O pinion filed March 25 , 20 21



### In The 

# Eleventh Court of Appeals

___ ___ ____ No. 11

- 20

- 00 2 1 9

- C V

____ __ ____ IN THE INTEREST OF J. R

. , D.E.R ., K.I.O., K.E.O., AND S. A. O

. , C HILD REN

On Appeal from the 44 6 t h District Court Ect or County, Texas Trial Court Cause No. E

- 19

- 015

- PC

M E M O R A N D U M O P I N I O N This is an appeal from two order s in which the trial court terminat ed the parental rights of the mother of J.R., D.E.R., K.I.O., K.E.O., and S.A.O. after a trial
de novo

. In one of those orders, the trial court also terminated the parental rights of the father of K.I.O., K.E.O., and S.A.O. Each of these two parents filed a notice of appeal. We affirm the order s of termination

. Mother’s Appeal
The mother ’s court

- appointed counsel has filed a brief in which he professionally and conscientiously examines the record and applicable law and2 conclude s that the appeal is frivolous and without merit

. The brief meets th e 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 In re Schulman , 252 S.W.3d 403 , 406

– 08 (Tex. Crim. App. 2008); High v. State , 573 S.W.2d 807 , 812 (Tex. Crim. App. [Panel Op.] 1978).
C ounsel has earnestly attempted to provide the mother with a copy of the brief , a copy of the appellate record, and a letter explaining to the mother her righ t to review the record and file a pro se response to counsel’s brief

. See Kelly v. State , 436 S.W.3d 313 , 318

– 20 (Tex. Crim. App. 2014)

. All of the mail sent by counsel
and this court to the mother’s last known address ha s been returned. Despite
counsel’s numerous attempts to locate the mother by phone, by mail , and through her family members, counsel has been unable to do so.
A n appellant who fails to keep h er attorney informed of h er current address forfeits the right to receive a copy of the Anders brief and the right to file a pro se
brief. Schulman , 252 S.W.3d at 408 n.21 (citing Gonzales v. State , 903 S.W.2d 404, 405 (Tex. App.

— Texarkana 1995, no pet.) ); In re E.M.M.M. , No. 04

- 10

- 00771

- CV, 2011 WL 1600981, at *1 (Tex. App.

— San Antonio Apr. 27, 2011, no pet.) (mem. op.) (holding that parent whose parental right s w ere terminated and who failed to keep in touch with, and provide a current address to, her court

- appointed attorney forfeited her right to receive a copy of the Anders brief and file a pro se response)

. Because the mother has failed to keep her attorney a pprised of her address or contact information, she has forfeited the right to receive a copy of counsel’s Anders brief and the right to file a pro se response. See E.M.M.M. , 2011 WL 1600981, at *1

. W e conclude that the mother ’s counsel has satisfied h is duties under Anders , Schulman , and Kelly

. F ollowing the procedures outlined in Anders and Schulman , we have independently reviewed the record in this cause , and we agree that the
mother’s appeal is without merit.3 We note that this court received a motion to withdraw from the mother’s court

appointed counsel in conjunction with the Anders brief

. T he Texas Supreme Court
has held , however, that an Anders motion to withdraw “may be premature” if filed in the court of appeals under the circumstances presented in this case. See In re P.M. , 520 S.W.3d 24, 27 (Tex. 2016). The court in P.M. stated that “appointed counsel’s obligations can be satisfied by fili ng a petition for review that satisfies the standards
for an Anders brief.” Id. at 27

– 28. Father’s Appeal
In a single issue on appeal, the father contends that he received ineffective
assistance of counsel in the trial court. The father specifically co mplains that his
trial counsel fail ed to request a bench warrant for the father’s appearance, in person,
at the trial ; f ail ed to request a continuance so that the father could be present for trial ; and failed to provide meaningful assistance as an advocate for the father during trial

. A parent that has a statutory right to counsel in a parental termination case has the right to “effective counsel.” In re M.S. , 115 S.W.3d 534, 544 (Tex. 2003). To prevail on a claim of ineffective assistance of coun sel, a parent must generally show (1) that trial counsel’s performance was deficient and (2) that the deficient performance was so serious as to deny the parent a fair and reliable trial. J.O.A. , 283 S.W.3d 336, 341

– 42 (Tex. 2009) (following the two

- prong ed analysis of
Strickland v. Washington , 466 U.S. 668 (1984)); M.S. , 115 S.W.3d at 545 (same). In the present case, the father has failed to satisfy the Strickland test. The record reflects that, on the day after the Department of Family and
Protective Services file d the original petition in this cause, the trial court appointed counsel to represent the father. The same attorney continued to represent the father throughout the proceedings below, including the termination hearing conducted by the associate judge and the de novo termination hearing conducted by the district judge. Trial counsel informed the associate judge that she was present on behalf of4 the father “who is currently incarcerated in Tennessee . . . in one of those private jail s. . . . And getting in touch with him through that private jail system has been miserable, Your Honor, and so I am not truly ready.” We note that, despite her

announcement of “not truly ready,” the father’s trial counsel adequately represented
the fathe r and cross

- examined most of the Department’s witnesses. After th is hearing, t he father’s trial counsel timely filed a request for a de novo hearing

. She
also filed a motion related to the father’s appearance at the de novo hearing.
In th e Motion for Telephone Appearance, the father’s trial counsel indicated that the father wished to be present, in person, at the de novo hearing “to testify and directly confront wit nesses.” 1 The father’s trial counsel stated that the father was incarcerated in Tennessee, provided the address of the prison and the father’s inmate number, and stated that the father would still be at that location at the time of the
scheduled de novo hearing. The prayer portion of the motion reads in pertinent part: “Movant prays that the Court grant him permission to attend the De Novo hearing

. . . . If it is not possible for a bench warrant to be issued, in the alternative, Movant . . . requests t o be allowed to participate by telephone for the De Novo hearing.” The de novo hearing was “held via Zoom technology.” At the beginning of the de novo hearing, t he father’s trial counsel announced, “We are present, and he is ready by phone, Your Honor.” The father appeared at th at hearing and testified by phone. T he record thus shows that not only did the father’s trial counsel request that
the father be bench warranted , if possible, for the de novo hearing, but she also obtained the father’s appearance via telephone at th e de novo h earing. On the record before us, we cannot h old , as the father asserts, that the father “received no meaningful assistance of counsel and was denied an advocate in his

1 See generally In re Z.L.T. , 124 S.W.3d 163, 165

– 66 (Tex. 2003) (discussing the requirements for the content of a request for a bench warrant).5 cause.” The record does not support the father’s contention that his trial counsel ’s performance was deficient. Thus, the father h as not met the first prong of Strickland

. See M.S. , 115 S.W.3d at 545

– 46. Additionally, we cannot hold that the result of the proceeding would have been different but for trial counsel’s alleged deficiencies; the
father has failed to establish that he wa s denied a reliable trial and, thus, has not met the second prong of Strickland

. See M.S. , 115 S.W.3d at 545. Accordingly, we
overrule the father ’s sole issue on appeal

. This Court’s Ruling
We affirm t he trial court’s order s of termination.

JOHN M. BAILEY
CHIEF JUSTICE

March 25 , 2021 Panel consists of: Bailey, C. J. , W illiams, J. , and Wright, S.C.J. 2 Trotter, J., not participating.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.