in the Interest of S.B.G., a Child ( 2013 )

Order issued January 31, 2013
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00852-CV
IN THE INTEREST OF S.B.G., a Child
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2011-04793J
ABATEMENT ORDER
Appellant, W.G., challenges the trial court’s order terminating his parental
rights to his minor child, S.B.G. W.G.’s court-appointed counsel on appeal, who
also represented W.G. in the trial below, has filed a motion to withdraw from
representing W.G. and an Anders brief in which he opines that no valid grounds for
appeal exist and that W.G.’s appeal is frivolous. See Anders v. California, 386
U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); In re K.D., 127 S.W.3d 66, 67 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). W.G. has not filed a response. The
State waived its opportunity to file an appellee=s brief.
When this Court receives an Anders brief from an appellant’s court-
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. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing
court—and not counsel—determines, after full examination of proceedings,
whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991) (same); Martin v. Dep’t of Family & Protective Servs., No. 01-
07-00842-CV, 2009 WL 276759, at *1 (Tex. App.—Houston [1st Dist.] Feb. 5,
2009, pet. denied) (stating that reviewing court must conduct independent review
of entire record to determine whether arguable grounds for appeal exist). An
arguable ground for appeal is a ground that is not frivolous; it must be an argument
that could Aconceivably persuade the court.@ See In re Schulman, 252 S.W.3d 403,
407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v. Court of Appeals of Wisc.,
Dist. I, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)). However, “[w]hen we
identify issues that counsel on appeal should have addressed but did not, we need
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not be able to say with certainty that those issues have merit; we need only say that
the issues warrant further development by counsel on appeal.” Wilson v. State, 40
S.W.3d 192, 200 (Tex. App.—Texarkana 2001, no pet.) (citing Wilson v. State,
976 S.W.2d 254, 257 n.4 (Tex. App.—Waco 1998, no pet.)).
Our role in this Anders appeal is limited to determining whether arguable
grounds for appeal exist. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.
App. 2005). If we determine that arguable grounds for appeal exist, we must abate
the appeal and remand the case, and W.G. is entitled to have new counsel address
the merits of the issues raised. Id. “Only after the issues have been briefed by new
counsel may [we] address the merits of the issues raised.” Id.
In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and
Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record and appointed
counsel’s Anders brief. The record on appeal suggests that there are at least two
arguable grounds for appeal: (1) whether the evidence is legally sufficient to
support the trial court’s termination order; and (2) whether the evidence is factually
sufficient to support the trial court’s termination order. See TEX. FAM. CODE ANN.
§ 161.001(1), (2) (West Supp. 2012); In re J.O.A., 283 S.W.3d 336, 344–45 (Tex.
2009); Ruiz v. Tex. Dep’t of Family & Protective Servs., 212 S.W.3d 804, 813–14
(Tex. App.—Houston [1st Dist.] 2006, no pet.). We note also that although the
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reporter’s record contains photocopies of two compact discs, marked as
petitioner’s exhibits 1 and 2, containing medical records pertaining to S.B.G. and
S.B.G.’s mother, the actual contents of the discs are not contained within the
appellate record, and that the medical records may provide a record that might
assist an appointed counsel in determining whether there are any arguable grounds
to present on appeal.
Accordingly, we order that the court reporter file a supplemental reporter’s
record containing the original discs in this Court within 10 days of the date of this
order. See TEX. R. APP. P. 34.6(d), (g)(2). The Clerk of this Court is directed to
cooperate with the district clerk and/or court reporter to provide for the
safekeeping, transportation, and return of such exhibits. See TEX. R. APP. P.
34.6(g)(2). We also abate this appeal and remand the cause for the trial court to
appoint new appellate counsel to represent W.G. Counsel’s brief will be due 20
days from the later of the date the supplemental reporter’s record is filed or the
date counsel is appointed, regardless of whether this Court has yet reinstated the
appeal, and counsel is required to:
(1) Fully investigate and make a conscientious examination of the record;
(2) Address all arguable, non-frivolous grounds for appeal in a brief on the
merits;
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(3) Specifically address the issues of whether the Department of Family and
Protective Services introduced sufficient evidence to prove, by clear and
convincing evidence, that W.G. committed one or more of the acts listed
in subsections (E), (O), and (P) of section 161.001(1) of the Texas
Family Code and that termination was in S.B.G.’s best interest,1 with
particular reference to whether there was clear and convincing evidence
to show that W.G. engaged in conduct that endangered S.B.G’s physical
or emotional well-being,2 or that S.B.G. was in DFPS’s control as a result
of abuse or neglect of S.B.G.3 and that there was a court order
1 See TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2012); Ruiz v. Tex.
Dep’t of Family & Protective Servs., 212 S.W.3d 804, 813–14 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (stating that appellate court may only affirm trial
court’s termination order on basis of subsection of section 161.001 found by trial
court to have been violated).
