In the Interest of M.J.-W., a Child, 05-26-00952-CV, October 23, 2026.
On appeal from 304th Judicial District Court, Dallas County, Texas
Synopsis
An appointed attorney may not withdraw from a parental-termination appeal merely because counsel filed an Anders brief and the court of appeals determined that the appeal was frivolous. Absent other good cause, counsel remains responsible for representing the parent through Texas Supreme Court proceedings, including filing an Anders-compliant petition for review if the parent requests one after consultation.
Relevance to Family Law
The opinion directly affects appointed counsel handling appeals from termination orders and other cases implicating a parent’s statutory right to counsel. Filing an Anders brief does not end the representation, even when the court of appeals affirms the termination order and agrees that no nonfrivolous appellate issue exists.
The decision also offers broader lessons for custody and divorce litigators. A statutorily compliant mediated settlement agreement may bind the parties and support rendition notwithstanding later dissatisfaction with the bargain. Counsel negotiating provisions that condition termination, conservatorship, possession, or other relief on future events must define those conditions precisely and build a record concerning whether they occurred. Although Anders procedures ordinarily do not apply to privately retained counsel in conventional divorce, custody, or property appeals, all appellate lawyers must distinguish between a merit assessment and legally sufficient grounds to terminate the attorney-client relationship.
Case Summary
Fact Summary
The Department of Family and Protective Services sought protection, conservatorship, and termination orders concerning M.J.-W., a medically fragile child who was tracheostomy- and ventilator-dependent and required continuous skilled care. The Department’s supporting affidavit reported that the child was in foster care receiving 24-hour nursing services and that Mother had tested positive for cocaine and marijuana. The trial court appointed the Department temporary managing conservator and appointed attorneys for both parents.
At the first portion of the bench trial, the permanency caseworker testified that the case arose from allegations of neglectful supervision. Both parents were on probation following convictions for injury to another child. The caseworker also advised the court that the parties had entered a mediated settlement agreement and that the Department was investigating two paternal relatives as possible placements.
When trial resumed, the mediated settlement agreement was admitted into evidence. It required home studies of two potential relative placements, L.F. and E.W. If no home study was completed and approved by both the Department and the attorney/guardian ad litem, the agreement contemplated a placement hearing. The agreement further provided that the parents’ rights would be terminated under Texas Family Code section 161.001(b)(1)(A), together with a best-interest finding, if the child was not placed with a relative. Father, Mother, Father’s counsel, and other participants signed the agreement, which prominently stated that it was not subject to revocation.
The caseworker testified that placement with L.F. was not in the child’s interest because L.F. had not completed the medical training necessary to care for the child’s significant needs. The Department did not have a Dallas address for E.W., and no home assessment had been completed for her. The Department therefore requested enforcement of the mediated settlement agreement.
The trial court rendered judgment based on the agreement and later signed an order terminating both parents’ rights. Father appealed. His appointed appellate counsel filed an Anders brief concluding that the appeal was frivolous and wholly without merit, along with a motion to withdraw.
Counsel represented that Father had received the brief and motion and had been advised of his rights to review the appellate record, file a pro se response, and object to withdrawal. The court of appeals also notified Father of those rights, but Father did not respond.
Issues Decided
- Whether the appellate record presented any arguable ground for reversing the order terminating Father’s parental rights.
- Whether the mediated settlement agreement was enforceable and could support rendition of the termination order.
- Whether the trial court retained jurisdiction under Texas Family Code section 263.401.
- Whether the evidence was legally sufficient to support termination.
- Whether appointed counsel could withdraw solely because the appeal was frivolous and without merit.
- Whether appointed counsel’s responsibilities continued through potential proceedings in the Texas Supreme Court.
Rules Applied
Under Anders v. California, 386 U.S. 738 (1967), appointed counsel who concludes that an appeal presents no nonfrivolous issue may file a brief professionally evaluating the record and explaining why no arguable ground for relief exists. The Dallas Court of Appeals applies that procedure in parental-termination cases. In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied).
When an Anders brief is filed in a termination appeal, the appellate court must independently review the record to determine whether an arguable ground for reversal exists. If the court identifies such a ground, it must abate or remand for the appointment of new counsel rather than decide the merits without adversarial briefing. In re J.L.B., No. 05-20-00526-CV, 2020 WL 6054340, at *2 (Tex. App.—Dallas Oct. 14, 2020, no pet.) (mem. op.).
