In re K.M.

• Decision Date: 06 February 2003
• Docket Number: No. 2-01-349-CV.,2-01-349-CV.
• Parties: In the Interest of K.M., K.M., and K.M.
• Court: Texas Court of Appeals

98 S.W.3d 774 In the Interest of K.M., K.M., and K.M. No. 2-01-349-CV. Court of Appeals of Texas, Fort Worth. February 6, 2003.

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Anita K. Cutrer, Bedford, for Appellant.

Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Division, David M. Curl, Asst. Crim. D.A., Fort Worth, for Appellee.

PANEL F: CAYCE, C.J.; DAY and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION

In this case, we must decide whether the procedures set forth in Anders v. California¹ apply to appeals in parental rights termination cases when counsel is appointed. We hold that the Anders procedures do apply, and accordingly, we abate this case and remand it to the trial court for a hearing to determine whether all available steps have been taken to inform Appellant Christina Fields of her counsel's conclusion that her appeal is without merit and of her right to review the record and file a pro se brief.

II. FACTUAL AND PROCEDURAL BACKGROUND

The trial court, after entering an order terminating Christina's rights to her three children, signed an order appointing counsel to represent Christina on appeal. Christina's court-appointed appellate counsel filed with this court a motion to withdraw as counsel and an Anders brief in support of the motion, averring that in her professional opinion Christina's appeal is frivolous. The State filed a letter brief noting its "emphatic agreement" with Christina's counsel's position that an Anders brief may be filed in a termination of parental rights appeal.

III. ANDERS PROCEDURES APPLY TO TERMINATION OF PARENTAL RIGHTS CASES

In Anders, the United States Supreme Court recognized the competing duties faced by appointed appellate counsel who concludes his client's appeal is frivolous. Id. at 744, 87 S.Ct. at 1400. On one hand, counsel has a duty to zealously pursue the rights and interests of his or her client. See id. Appellate counsel cannot advance her client's rights and interests without asserting specific grounds for reversal. McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436, 108 S.Ct. 1895, 1900, 100 L.Ed.2d 440 (1988). On the other hand, however, counsel has a duty and a professional obligation to the appellate court not to pursue an appeal counsel has determined is frivolous. Id. at 436, 108 S.Ct. at 1901; see also Anders, 386 U.S. at 744, 87 S.Ct. at 1400. When counsel concludes an appeal would be frivolous, counsel has a duty to withdraw from the appeal. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.01, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998) (TEX. STATE BAR R. art. X,

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§ 9) (stating that a lawyer shall not bring or defend a frivolous proceeding or assert a frivolous issue); TEX. DISCIPLINARY R. PROF'L CONDUCT 1.15 (providing that a lawyer shall withdraw from representation of a client if the representation will result in violation of the applicable rules of professional conduct); TEX.R.APP. P. 45 (permitting the appellate court to assess damages if it finds an appeal frivolous). This same duty applies whether counsel is appointed or retained. McCoy, 486 U.S. at 437, 108 S.Ct. at 1901. Appointed...