2 TEX. FAM. CODE ANN. § 161.001(1)(E); see In re J.K.F., 345 S.W.3d 706, 711
(Tex. App.—Dallas 2011, no pet.) (holding that relevant time frame for
determining whether there is clear and convincing evidence of endangerment to
child is before child was removed); In re A.S., 261 S.W.3d 76, 84–86, 88 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied) (holding that conduct entirely
occurring prior to child’s birth does not establish endangerment; that
imprisonment of parent, standing alone, does not constitute endangerment; and
that incarceration on indictment and awaiting trial, by itself, does not support
termination under section 161.001(1)(E)).
3 TEX. FAM. CODE ANN. § 161.001(1)(O); see In re K.N.D., No. 01-12-00584-CV,
— S.W.3d —, 2012 WL 6721047, at *5–6 (Tex. App.—Houston [1st Dist.] Dec.
21, 2012, no pet. h.) (holding that termination requires proof that child was
subjected to abuse or neglect and proof that removal occurred because of abuse or
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establishing the actions necessary for W.G. to obtain S.B.G.’s return,4 or
that W.G. used a controlled substance in a manner that endangered
S.B.G.’s health or safety5; and
(4) Address any other grounds counsel deems appropriate.
See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (“The court’s
duty is to determine whether there are any arguable grounds and if there are, to
neglect, and holding that evidence of endangerment is not sufficient for removal
under section 161.001(1)(O)); In re C.B., 376 S.W.3d 244, 250–52 (Tex. App.—
Amarillo 2012, no pet.) (applying chapter 261’s definitions of abuse and neglect
and holding that evidence of volatile home environment was insufficient to
support termination pursuant to section 161.001(1)(O) without showing of actual
occurrence of abuse or neglect); In re A.A.A., 265 S.W.3d 507, 515 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (holding that termination requires proof by
clear and convincing evidence that child was removed because of abuse or
neglect).
4 TEX. FAM. CODE ANN. § 161.001(1)(O); see TEX. FAM. CODE ANN. § 263.106
(West Supp. 2012) (requiring trial court to incorporate service plan into orders of
court); In re S.A.P., 169 S.W.3d 685, 705–06 (Tex. App.—Waco 2005, no pet.)
(finding insufficient evidence to support termination pursuant to section
161.001(1)(O) when no court order establishing actions necessary for child’s
return was in evidence and only service plan in evidence failed to indicate that it
was court-ordered).
5 TEX. FAM. CODE ANN. § 161.001(1)(P) (West Supp. 2012); cf. In re J.K.F., 345
S.W.3d 706, 711 (Tex. App.—Dallas 2011, no pet.) (holding that relevant time
frame for determining whether there is clear and convincing evidence of
endangerment to child is before child was removed); In re Cochran, 151 S.W.3d
275, 280 (Tex. App.—Texarkana 2004) (holding that conduct occurring prior to
conception could not, without showing of current conditions or actions that would
constitute danger to child’s health or safety, support finding that parent committed
acts or omissions that posed danger to child).
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remand to the trial court so that new counsel may be appointed to brief the
issues.”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (“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.”).
An appeal from a judgment terminating parental rights is an accelerated
appeal, which this Court should dispose of “within 180 days of the date the notice
of appeal is filed.” TEX. R. JUD. ADMIN. 6.2; see TEX. FAM. CODE ANN.
§§ 109.002(a), 263.405(a) (West Supp. 2012). Accordingly, no extensions of time
will be granted absent extraordinary circumstances. See TEX. R. APP. P.
38.6(d) (providing that decision on motions to extend time to file briefs is
discretionary and allowing court to shorten time for filing briefs). Counsel who
agrees to handle this appeal should do so only if he or she can satisfy the deadlines
set herein. Counsel for the Department of Family and Protective Services is also
advised that he or she should not seek an extension absent good cause, and any
extension will be very short.
We further order that a supplemental clerk’s record be filed with this court
containing the name, address, and state bar number of the new counsel appointed.
We grant W.G’s appointed counsel’s motion to withdraw.
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The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the
appellant’s brief is filed in this Court.
It is so ordered.
Judge’s signature: /s/ Harvey Brown

Panel consists of Chief Justice Radack and Justices Higley and Brown.
Date: January 31, 2013
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