appellant filed a pro se notice of
appeal.  Her appointed counsel filed an
appellate brief in which he concludes the appeal is wholly frivolous and
without merit.  Counsel=s brief presents a professional
evaluation of the record demonstrating why there are no arguable grounds to be
advanced.  See Anders, 386 U.S. at 744, 87 S. Ct.
at 1400.  Appellant=s counsel also filed a motion to
withdraw his representation of appellant. 
II. 
Applicability of Anders to Parental Termination Appeals 
This appears to be the first occasion for this court to
consider the applicability of the principles set forth in the landmark case of Anders
v. California, to an appeal of an order terminating parental rights.  In Anders, the United States Supreme
Court held that allowing court-appointed counsel to conclude an appeal had no
merit and withdraw from a criminal case by submitting a no-merit letter without
more explanation did not comport with fair procedure required by the Fourteenth
Amendment.  Anders, 386 U.S. at 741B44, 87 S. Ct.
at 1398B1400. 
In reaching this holding, the Anders court balanced the duty of
an appointed attorney in a criminal case to represent the client zealously
against the attorney=s obligation not to bring a frivolous appeal; the Supreme
Court concluded that an attorney subject to those conflicting duties may file a
brief demonstrating that there are no non‑frivolous points to urge on
appeal.  Anders, 386 U.S. at 744, 87 S. Ct.
at 1400. As a threshold matter, we must decide if these principles apply in the
appeal of an order terminating parental rights. 





Courts throughout the country have been confronting this
issue.  Though neither the Texas Supreme
Court nor this court has considered the matter, several of our sister courts of
appeals have concluded that a brief complying with Anders is appropriate
in an appeal from the termination of parental rights.  See In re K.D., 127 S.W.3d 66, 67
(Tex. App.CHouston [1st Dist.] 2003, no pet.); Porter
v. Tex. Dep=t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.CCorpus Christi 2003, no pet.); In
re K.M., 98 S.W.3d 774, 776 (Tex. App.CFort Worth 2003, order); Prewitt
v. Tex. Dep=t of Protective & Regulatory Servs., No. 03‑01‑00648‑CV,
2002 WL 31426200 (Tex. App.CAustin, Oct. 31, 2002, no pet.) (not designated for
publication); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.CWaco 2002, no pet.); In re AWT,
61 S.W.3d 87, 88 (Tex. App.CAmarillo 2001, no pet.); In re K.S.M., 61 S.W.3d 632,
634 (Tex. App.CTyler 2001, no pet.).  Courts in Alabama,[2]
Illinois,[3]
Ohio,[4]
Pennsylvania,[5]
South Dakota,[6]
Utah,[7]
and Wisconsin[8]
have reached the same conclusion and have extended the Anders principles
to parental-rights termination cases.




