in the Interest of T. S. and E.S.S. Children v. Department of Family and Protective Services

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

AMENDED ABATEMENT ORDER

Appellate case name: In the Interest of T.S. and E.S.S., Children

Appellate case number: 01-22-00054-CV

Trial court case number: 2020-02393J

Trial court: 313th District Court of Harris County

Appellant, mother, has filed a notice of appeal of the trial court’s order terminating her
parental rights to her children, T.S. and E.S.S. (collectively, the “children”). Appellant’s
court-appointed counsel on appeal has filed a motion to withdraw from representing appellant and
an Anders brief in which she concludes that “on [her] professional evaluation of the
record, . . . there are no arguable grounds for appeal and that [appellant’s] appeal is wholly
frivolous.” See Anders v. California, 386 U.S. 738, 744 (1967); In re A.M., 495 S.W.3d 573, 582
(Tex. App.—Houston [1st Dist.] 2016, pet. denied).

When we receive an Anders brief from an appellant’s 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. In re C.S., No. 01-16-00152-CV, 2016 WL 4408980, at *1
(Tex. App.—Houston [1st Dist.] Aug. 16, 2016, pet. denied) (mem. op.). If we determine that
arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to
allow the appointed attorney to withdraw and appoint another attorney to present all arguable
grounds for appeal. In re C.S., 2016 WL 4408980, at *1 (citing Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005)); see also In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex. Crim.
App. 2008) (stating arguable ground for appeal is one that could “conceivably persuade the court”).

Here, we have reviewed the appellate record and appointed counsel’s Anders brief, and
conclude that the appeal warrants further development by new appellate counsel on the following
arguable grounds for appeal: whether evidence is legally and factually insufficient to support the
trial court’s findings that appellant constructively abandoned the children, who had been placed in
the permanent or temporary managing conservatorship of the Department of Family and Protective
Services for not less than six months, that appellant failed to comply with the provisions of a court
order that specifically established the actions necessary for her to obtain the return of the children,
and that termination of appellant’s parental rights was in the best interest of the children.1 See
TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (b)(1)(O), (b)(2); see also Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991) (“After an attorney files a proper Anders brief (which should be
filed with a request for withdrawal from the case) . . . , the Court of Appeals . . . must conduct its
own investigation of the record to discover if there are arguable grounds. If grounds are deemed
arguable, the Court of Appeals then must abate the appeal and remand the case to the trial court
with orders to appoint other counsel to present those and any other grounds that might support the
appeal.”). Accordingly, we abate the appeal and remand the case to the trial court with instructions
to appoint new counsel to represent appellant on appeal and have a supplemental clerk’s record
containing that appointment filed in this appeal with the Clerk of this Court no later than 10 days
from the date of this order.

Counsel’s appellant’s brief will be due 20 days from the date that counsel is appointed.
See TEX. R. APP. P. 28.4 (“Accelerated Appeals in Parental Termination and Child Protection
Cases”), 38.6(a). Because this is a termination case, this Court is required to bring this appeal to
final disposition within 180 days of January 25, 2022, the date the notice of appeal was filed in
this proceeding, so far as reasonably possible. See TEX. R. JUD. ADMIN. 6.2, reprinted in TEX.
GOV’T. CODE ANN., tit. 2, subtit. F app. Accordingly, no extensions of time will be granted
absent extraordinary circumstances. See TEX. R. APP. P. 38.6(d). Counsel who agrees to handle
this appeal should do so only if he or she can satisfy the briefing deadlines.

Appellant’s original appointed appellate counsel has filed a “Motion for Clarification”
related to this Court’s original abatement order. To the extent counsel requests leave to provide
additional briefing, that request is denied. To the extent that counsel requests “clarification . . . on
the grounds for which this Court wants further development,” that request is dismissed as moot.
See TEX. R. APP. P. 2, 10.3.

The appeal is abated, treated as a closed case, and removed from this Court’s active docket.

It is so ORDERED.

Judge’s signature: _____/s/ Julie Countiss_______
 Acting individually  Acting for the Court

Date: ___April 18, 2022___

1
Appellate counsel is not prevented from briefing any other arguable grounds of appeal.

2