## NO. 12

- 23

- 00288

- CV
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN THE INTEREST OF A.F., A.F. AND A.J., CHILDREN § § § APPEAL FROM THE
C OUNTY COURT AT LAW N O

. 2
ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION D.F. appeals his appointment as possessory c onservator of his children. H is 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.

B ACKGROUND D.F. is t he 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 fo r protection of a child, for co ns ervatorshi p, 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. a nd A.G.F., and D.F. was allowed limited access to, and possession of, t he children. The evidence at t rial showe d 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 te sting. In addition, D.F. had not seen his children in person in two ye ars and had not communicated wi th them in

s even 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.2 for two years, and D.F. conceded he had not provided a ny support f or his children in the previous five years. At the conclusion of trial, the trial court found, by clear and convincing evidence, that D.F. en gaged in one or more of the acts or omissions necessary to support term ination of his parental rights un der subsec tions (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 appointi ng him
manag ing 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 sup port for each child. This appe al followed.

A NALYSIS P URSUANT TO A NDERS V . C ALIFORNIA D.F. ’s counsel filed a brief in compliance with Anders , stating that he has diligently reviewed t he 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 for th in Anders are applicable to an appea l from a trial court ’ s order in a suit b ro ught by the Department of Family and Protective Services for the protection of a child, for conservato rshi p, or fo r 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.

— Ho uston [1st D ist.] Nov. 28, 2017, no pet.) (mem. op.) (applying Anders procedures to appeal from final order in wh ich trial court did not terminate paren ta l rights but appointed paternal grandparents as managing conservators and parents as possessory conser vator s); In re J.E.L. , No. 04

- 15

- 00634

- CV, 2016 WL 1359354, at *1 (Tex. App.

— San Antonio Apr. 6, 2016, pet. denie d) (mem. op.) (applying Anders procedur es to appeal of trial court ’ s order in suit affecting the parent

- child relationship in which trial court did
not ter minate parental rights, but instead appointed children ’ s grandparents as their managing
conservator s a nd children ’ s parents as possessory co nse rvators). In compliance with Anders , counsel’s brief presents a professional evaluation of the

recor d dem onstrat ing why there are no reversible grounds on appeal and referencing any grounds that might arguably sup port 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.).3 As a r eviewi ng court, we must conduct an independent evaluation of the record to determine whether counsel is corr ect in determining that the appeal is fr ivolous. See Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays , 904 S.W.2d at 923. We have

car efully reviewed the appellate record and counsel’s brief. We find nothing in the record that might argua bly support the appeal. 2 See Tayl or v. Tex. Dep’t of Protective & Regulatory Servs. , 160 S.W.3d 641, 646

– 47 (Tex. App.

–Austin 2005, pet. d enied).

D I S POSITION We agree with D.F. ’s counsel that the appeal is wholly frivolous. However, we deny counsel’s req uest 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 see ki ng the termination of parental rights extends to “all proceedings in [the Texas Supreme Court], including t he filing of a petition for re vie w.” 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 a ppe al in which trial court did not terminate parental rights). If D.F. , after consulting with counsel, d esires to fi le a petition for review, counsel should timely file with the Texas Supreme Court “a petition for review tha t satisfies the standards for a n A nders 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, 2 016 WL 5874880, at *1 n.2 (Tex. App.

–Austin Oct. 5, 2016, no pet.) (mem. op.). Accordingly, we affirm t he trial court’s judgment. Se e T EX

. R. A PP

. P. 43.2. B RIAN H OYLE Justice Opinion delivered March 2 8 , 2024. Panel consisted of Worthe n, C.J., Hoy le, J., and Neeley, J.

2 Counsel for D.F. certified that he provided D.F. with a copy of the brief and informed h im that he ha d the right to f ile h is o wn brief and took concrete measures to facilita te 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, 20 18, no pet.) ( mem . op.). D.F. was gi ven the time to file h is own brief, but the time for filing such brief has expired and we have received no pro se brief.

## COURT OF APPEALS
TW ELFTH COURT OF APPEALS DISTRI CT OF TEXAS
J UDGMENT

M ARCH 28, 2024

NO
. 12-23-00288- CV

I N THE INTEREST OF A.F., A.F. AND A.J ., CHILDRE N

A ppeal f rom 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 t he 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 certif ied to the court below for ob servance.

B ri an Hoyle, Justice. P an el consisted of Worthen, C.J., Hoyle , J., and Neeley, J.