in the Interest of L.K.H., a Child ( 2010 )

Order filed September 16, 2010

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00080-CV

                                                    __________

                           IN THE INTEREST OF L.K.H., A CHILD

                                  On Appeal from the 132nd District Court

                                                           Scurry County, Texas

                                                      Trial Court Cause No. 23200

                                                                     O R D E R

            The trial court determined that the termination of B.H.’s parental rights to her daughter L.K.H. was not in the best interest of the child but found that appointment of the Texas Department of Family and Protective Services (the Department) as L.K.H.’s permanent managing conservator was in the best interest of the child.  Trial counsel timely filed pursuant to Tex. Fam. Code Ann. § 263.405 (Vernon 2008) a motion for new trial, a statement of points on appeal, and a notice of appeal.  After a hearing, the trial court concluded that B.H. was indigent, that her motion for new trial should be denied, that her appeal was frivolous pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002), and that counsel should be appointed pursuant to Section 263.405.  B.H. appeals.  We abate.

Because the trial court found that B.H.’s appeal was frivolous under Section 263.405(d) and Section 13.003(b), appellate review at this stage is limited to a review of the trial court’s exercise of its discretion in determining that her appeal was frivolous, and the merits of the trial court’s decision to appoint the Department permanent managing conservator is not before this court at this time.  In re A.B., 269 S.W.3d 120, 124 (Tex. App.—El Paso 2008, no pet.); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526-27 (Tex. App.—Houston [1st Dist.] 2008, no pet.); In re K.D., 202 S.W.3d 860, 865 (Tex. App.—Fort Worth 2006, no pet.).  Court-appointed appellate counsel filed a motion to withdraw and brief supporting his motion on the ground that the appeal is without merit.  Counsel followed the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).  A court-appointed attorney who examines the record and applicable law and concludes that the appeal from a final order appointing the Department as permanent managing conservator is frivolous would be entitled to proceed under Anders just as the same counsel would if the order was one terminating parental rights:  in both situations the appointment of counsel is mandatory under Section 263.405(e), which may result in court-appointed counsel addressing the very ethical issues that Anders and its progeny address and resolve.  Anders applies to appeals from the termination of parental rights.  Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—Austin 2005, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.); In re AWT, 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.).

Court-appointed counsel thoroughly examined the record and addresses the merits of the trial court’s appointment of the Department as permanent managing conservator. However, as noted above, this is not the issue before this court at this time. The issue is the trial court’s ruling that B.H.’s appeal from its order appointing the Department is frivolous pursuant to Section 263.405 and Section 13.003(b). 

Counsel’s motion to withdraw was granted, and the appeal was dismissed on July 8, 2010. On July 15, 2010, this court withdrew the opinion granting counsel’s motion to withdraw as well as the judgment of July 8, 2010, and reinstated the appeal. 

            Therefore, the appeal is abated in order that court-appointed counsel may address the issue of whether the trial court abused its discretion in determining that B.H.’s appeal was frivolous pursuant to Section 263.405 and Section 13.003(b). Counsel’s brief is now due to be filed in this court on or before October 21, 2010.  In the event that counsel concludes that this appeal from the trial court’s findings is without merit, counsel may proceed under Anders examining the record and applicable law as it applies to the trial court’s ruling that B.H.’s appeal is frivolous under Sections 263.405 and Section 13.003(b).  When counsel’s brief is filed, the appeal will be reinstated and presented to the court.

                                                                                                PER CURIAM

September 16, 2010

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.