Texas Family Code section 153.0071(e) generally provides that a party is entitled to judgment on a mediated settlement agreement that satisfies the statute’s formal requirements, notwithstanding Rule 11 or another rule of law. A trial court may decline to enforce such an agreement only under the limited circumstances identified by section 153.0071(e-1).
Texas Family Code section 263.401 governs the dismissal deadline in Department cases and the circumstances under which the trial court retains jurisdiction beyond the initial statutory period.
Most importantly for appellate counsel, frivolousness is not, by itself, good cause for withdrawal from a parental-termination appeal. Appointed counsel’s representation ordinarily continues through proceedings in the Texas Supreme Court. In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). If the parent wishes to seek review after consulting with counsel, appointed counsel must file a petition for review that complies with Anders.
Application
The Fifth Court of Appeals first examined counsel’s Anders brief and independently reviewed the record. The court concluded that counsel had professionally evaluated the proceedings and adequately explained why no arguable appellate issue existed. Among other matters, the brief addressed the trial court’s continuing jurisdiction under section 263.401, the enforceability of the mediated settlement agreement, and the evidentiary support for termination.
The agreement’s language was central to the merits analysis. It was signed by Father and his attorney, contained the required nonrevocability language, and established the consequences if the child could not be placed with one of the identified relatives. The evidence showed that neither proposed relative placement had been approved. One proposed caregiver had not completed the specialized medical training necessary to care for the child, while no home assessment had been completed for the other proposed placement. On that record, the Department sought enforcement, and the trial court rendered judgment consistent with the parties’ agreement.
The appellate court also considered whether Father had received the procedural protections required by Anders. Counsel certified that he provided Father with the motion and brief and informed him of his rights to access the record, respond pro se, and object to withdrawal. The court independently notified Father, but he filed no response. After reviewing the full record, the court agreed that the appeal was frivolous and affirmed the termination order.
That determination did not, however, justify counsel’s withdrawal. Counsel offered no basis for withdrawal apart from the absence of a meritorious appellate issue. Under In re P.M., that is insufficient. Because no other good cause was shown, the attorney’s appointment and professional obligations continued despite the affirmance.
Holding
The court held that the appellate record disclosed no arguable ground for reversal. The Anders brief adequately evaluated the relevant jurisdictional, settlement-enforcement, and sufficiency questions, and the court’s independent review confirmed that the appeal was frivolous and without merit. The termination order was therefore affirmed.
The court separately held that frivolousness alone does not establish good cause for appointed counsel to withdraw from a parental-termination appeal. Counsel’s motion to withdraw was denied even though the judgment was affirmed and the appeal was found frivolous.
Counsel remained obligated to confer with Father regarding further review. If Father requested a petition for review, counsel was required to file an Anders-compliant petition in the Texas Supreme Court rather than treating the court of appeals’ judgment as the end of the appointment.
Practical Application
Do not treat an Anders brief as a motion to end the representation. In a parental-termination appeal, appointed counsel should calendar all post-judgment deadlines—including the deadline for a motion for rehearing, a motion for en banc reconsideration, and a petition for review—regardless of counsel’s assessment of the merits. The representation continues unless the court grants withdrawal for good cause or counsel’s obligations otherwise conclude under controlling authority.
Separate frivolousness from good cause to withdraw. A conclusion that no nonfrivolous appellate issue exists supports the Anders procedure; it does not independently support withdrawal. If counsel has another basis for withdrawal, it must be identified, supported, and presented under the applicable procedural and ethical standards without compromising privileged communications.
Confer with the parent after affirmance. Counsel should promptly provide the opinion and judgment, explain the available avenues for further review, and document whether the parent wants a petition for review. If the parent requests review, counsel must prepare the required filing even if counsel continues to believe the case presents no arguable ground for relief.
Use exacting procedures when preparing an Anders filing. The brief must do more than announce that the appeal lacks merit. It should professionally evaluate the record, identify the potentially applicable issues, discuss the governing authorities, and explain why those issues do not present arguable grounds for reversal. Counsel must also provide the client with the required notices and access to the appellate record.
