Order filed September 27, 2022.
In The
Fourteenth Court of Appeals
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NO. 14-22-00361-CV
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IN THE INTEREST OF A.Y.C., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2020-02304J
ORDER
Appellant’s appointed counsel, Jennifer A. Smith, filed a brief which
counsel designates as an Anders brief. See Anders v. California, 386 U.S. 738
(1967); In re D.E.S., 135 S.W.3d 326, 329–30 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (applying Anders procedures to a parental-termination case). To
comply with Anders, counsel must do the following:
(1) Either (a) advance contentions which might arguably support the
appeal, but, in the attorney’s professional opinion are frivolous; or (b)
present a professional evaluation of the record demonstrating why
there are no arguable grounds to be advanced. See High v. State, 573
S.W.2d 807 (Tex. Crim. App. 1978).
(2) File a copy of the transmittal letter to their client accompanying a
copy of the Anders brief in which they inform appellant of the right to
file a pro se brief and obtain a copy of the record by filing a motion
for pro se access to the appellate record. See Kelly v. State, 436
S.W.3d 313 (Tex. Crim. App. 2014).
The Anders procedure balances an indigent parent’s constitutional right to
appointed counsel on appeal and counsel’s obligation not to prosecute frivolous
appeals. See In re P.M., 520 S.W.3d 24, 27 n.10 (Tex. 2016). Arguments which
may support an appeal must be disclosed by appointed counsel. See Banks v. State,
341 S.W.3d 428, 430 (Tex. App.—Houston [1st Dist.] 2009, order). Appointed
counsel should identify potential arguments, explain the ground, and cite to
applicable legal authority and pertinent evidence. Id. at 431. An issue which is
arguable on the merits is, by definition, not frivolous. Sam v. State, 467 S.W.3d
685, 687 (Tex. App.—Houston [14th Dist.] 2015, order). Appointed counsel may
not simply justify the contention that the potential error is not an arguable ground
with a conclusory statement that no grounds for appeal exist. Banks, 341 S.W.3d
at 431.
The Texas Supreme Court has instructed appellate courts that due process
requires a heightened standard of review of a trial court’s findings under section
161.001(b)(1) (D) or (E), even when another ground for termination is sufficient
because of the potential collateral consequences to an appellant’s parental rights
concerning a different child. See In re N.G., 577 S.W.3d 230, 233–34, 235–36
(Tex. 2019) (per curiam). The Court held that because section 161.001(b)(1)(M)
provides for the termination of parental rights if there is clear and convincing
evidence that the parent has had his or her parental rights terminated with respect
to another child based on a finding that his or her conduct violated subsection (D)
or (E), an appellate court denies an appellant a “meaningful appeal and eliminates
the parent’s only chance for review of a finding that will be binding as to parental
rights to other children” if that court does not review a termination based on either
of those subsections. Id. at 235–37.
The trial court in the underlying matter terminated appellant’s parental rights
pursuant to subsections 161.001(b)(1) (D), (E), (N), and (O). See Tex. Fam. Code
§ 161.001(b)(1)(D),(E),(N),(O). In counsel’s Anders brief, she addresses only
subsection (O) as the basis for supporting the trial court’s judgment. In light of the
Texas Supreme Court’s holding in In re N.G., we ORDER that counsel file a
supplemental brief addressing the trial court’s findings with regard to subsections
(D) and (E) within 5 days from the date of this order. See In re M.M., 584
S.W.3d 885, 889 (Tex. App.—Amarillo 2019, pet. denied).
If counsel fails to file a supplemental brief within 5 days of this order, we
will strike her brief and order the trial court to conduct a hearing related to the
appointment of new counsel.
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Wise and Hassan.