in the Interest of K.M.W., a Child

• Court: Court of Appeals of Texas
• Decided: August 7, 2013
• Docket: 02-13-00202-CV
• Status: Published

Opinion

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00201-CV

IN THE INTEREST OF A.R.D., A CHILD

NO. 02-13-00202-CV

IN THE INTEREST OF K.M.W., A CHILD

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

ABATEMENT ORDER

This is a suit for termination of appellant A.M.P.’s parental rights to her

children, A.R.D. and K.M.W. The suit was initiated by the children’s

grandparents, who have been the children’s managing conservators since 2005. FILE COPY

[PX2] The Department of Family and Protective Services is not a party to the

case.

Although appellant’s brief was due in this court by July 11, 2013, it has not

been filed. On July 18, 2013, the clerk of the court notified appellant’s counsel of

this fact and notified appellant’s counsel that the appeal could be dismissed for

want of prosecution unless appellant or any party desiring to continue the appeal

filed with the court a motion reasonably explaining the failure to file a brief and

the need for an extension by July 29, 2013. See Tex. R. App. P. 38.8(a).

Appellant’s counsel has not responded.

When an appellant’s brief has not been filed in a civil case, rule of

appellate procedure 38.8(a) provides that this court may, before an appellee’s

brief has been filed, either dismiss the appeal for want of prosecution or “decline

to dismiss the appeal and give further direction to the case” as the court deems

proper. Tex. R. App. P. 38.8(a). Counsel for appellant filed a notice of appeal on

appellant’s behalf, arranged for payment of the reporter’s and clerk’s records for

this appeal, and filed a docketing statement, but counsel has not filed appellant’s

brief by the deadline or responded to our inquiry about the failure to do so. We

are thus concerned that appellant’s retained counsel may have abandoned the

appeal. Under these circumstances, and because this case involves the

termination of appellant’s parental rights to her children, the court believes that

further action is necessary and that it is appropriate to employ the procedure

used in criminal appeals when retained counsel does not timely file the

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appellant’s brief. Compare Tex. R. App. P. 38.8(a)(2) with Tex. R. App. P.

38.8(b)(2), (3).

Accordingly, we abate the appeal and remand this case to the trial court.

Within ten days of the date of this order, the trial court shall conduct a hearing

with appellant, appellant’s retained counsel, and counsel for appellees present.

The attorney ad litem may, but is not required to, attend the hearing. The

purpose of the hearing is for the trial court to determine whether appellant

desires to continue the appeal and whether retained counsel for appellant has

abandoned the appeal. If retained counsel has abandoned the appeal, the trial

court should also consider whether appellant should be allowed to substitute

counsel or have counsel appointed for the appeal. We note, however, that

appellant does not have a statutory right to appointment of counsel because this

is a private termination case that was not initiated by the Department of Family

and Protective Services.1 See In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort

Worth 2008, pet. denied). These matters are committed to the trial court’s

discretion, and we must therefore abate the appeal so that the trial court may

conduct a hearing and issue any necessary orders related to the topics described

above. See id. (noting this court’s abatement of appeal for the trial court to

1We also note that although a civil litigant has no general constitutional right to appointed counsel, the trial court does have discretion to appoint counsel in exceptional cases “to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause.” Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003) (quoting Tex. Gov’t Code Ann. § 24.016 (West 2008)). 3 FILE COPY

consider the discretionary appointment of counsel for parent in private

termination proceeding).

The trial court shall file a record of the hearing in this court within five days

of the date of the hearing. The record shall include a supplemental clerk’s record

and a supplemental reporter’s record containing the trial court’s findings of fact

and conclusions of law. On our receipt of the supplemental record, the appeal of

this cause shall automatically be reinstated without further order.

The clerk of this court shall transmit of a copy this order to the attorneys of

record, the trial court judge, the trial court clerk, and the court reporter.

DATED August 7, 2013.

PER CURIAM