Draft mediated settlement agreements with appellate scrutiny in mind. In termination, custody, and possession disputes, define all conditions precedent, approval standards, decision-makers, deadlines, and consequences. Avoid language that leaves uncertainty about whether a placement, home study, valuation, refinance, sale, or conservatorship condition has occurred.
Develop evidence concerning failed conditions. If rendition depends on the failure of a proposed relative placement or another future event, offer evidence showing precisely why the condition was not satisfied. In a conventional custody case, that may involve a failed home study or unmet treatment requirement. In a divorce or property case, it may involve financing denial, failure to refinance, missed sale deadlines, or noncompliance with disclosure obligations.
Preserve challenges before judgment. A parent or spouse opposing enforcement should make a developed record concerning statutory noncompliance, ambiguity, fraud, duress, illegality, or any applicable statutory exception. Silence after execution of a compliant mediated settlement agreement will rarely supply an effective appellate strategy.
Checklists
Appointed Counsel’s Anders Checklist
- Review the entire clerk’s record and reporter’s record.
- Identify every potentially arguable issue, including jurisdiction, preservation, statutory predicates, best interest, evidentiary sufficiency, due process, and enforceability of any settlement.
- Explain why each potential issue lacks arguable merit rather than merely labeling the appeal frivolous.
- Confirm that the brief satisfies Anders and the requirements of the reviewing court.
- Serve the client with the Anders brief and any motion to withdraw.
- Advise the client of the right to review the appellate record.
- Advise the client of the right to file a pro se response.
- Advise the client of the right to object to counsel’s motion to withdraw.
- Document compliance with all notice and service requirements.
- Continue monitoring every appellate deadline after filing the Anders brief.
Post-Affirmance Representation Checklist
- Send the client the court’s opinion and judgment promptly.
- Explain the available post-judgment and Texas Supreme Court procedures.
- Confer with the client about whether further review is desired.
- Memorialize the client’s instructions concerning a petition for review.
- Calendar the petition-for-review deadline and any applicable extension deadline.
- If requested, file an Anders-compliant petition for review.
- Do not assume that an affirmance or frivolousness determination terminates the appointment.
- Do not close the file unless counsel’s obligations have ended under controlling law or withdrawal has been granted for good cause.
Mediated Settlement Agreement Checklist
- Confirm that the agreement satisfies every statutory formality.
- Include the required prominently displayed statement concerning revocability.
- Obtain all necessary signatures, including counsel’s signature where required.
- Define each condition precedent with objective language.
- Identify who determines whether a home study, placement, valuation, or other condition is approved.
- State the deadline for satisfying each condition.
- Specify the consequence if a condition fails.
- Address whether additional hearings or evidence will be required before rendition.
- Confirm that the contemplated relief is legally authorized.
- Preserve documentation showing informed consent to the agreement.
Trial Record Checklist for Conditional Relief
- Offer the mediated settlement agreement into evidence.
- Establish statutory compliance on the record.
- Prove whether each condition was satisfied or failed.
- Identify the evidence supporting any rejected placement or proposed custodian.
- Document training deficiencies, home-study results, address problems, or safety concerns.
- Connect the evidence to the child’s best interest.
- Obtain express findings when a statutory exception to enforcement is asserted.
- Ensure the final order accurately tracks the agreement and the governing statutory provisions.
- Object to discrepancies between the oral rendition, settlement agreement, and written order.
Protecting the Parent’s Appellate Position
- Review the settlement agreement with the parent before execution.
- Explain that a compliant mediated settlement agreement may be irrevocable and binding.
- Clarify the consequences if a proposed relative placement is not approved.
- Make timely objections to enforcement and state the specific legal grounds.
- Present evidence supporting any statutory exception to enforcement.
- Preserve complaints about jurisdiction, notice, voluntariness, and statutory compliance.
- Request findings when they will assist appellate review.
- Respond promptly to Anders notices from appointed counsel and the court.
- Review the appellate record and identify any concern counsel may have overlooked.
Citation
In re M.J.-W., No. 05-26-00952-CV (Tex. App.—Dallas Oct. 23, 2026, no pet. h.) (mem. op.).
Full Opinion
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