Courts in many other states, however, have evaluated the
issue from a different perspective and have reached the opposite conclusion.  These courts have expressly declined to
extend Anders to parental-rights termination cases.  See, e. g., Denise H. v. Ariz. Dep=t of Econ. Sec., 972 P.2d 241, 243 (Ariz. Ct. App.
1998); In re Sade C., 920 P.2d 716, 733 (Cal. 1996); N.S.H. v. Fla.
Dep=t of Children and Family Servs., 843 So.2d 898, 903 (Fla. 2003), cert.
denied, 124 S. Ct. 388, 157 L. Ed. 2d 282 (2003); In re Harrison,
526 S.E.2d 502, 503 (N.C. Ct. App. 2000); In re Hall, 664 P.2d 1245,
1248 (Wash. 1983).  At least one state=s high court has refused to resolve
the issue and has invited the state=s Attorney General to submit a brief
on the applicability of Anders to these types of cases.  See In re William P., 765 A.2d 76, 78
n.1 (Me.
2001).
Courts have not adopted a uniform approach in analyzing this
issue.  Many courts cite a fundamental
difference between criminal defendants and parties to a parental-rights
termination proceeding, and at least one has used this difference to justify
the opposite result. Compare Denise H., 972 P.2d at 243B44 (refusing to extend Anders
because a parent whose rights are terminated is not treated the same as a
criminal defendant, citing the difference in burdens of proof); In re Sade
C., 920 P.2d at 733B34 (stating Anders=s Aprophylactic@ procedures are limited to
representation of criminal defendants); N.S.H., 843 So.2d at 901B02 (distinguishing
parental-termination proceedings because they do not involve risk of loss of
physical liberty, records are often extensive, and Anders procedure could
cause delay); In re Harrison, 526 S.E.2d at 503 (agreeing with Arizona
court=s rationale in Denise H.); and
In re Hall, 664 P.2d at 1247B48 (concluding counsel should not be
allowed to withdraw in child-deprivation proceeding without client consent because,
unlike criminal defendant, parent may be incompetent and unable to raise
potentially meritorious issues) with In re V.E. and J.E., 611
A.2d 1267, 1275 (Pa. Super. Ct. 1992) (extending Anders and stating that
zealous advocacy is of particular importance in an involuntary termination
proceeding because the parent, unlike a criminal defendant, is never entitled
to a jury in Pennsylvania and can be deprived of a substantial right under an
ambiguous standard of proof).  Other
courts, including some Texas
courts of appeals, have found no distinction between the duties owed by
court-appointed counsel in a parental-rights termination proceeding and those
owed in a criminal proceeding.  See,
e.g., In re K.D., 127 S.W.3d at 67; In re K.S.M., 61 S.W.3d 632, 634
(Tex. App.CTyler 2001, no pet.); In re AWT,
61 S.W.3d at 88; L.C. v. State, 963 P.2d 761, 763B64 (Utah Ct. App. 1998).   




Although the Texas Supreme Court has not addressed the
applicability of Anders to parental-termination appeals, its holdings in
two recent cases are instructive.  Last
year, the Texas Supreme Court held that a Sixth Amendment right to effective
assistance of counsel exists in parental-rights termination cases.  See In re M.S., E.S., D.S., S.S., 115
S.W.3d 534, 544 (Tex.
2003).  In doing so, our high court
extended the Strickland test[9]
used in the criminal context to civil parental-rights termination
proceedings.  Id. at 545.  The procedure prescribed by the United States
Supreme Court in Anders derives from the Sixth Amendment right to
counsel.  See Anders, 386 U.S. at 742, 87 S. Ct.
at 1399.  Therefore, it seems logical to
conclude that the Texas Supreme Court would allow the filing of an Anders
brief derived from this right in the parental-rights termination context. 
Moreover, the Texas Supreme Court has extended Anders
to juvenile-delinquency proceedings based, in part, on the quasi‑criminal
nature of the proceedings.  See In re
D.A.S., 973 S.W.2d 296, 299 (Tex.
1998).  Although it has not yet
considered application of Anders procedures to parental-rights
termination appeals, it has recognized that the state=s interest in protecting the best
interests of children through judicial economy, certainty, and finality are not
outweighed by a parent=s fundamental liberty interest in the care, custody, and
control of his or her children.  In re
B.L.D., 113 S.W.3d 340, 354 (Tex. 2003) (holding due process does not
mandate that appellate courts review unpreserved complaints of charge error in
parental rights termination), cert. denied sub nom. Dossey v. Tex.
Dep=t of Protective and Regulatory Servs., No. 03-8432, 2004 WL 547224, ___ S.
Ct. ___ (2004).  This balancing of state
interests is manifested in legislative procedures that minimize the risk of
erroneous deprivation of parental rights. 
Id.





