in the Interest of D.S., N.S., Children ( 2010 )

NO. 07-10-00184-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 15, 2010
IN THE INTEREST OF D.S. AND N.S., CHILDREN
FROM THE 106TH DISTRICT COURT OF GARZA COUNTY;
NO. 05-11-06063-CV; HONORABLE KEVIN C. HART, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ORDER OF ABATEMENT AND REMAND
The trial court terminated the parental rights of appellant, the father, to his
children D.S. and N.S. The order of termination rests on findings by clear and
convincing evidence of five predicate acts and that termination of the parent child-
relationship is in the best interest of D.S. and N.S.1 Appellant filed a statement of
intended appellate points2 that included assertions that insufficient evidence supported
two of the predicate grounds for termination and insufficient evidence supported the
finding that termination was in the best interest of the children. Following a post-trial
1
See Tex. Fam. Code Ann. § 161.001(1),(2) (Vernon Supp. 2009).
2
See Tex. Fam. Code Ann. § 263.405(b) (Vernon 2008) (requiring one appealing
termination of parental rights initiated by Department of Family and Protective Services
to file statement of appellate points).
hearing, the trial court found appellant’s intended appellate points were not frivolous. It
also appointed appellant’s trial counsel to represent him on appeal. A notice of appeal
was timely filed.
Before us is a motion by appellant’s counsel to withdraw from appellate
representation. A brief, which counsel refers to in the motion as an “Anders-style”
brief,3 was also filed. The brief contains counsel’s certification that in his opinion the
appeal does not present reversible error and is without merit and frivolous. At the heart
of the brief is an analysis of two issues labeled “potential issues.” The first issue begins
with a statement that the evidence was legally and factually insufficient to support the
judgment of termination. Counsel cites five predicate acts on which the trial court based
its order of termination and then argues appellant “does not believe the record supports
these findings and would move this Court to overturn the Trial Court’s decision.”
Through two sub-issues that follow, counsel details the evidence and cites authorities to
support his conclusion that insufficient evidence supports the trial court’s judgment. In
the second issue, counsel discusses the trial court’s determination that termination of
the parent-child relationship was in the best interest of the children. Here, counsel
points to record evidence of his positive acts to conclude appellant “will be ready to
3
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Courts, including this court, have found the procedures set forth in Anders v. California
applicable to appeals of orders terminating parental rights. In re A.W.T., 61 S.W.3d 87,
88 (Tex.App.--Amarillo 2001, no pet.); see Taylor v. Texas Dep't of Protective &
Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex.App.-Austin 2005, pet. denied)
(collecting cases).
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resume his parental [role] in the near future” and each act supports the “strong
presumption that the best interest of the child(ren) would be served by preserving the
parent-child relationship.” Counsel’s brief concludes, however, with a prayer requesting
withdrawal from representation.
The sole purpose of an Anders brief is to explain and support the attorney’s
motion to withdraw. In re Schulman, 252 S.W.3d 403, 404 (Tex.Crim.App. 2008).
Specifically, the Anders brief provides assurance to the appellate court that counsel has
thoroughly and conscientiously examined the record and the applicable law, and has
provided the court with the appropriate facts, procedural history, and “any potentially
plausible points of error.” Id. at 407. The brief also, however, must express and explain
counsel’s conclusion “there is no plausible basis for appeal.” Id.
Here, counsel’s brief does not support his motion to withdraw. Rather, it
materially contradicts the basis of the motion by arguing and concluding the evidence
was insufficient and termination of the parent-child relationship was not in the best
interest of the children. While it might be said counsel’s purpose was to discuss
arguable issues, the brief does not demonstrate the issues it raises are frivolous but
advances an argument of reversible error. The argument counsel advances is that of a
brief on the merits of the appeal. This is not an Anders brief.
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. 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
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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 August 6,
2010. Should the trial court require additional time to comply with this order, it shall so
request before August 6, 2010. Appellant’s brief shall be due twenty days from the date
of the trial court’s appointment of new counsel. All other appellate deadlines shall be in
accordance with the Texas Rules of Appellate Procedure for accelerated appeals. By
this order, we express no opinion on the merit of any issues or potential issues the
record may present.
It is so ordered.
Per Curiam
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