Opinion
No. 11-17-00204-CV
10-12-2017
IN THE INTEREST OF J.A.P. AND J.E.P., III, CHILDREN
On Appeal from the 446th District Court Ector County, Texas
Trial Court Cause No. E-3549-PC
ORDER
In this accelerated parental-termination appeal, the father's court-appointed trial counsel filed a notice of appeal on the father's behalf. The trial court subsequently granted trial counsel's motion to withdraw, found that the father remained indigent, and appointed Delilah Schroeder to represent the father in this appeal. We abate the appeal.
Schroeder has filed in this court a motion to withdraw the notice of appeal, and she requests that this appeal be dismissed. In the motion, Schroeder asserts that she has been "unable to locate [her] client" and, therefore, does "not have any guidance on his desires." Schroeder points out that the father did not appear in the trial court for the de novo hearing in this case and that he has not returned her attempts to contact him. Schroeder states that she does not feel that she can move forward with this appeal without the father's input.
Although we recognize that Schroeder has not filed a motion to withdraw as counsel in this case, we believe that the Texas Supreme Court's opinion in In re P.M., 520 S.W.3d 24 (Tex. 2016), reflects upon this court's duties in this appeal. In P.M., the supreme court determined that courts "have a duty to see that withdrawal of counsel will not result in foreseeable prejudice to the client" in a parental termination case. 520 S.W.3d at 27. The court in P.M. stressed the importance of counsel for the parents in such cases when it stated, "If a court of appeals allows an attorney to withdraw, it must provide for the appointment of new counsel to pursue a petition for review." Id. The court also indicated that this court should abate an appeal and refer the case to the trial court for the appointment of new counsel when new counsel is necessary. Id. at 27 n.13. Because Schroeder does not indicate in her motion that the father desires that his notice of appeal be withdrawn or that this appeal be dismissed, we conclude that this appeal must be abated so that the trial court may determine whether the father desires to prosecute this appeal.
Accordingly, we abate this appeal and remand the cause to the trial court so that it may determine whether the father wishes to prosecute this appeal. The trial court is directed to conduct a hearing on or before November 1, 2017. We note that the father need not appear in person at the hearing and that the trial court may permit him to appear via telephone. We note that if, after receiving notice of the hearing, the father fails to appear, the trial may find that the father does not desire to prosecute this appeal. See TEX. R. CIV. P. 165a. The district clerk is directed to immediately file a supplemental clerk's record in this court containing the trial court's findings and conclusions and any order entered by the trial court with respect to the father's desire to pursue this appeal. Additionally, the court reporter is directed to immediately file a reporter's record from the hearing. When the supplemental records are filed, the appeal will be reinstated.
We note that this appeal is accelerated, and so far as reasonably possible, this court must ensure that the appeal is brought to final disposition by January 24, 2018, which is 180 days after the notice of appeal was filed in this case. See TEX. R. APP. P. 28.4; TEX. R. JUD. ADMIN. 6.2(a).
The appeal is abated.
PER CURIAM October 12, 2017 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.