Order filed October 11, 2012
In The
Eleventh Court of Appeals
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No. 11-12-00172-CV
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IN THE INTEREST OF A.C. AND A.C., JR., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 7099-CX
O R D E R
The Texas Department of Family and Protective Services (the Department) instituted the underlying action seeking to terminate A.W.’s parental rights to her children, A.C. and A.C., Jr. Based upon the jury’s findings, the trial court granted the requested termination of A.W.’s parental rights. A.W. appeals from this determination. We abate the appeal and remand to the trial court for appointment of new appellate counsel.
Appellant’s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel asserts that she has professionally and conscientiously examined the record and applicable law and that she has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of her right to review the record and file a response to counsel’s brief. A response has not been filed.[1] It appears that court-appointed counsel has attempted to comply with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). In this regard, the practice recognized in Anders for court-appointed counsel to seek a withdrawal from a frivolous appeal applies to parental termination proceedings involving appointed counsel. See In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
In addressing an Anders brief, a court of appeals may only determine (1) that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Schulman, 252 S.W.3d 403; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we disagree with court-appointed counsel’s conclusion that an appeal would be frivolous. We note that this appeal arises from a four-day jury trial. In the court’s perspective, an appeal arising from a contested trial is not readily amenable to disposition under Anders. At a minimum, a challenge to the sufficiency of the evidence would appear to present arguable grounds on appeal.
Accordingly, we grant counsel’s motion to withdraw, abate this proceeding, and remand the case to the trial court for appointment of new appellate counsel. See Bledsoe, 178 S.W.3d at 826–27. We direct the trial court to appoint new counsel to represent appellant on appeal. The trial court shall furnish the name, address, telephone number, and state bar number of new counsel by its order appointing new counsel. The order shall be included in a supplemental clerk’s record, which shall be filed with the clerk of this court by October 26, 2012. Appellant’s brief shall be due twenty days from the date of the trial court’s appointment of new counsel. See Tex. R. App. P. 28.4, 38.6. All other appellate deadlines shall be in accordance with Rule 38.6. In this regard, we note that Tex. R. Jud. Admin. 6.2(a)[2] requires expedited disposition of appeals arising from the termination of the parent-child relationship.
The motion to withdraw is granted, the appeal is abated, and the cause is remanded to the trial court in accordance with this order.
PER CURIAM
October 11, 2012
Panel[3] consists of: Wright, C.J.,
McCall, J., and Hill.[4]
[1]By letter, this court granted appellant twenty-seven days in which to exercise her right to file a response to counsel’s brief.
[2]Reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (West Supp. 2012).
[3]Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a successor by the governor or until the next general election.
[4]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.