Opinion
No. 06-17-00094-CV
01-26-2018
IN THE INTEREST OF P.M.W. AND J.A.J., CHILDREN
On Appeal from the 196th District Court Hunt County, Texas
Trial Court No. 82557 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
After a trial before the court, the trial court entered its order terminating K.T.'s parental rights to her child, J.A.J., appointed the Texas Department of Family and Protective Services (the Department) as permanent managing conservator of J.A.J. and of K.T.'s other child, P.M.W., and appointed K.T. possessory conservator of P.M.W. K.T. appeals.
We refer to the children and their parents by their initials to protect the privacy of the children. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017).
K.T.'s attorney has filed an appellate brief in which he concludes that, after a review of the record and the related law, the appeal is frivolous and without merit. The brief presents several arguable points of error, but after a discussion of the applicable law and facts, counsel has concluded that these points do not present reversible error. The brief thus meets the requirements of Anders v. California, 386 U.S. 738 (1967), and In re P.M., 520 S.W.3d 24, 27 n.10 (Tex. 2016) (citing In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding)). Counsel has informed K.T. of her right to review the record and to submit a pro se response, and of the deadline within which to do so. By letter dated November 15, 2017, this Court informed K.T. that any pro se response was due on or before December 16, 2017. On January 10, 2018, this Court further informed K.T. that the case would be set for submission on the briefs on January 31, 2018. Although K.T. requested, and we granted, two extensions of time to file her pro se response, we did not receive a pro se response from K.T.
As required by the Texas Supreme Court in In re D.A.S., we have conducted our own investigation of the record to discover if there is an arguable ground for appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig.proceeding). We have identified several arguable issues that merit briefing: (1) whether counsel rendered ineffective assistance in failing to file a motion to dismiss challenging the trial court's order retaining this suit on its docket; and (2) whether the trial court erred in failing to specifically and expressly state the times and conditions for K.T.'s access to P.M.W.
See In re C.T., 491 S.W.3d 323, 329 (Tex. 2016) (orig. proceeding) (Guzman, J., dissenting); In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 643 (Tex. 2009) (orig. proceeding).
See In re J.Y., 528 S.W.3d 679, 689-90 (Tex. App.—Texarkana 2017, no pet.).
When we identify any legal issues arguable on their merits, we "must either deny counsel's motion to withdraw or appoint substitute counsel." Id. (citing Anders, 386 U.S. at 744). In this case, K.T.'s appellate counsel also represented her at trial.
Therefore, we grant current counsel's motion to withdraw, and we abate this case to the trial court for the appointment of new appellate counsel. The appointment is to be made within ten days of the date of this order. Appellate counsel is to address the issues presented here, as well as any other issues that warrant further development on appeal. Because this case involves an appeal from the termination of K.T.'s parental rights, this matter should be expedited at all levels, and when counsel is appointed, he or she should be prepared to pursue the appeal without further delay.
A memorialization of the trial court's appointment shall be entered into the record of this case and presented to this Court in the form of a supplemental clerk's record within ten days of the date of appointment.
The current submission date of January 31, 2018, is hereby withdrawn, and all appellate timetables are stayed. This appeal will return to this Court's jurisdiction upon our receipt of the supplemental clerk's record, at which time we will establish a new briefing schedule.
IT IS SO ORDERED.
BY THE COURT Date: January 26, 2018