in the Interest of D.S., N.S., Children

Opinion

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).

2 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

3 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