B.H. v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: January 14, 2014
• Docket: 01-11-00704-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: B.H. v. Department of Family and Protective Services

Appellate case number: 01-11-00704-CV

Trial court case number: 9823370

Trial court: 309th District Court of Harris County

Appellant, B.H., appeals from the “Agreed Final Order Modifying Prior Order and Decree in Suit Affecting the Parent-Child Relationship,” signed by the trial court on July 28, 2011. In connection with her appeal, appellant also requested appointment of counsel due to her indigence. We thus abated and remanded the case to the trial court for a hearing and findings on whether appellant was indigent. Subsequently, appellant was declared indigent and the trial court appointed counsel for appellant on appeal. On October 22, 2013, appellant’s appointed counsel filed a motion to withdraw and an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Appellant has not filed an Anders response. Appellee has filed a waiver of opportunity to respond to the Anders brief. There is a statutory right to counsel for indigent persons in parental termination cases. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); In re Medaris, No. 14-04-00543-CV, 2004 WL 1405734, at *1 (Tex. App.—Houston [14th Dist.] June 24, 2004, orig. proceeding). This includes the right to an attorney on appeal from a judgment terminating parental rights. See In re Medaris, 2004 WL 1405734, at *1; In re K.M., 98 S.W.3d 774, 776 (Tex. App.—Fort Worth 2003, orig. proceeding). However, this case is not a parental termination case. The clerk’s record shows that this is a conservatorship case. We do not find that there is an additional right to counsel on appeal in this case, which does not involve the termination of parental rights. See In re K.M., No. 07-04-0442-CV, 2004 WL 2826851, at *4 (Tex. App.—Amarillo Dec. 8, 2004, orig. proceeding). Thus, the appointment of counsel to represent appellant on appeal was improper. Accordingly, the Court grants appointed counsel’s, Elsie Martin-Simon, motion to withdraw and strikes the Anders brief previously filed on October 22, 2013. Appointed counsel is ordered to immediately notify appellant in writing of all deadlines and settings of which counsel is aware of and to file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). The Court also strikes appellee’s waiver of opportunity to respond to appellant’s Anders brief filed on November 12, 2013. Further, we ORDER appellant to file a brief within 30 days of the date of this order. See TEX. R. APP. P. 38.6(d). Appellee’s brief, if any, will be due 30 days from the date appellant’s brief is filed. See TEX. R. APP. P. 38.6(b). Due to the previous delays in this appeal, no further extensions of time to file either brief will be granted, absent extraordinary circumstances. It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley  Acting individually  Acting for the Court

Date: January 14, 2014