Sunday, November 11, 2007

Parent's rights terminated on Anders brief

Justice Elsa Alcala agrees with appointed counsel that appeal is frivolous, grants withdrawal motion, and affirms termination of jailbird father's parental rights.

Smith v. DFPS , No. 01-06-00625-CV (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(Alcala)(termination, Anders appeal)
Shuemon Manuel Smith v. Department of Family and Protective Services
Appeal from 315th District Court of Harris County
Disposition: Trial court's judgment affirmed


Appellant, Shuemon Manuel Smith, appeals the trial court’s order terminating parental rights to his child, A.S.

The order also terminated the rights of Nancy Ralstin, the child’s mother, who does notappeal. The order did not terminate appellant’s rights to his other child, S.S., but named himjoint possessory conservator of the child along with Nancy Ralstin. The order named Amanda Hill, a relative of the child who had been caring for the child since August 2004,sole managing conservator. According to testimony of the Texas Department of Family andProtective Services (DFPS) caseworker, the agency did not seek termination of appellant’sparental rights of S.S. because Hill sought only to be named sole managing conservator anddid not want to adopt S.S.

Appellant’s court-appointed appellate counsel filed a brief concluding that there is no non-frivolous issue that could be presented on appeal and that any appeal would be without merit. Appellant’s appellate counsel’s brief includes a motion to withdraw, stating that he mailed a copy of the brief to appellant, along with a letter advising him of his right to file a pro se brief. We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.


Appellant is the father of two children, A.S. and S.S. In June 2002, pursuant to an emergency order, the Texas Department of Family and Protective Services (DFPS) took possession of A.S., who was four years old, and S.S., who was six years old. After a full adversary hearing, the trial judge signed a temporary order naming DFPS temporary managing conservator of the children and requiring supervised contact between appellant and the children. A.S. was placed in foster care with a foster family beginning April 17, 2003.

At the time of the emergency order and subsequent hearing, appellant was incarcerated in Michigan where he was serving a five-year sentence for a 1997 conviction for breaking and entering after violating the terms of his parole in 1998.

In 1996, appellant was convicted of home invasion and received two years probation. Thatsame year, he was also convicted of domestic violence. In 1997, appellant was convicted ofbreaking and entering, for which he received a sentence of two to ten years in prison. Heserved roughly one year of the sentence and was released on parole on December 9, 1997. In 1998, appellant was charged with domestic violence after a fight with Nancy Ralstin,A.S.’s mother. He went back to prison for violating his parole from the breaking andentering conviction, where he served approximately five years in prison.

Appellant was released from prison on September 26, 2002.

When appellant learned that the children were in the custody of DFPS, he contacted DFPS to inquire about reunification with the children. In March 2003, DFPS and the caseworker assigned to the case created a Family Service Plan for appellant so that he could work towards reunification with the children. The plan required that appellant attend parenting classes, secure appropriate employment, maintain proper housing, undergo psychological evaluation, and not engage in criminal activity. Appellant did not complete the terms of the plan. Appellant explained he did not complete the service plan because he believed the children would be reunited with their mother, Nancy Ralstin.

After his release from prison, he attempted to contact both children through letters. Appellant stated that he sent one letter with photos enclosed to the DFPS caseworker for A.S. He also testified that he spoke with the DFPS caseworker “numerous” times to ask about the children. However, according to the DFPS caseworker, she initiated all the calls to appellant.
In 2003, DFPS performed a home study on appellant’s sister to determine whether the children could be placed in her care. The home study was approved, but appellant’s sister stated that she wanted the placement only if it was permanent. DFPS decided to pursue reunification with Ralstin, the children’s mother, instead. The attempted reunification did not materialize. DFPS then considered placing the children with appellant’s sister, but she was unable to care for the children due to her return to school. In May 2004, DFPS began a home study on appellant’s mother, the children’s grandmother, which failed because she admitted to using marijuana.
On November 1, 2004, DFPS filed a motion seeking to terminate the parental rights of appellant with regard to A.S. On March 16, 2005, appellant returned to prison for a parole violation because he was in a car with a person who had a concealed weapon. After returning to jail, appellant did not contact DFPS, nor did he have any relatives contact the DFPS caseworker about his children. In May 2005, the DFPS caseworker contacted appellant about voluntarily relinquishing his parental rights, but appellant did not want to sign the papers. Appellant did not provide the DFPS caseworker with the contact information of anyone who could care for the children while he was in prison.

Appellant claimed that while he was in prison, he could communicate with the children by sending letters, calling, and sending money. He also stated that either his fiancée or his father would be able to take care of the kids, but he admitted that he had never given their names or contact information to the DFPS caseworker.

Appellant said that he was taking welding classes and parenting classes while in prison. Although he was set to be released from prison on December 4, 2006, upon his release, appellant was required to serve a 20-month federal sentence on a charge of felon in possession of a firearm. After the completion of his federal sentence, appellant will be on supervised release. During that time, appellant will not be able to leave the state of Michigan to visit his children in Texas.
At trial, the DFPS caseworker testified that she believed appellant’s rights should be terminated and that at no time had A.S. ever talked about his father. She stated that appellant had not been involved in the child’s life and had not provided any financial help to the child. The foster mother of A.S. also testified, stating that the child wanted to be adopted by her family, that the child did not know who his biological father was, and that the child had blossomed while in her family’s home environment.

In its final order, the trial court found three grounds on which to terminate appellant’s parental rights. The court found that appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well being of the child, pursuant to § 161.001(1)(E) of the Texas Family Code;

constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the child to the father; (2) the father has not regularly visited or maintained significant contact with the child; and (3) the father has demonstrated an inability to provide the child with a safe environment, pursuant to § 161.001(1)(N) of the Texas Family Code; [and]

knowingly engaged in criminal conduct that has resulted in the father’s conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition, pursuant to § 161.001(1)(Q) of the Texas Family Code.
Appellant filed a motion for new trial combined with a statement of appellate points under section 263.405(b) of the Texas Family Code, and a notice of appeal in the trial court. See Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2007). Appellant’s court-appointed appellate counsel submitted an Anders brief and motion to withdraw as counsel. Appellant did not file a pro se response.

Anders Procedure

Anders procedures are appropriate in parental-rights termination cases. In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also In re D.E.S., 135 S .W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

When this Court receives an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967) (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (same).

Our role in this Anders appeal is limited to determining whether arguable grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. See id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id.

“Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id. If we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826–28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for review filed in the Texas Supreme Court. Cf. id. at 827 & n.6.

The brief submitted by appellant’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant’s counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. DFPS waived its opportunity to file an appellee’s brief. In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826–28, we have reviewed the record and appellant’s appointed counsel’s Anders brief and conclude that no reversible error exists.


We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.

Elsa Alcala

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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