in the Interest of A.C., K. L.C. III and L. C. v. Department of Family and Protective Services ( 2020 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In the Interest of A.C., K.L.C. III and L.C.
Appellate case number: 01-20-00002-CV
Trial court case number: 18CP0096
Trial court: 306th District Court of Galveston County
K.L.C. II, Father, appeals the termination of his parental rights to A.C., K.L.C.
III, and L.C. Father’s appointed attorney has filed a brief in which she concludes
that, after a review of the record and pertinent law, the appeal is frivolous and
without merit. See Anders v. California, 386 U.S. 738 (1967); In re P.M., 520
S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam) (approving use of Anders procedure
in appeals from termination of parental rights because it “strikes an important
balance between the defendant’s constitutional right to counsel on appeal and
counsel’s obligation not to prosecute frivolous appeals”). Father did not file a pro
se response.
Under Anders, if an appointed attorney concludes after reviewing the record
and applicable law that the appeal is without merit, he must advise the court, file a
motion to withdraw, and file a brief discussing any issue that might arguably support
the appeal. See Anders, 386 U.S. at 744; Kelly v. State, 436 S.W.3d 313, 318 (Tex.
Crim. App. 2014). The appellate court must then perform an independent
examination of the record and the law to determine whether appeal is frivolous. See
Anders, 386 U.S. at 744. The question before us is not who will ultimately prevail
but instead whether any non-frivolous issue exists. If the court determines that there
are arguable issues, it must abate the appeal and remand with orders for the trial
court to appoint new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.
App. 1991).
After examining the record and applicable law, the Court has determined that
a nonfrivolous issue may exist. For instance, on appeal, the Father could potentially
bring a nonfrivolous challenge concerning the legal and factual sufficiency of the
evidence supporting the trial court’s section 161.001(b)(1)(D) finding. See TEX.
FAM. CODE § 161.001(b)(1)(D). Accordingly, the court strikes appellant’s brief,
grants the motion to withdraw, abates the appeal, and remands the case to the trial
court for appointment of new counsel. Father’s brief will be due within 30 days after
new counsel is appointed.
It is so ORDERED.
Judge’s signature: ____/s/ Sherry Radack________
 Acting individually  Acting for the Court
Date: ___April 7, 2020___