In applying the Anders procedures to a parental-rights
termination appeal, the Amarillo court of appeals reasoned that A[t]he rationale underlying Anders
is no less applicable to a civil matter in which counsel has been appointed to
represent the appellant@ because of the attorney=s need to balance zealous
representation of the client against the prohibition against prosecuting a
meritless appeal.  In re AWT, 61
S.W.3d at 88.  We agree with this
analysis.  Accordingly, we hold that the
procedures set forth in Anders are applicable to an appeal of the
termination of parental rights when an appointed attorney concludes that there
are no non‑frivolous issues to assert on appeal. 
In this case, a copy of counsel=s brief was delivered to
appellant.  Appellant was advised of her
right to examine the appellate record and file a pro se response.  See Stafford
v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); In re K.D.,
127 S.W.3d at 67.  More than sixty days
have elapsed, and as of this date, no pro se response or motion
requesting additional time has been filed.
We have reviewed the record and counsel=s appellate brief and agree the
appeal is wholly frivolous and without merit. 
Further, we find no reversible error in the record.  A discussion of the appellate brief would add
nothing to the jurisprudence of the state. 
III.  Conclusion
The briefing requirements of Anders are appropriate
and applicable in an appeal from an order terminating parental rights.  The appellate brief filed by appointed
counsel meets those requirements by demonstrating that the appeal has no
meritorious points.  Having concluded the
appeal is frivolous and that the requirements of Anders have been
satisfied, we grant counsel=s motion to withdraw, and affirm the trial court=s judgment.  
 
/s/        Kem Thompson Frost
Justice
 
Judgment rendered
and Opinion filed April 29, 2004.
Panel consists of
Chief Justice Hedges and Justices Frost and Guzman.
 




[1]  In the termination
order, the Department of Protective and Regulatory Services was appointed
managing conservator of appellant=s child,
D.E.S., and appellant was appointed possessory conservator.  Appellant did not challenge that part of the
judgment in her points on appeal filed with her motion for new trial.  See Tex.
Fam. Code Ann. ' 263.405(b) (Vernon 2002) (requiring party intending
to appeal such an order to file statement of points on appeal within 15 days
after order is signed).  In addition,
appellant=s rights to her child, L.G.V., were terminated in a
separate suit, and that appeal was assigned to the Court of Appeals for the
First District of Texas.  On February 12,
2004, the decree terminating appellant=s rights
to L.G.V. was affirmed.  See In re L.G.V.
a/k/a L.G., a child, No. 01-03-00591-CV, 2004 WL 253312 (Tex. App.CHouston [1st Dist.] February 12, 2004, no pet. h.)
(mem. op.) (holding no arguable grounds for appeal were present).  


[2]  See J.K.
v. Lee County, 668 So.2d 813, 816 (Ala. Civ. App. 1995) (extending Anders
to civil cases, but limiting use to those civil cases in which indigent client
has court-appointed attorney by statute).


[3]  See In re
Keller, 486 N.E.2d 291, 292 (Ill. Ct. App. 1985).


[4]  See Morris
v. Lucas Co. Children Servs., 550 N.E.2d 980, 981 (Ohio Ct. App.
1989).


[5]  See In re
V.E. and J.E., 611 A.2d 1267, 1275 (Pa.
Super. Ct.
1992).


[6]  See People
ex rel. S.D. Dep=t of Social Servs., No. 22947, 2004 WL 693429, ____ N.W.2d ____, ____ (S.D. Mar. 31,
2004) (per curiam).


[7]  See L.C. v.
State, 963 P.2d 761, 764 (Utah Ct. App. 1998).


[8]  See In re
J.R.W., No. 88-0805-NM, 1989 WL 41413, *1 (Wis. Ct. App. Feb. 8, 1989) (not
designated for publication).


[9]  Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(setting forth the two-prong test for ineffective assistance of counsel claims
in criminal proceedings:  (1) trial
counsel=s representation fell below an objective standard of
reasonableness, based on prevailing professional norms; and (2) there is a
reasonable probability that the result of the proceeding would have been
different but for trial counsel=s deficient performance).


