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