NO. 07-10-0204-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
AUGUST 9, 2011
______________________________
IN THE INTEREST OF J.R. AND A.G.S., CHILDREN
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-550,085; HONORABLE KEVIN C. HART, JUDGE
_______________________________
Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.1
MEMORANDUM OPINION
Appellant, A.D.S., appeals from the trial court's order terminating his parental
rights to A.G.S.2 In presenting this appeal, appointed counsel has filed an Anders3 brief
in support of a motion to withdraw.4 We grant counsel=s motion and affirm.
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code
Ann. § 75.002(a)(1) (West 2005).
2
To protect the parents' and children's privacy, we refer to them by their initials. See Tex. Fam. Code
Ann. § 109.002(d) (West 2008). See also Tex. R. App. P. 9.8(b). The children's mother, J.S. is
deceased and J.R.'s father, A.J.P., whose parental rights were also terminated in this proceeding, is not a
party to this appeal.
3
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
4
This Court has previously held that appointed counsel may file an Anders brief in an appeal from a
parental rights termination order. See In re A.W.T., 61 S.W.3d 87, 88 (Tex.App.BAmarillo 2001, no pet.).
In support of her motion to withdraw, counsel certifies she has conducted a
conscientious examination of the record and, in her opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978). Counsel has demonstrated that she has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant and (2) notifying him of his right to file a pro se response if he desired to do
so. In re Schulman, 252 S.W.3d at 408. By letter, this Court granted A.D.S. thirty days
in which to exercise his right to file a response to counsel=s brief, should he be so
inclined. Id. at 409 n.23. He did not file a response.5 The Department filed a letter
response agreeing with counsel's evaluation that this appeal is frivolous.
A.D.S. and J.S. moved from Oklahoma to Texas with J.R. and A.G.S. On June
2, 2008, while at a motel in Lubbock, J.S. sustained fatal injuries at the hands of A.D.S.
The two children were present at the time. A.D.S. was arrested and with no local
relatives to care for the children, they were placed in foster care. The Texas
Department of Family and Protective Services initiated legal action to terminate the
parental rights of A.D.S. to A.G.S. Numerous grounds for termination were alleged
pursuant to section 161.001(1) of the Texas Family Code. However, at the termination
hearing, the case proceeded solely on A.D.S.'s Affidavit of Voluntary Relinquishment of
5
A.D.S.'s response was due on November 5, 2010. No response was filed, but on June 22, 2011,
Appellant filed a letter in this Court regarding a relative's attempt to seek custody of J.R. and A.G.S. and
complaining of the Department's support in helping the adoptive family keep the children. That issue,
however, is not relevant to the termination of Appellant's parental rights.
2
Parental Rights executed in compliance with section 161.103 of the Code. A.D.S.
testified he executed the affidavit freely and voluntarily and with the benefit of appointed
counsel.
After the trial court terminated his parental rights, A.D.S. filed a Motion for New
Trial asserting duress in execution of the affidavit.6 At the hearing on the motion, A.D.S.
testified he wanted to challenge the voluntary relinquishment because he was confused
about a post-termination Rule 11 agreement he entered into with the adoptive couple.
However, he offered no testimony of duress in signing the affidavit. At the conclusion of
the hearing, the trial court ruled that a misunderstanding as to what A.D.S. signed was
not sufficient to establish that the affidavit was involuntarily executed. The motion for
new trial was denied. The trial court's ruling was memorialized in a written order in
which the trial court also found that any appeal of the termination order was frivolous.
See Tex. Fam. Code Ann. § 263.405(d)(3) (West 2008).
By the Anders brief, counsel raises two arguable issues, to wit: (1) the trial court's
frivolous finding and (2) voluntariness of the affidavit of relinquishment of parental rights.
She then candidly concedes why the issues are without merit. A frivolous finding is
reviewed for abuse of discretion. In re M.N.V., 216 S.W.3d 833, 834 (Tex.App.--San
Antonio 2006, no pet.). The trial court determines whether an appeal is frivolous under
section 13.003(b) of the Texas Civil Practice and Remedies Code. An appeal is
6
We note that A.D.S. did not file a Statement of Points as required by section 263.405(b) of the Family
Code. Per section 263.405(i), this Court may not consider issues not specifically presented to the trial
court in a timely filed Statement of Points. However, in the interests of justice we address the arguable
issues raised by counsel. Any potential ineffective assistance claim against trial counsel in failing to file a
Statement of Points, see In re J.O.A., 262 S.W.3d 7, 18-19 (Tex.App.--Amarillo 2008), aff'd as modified
and remanded, 283 S.W.3d 336 (Tex. 2009), would be rendered harmless by a valid affidavit of voluntary
relinquishment of parental rights.
3
frivolous when it lacks an arguable basis either in law or in fact. In re K.D., 202 S.W.3d
860, 866 (Tex.App.--Fort Worth 2006, no pet.). Additionally, a party seeking to overturn
a termination order based on an unrevoked affidavit of relinquishment is limited to
arguing fraud, duress, or coercion in the execution of the affidavit. See Tex. Fam. Code
Ann. § 161.211(c) (West 2008). See also In re D.E.H., 301 S.W.3d 825, 828 (Tex.App.
--Fort Worth 2009, pet. denied). The record demonstrates that A.D.S. executed a valid
affidavit of relinquishment of parental rights free from fraud, duress or coercion.
Consequently, the trial court did not abuse its discretion in finding this appeal to be
frivolous.
Notwithstanding the trial court's frivolous finding, reporter's records of both the
termination hearing and the hearing on A.D.S.'s motion for new trial were duly filed.
Therefore, as in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues which might support the appeal.
See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re
Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.
1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137
(Tex.Crim.App. 1969). After reviewing the record and counsel=s brief, we agree with
counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178
S.W.3d 824 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court=s
judgment is affirmed.
Patrick A. Pirtle
Justice
4
in the Interest of J.R. and A.G.S., Children
Combined Opinion