Opinion
No. 07-18-00056-CV
05-24-2018
IN THE INTEREST OF T.W., A CHILD
On Appeal from the County Court at Law No. 1 Randall County, Texas
Trial Court No. 69,993-L1, Honorable Jack M. Graham, Presiding
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Both parents of T.W. have appealed the trial court's judgment in which it terminated the parents' relationship with T.W. The attorneys representing the parents filed their motions to withdraw and their Anders briefs in support thereof based on their conclusions that no arguable issues are shown on the record in this case. Having complied with our duty to independently review the record for potential errors, "we are not yet satisfied that the appeal is wholly frivolous." In re X.H., No. 07-16-00410-CV, 2017 Tex. App. LEXIS 1011, at *1 (Tex. App.—Amarillo Feb. 6, 2017, order) (per curiam). Accordingly, we abate the cause and remand it to the trial court for appointment of new counsel for the parents. See In re R.A.L., No. 07-16-00322-CV, 2016 Tex. App. LEXIS 12257, at *2 (Tex. App.—Amarillo Nov. 15, 2016, pet. denied) (per curiam) (mem. op.).
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)
From the record before us, we see that the order in which the Department is first named temporary managing conservator was signed on April 27, 2016. The trial on the merits appears to have commenced on January 17, 2018. At first glance, it would appear that this extended length of time runs afoul of the mandatory dismissal scheme provided in the Texas Family Code. See TEX. FAM. CODE ANN. § 263.401(a) (West Supp 2017) (providing for dismissal if the trial court has not commenced trial on the merits by the first Monday following the first anniversary of the date the court render a temporary order appointing the Department temporary managing conservator). While the right to dismissal has traditionally been treated as a forfeitable right in the absence of a motion or request seeking such relief, the Texas Legislature recently amended § 263.401 to make its deadline jurisdictional in nature. See generally In re K.M., No. 05-16-01048-CV, 2017 Tex. App. LEXIS 1074, at *3-4 (Tex. App.—Dallas Feb. 7, 2017, pet. denied) (mem. op.) (concluding that failure to move for dismissal under § 263.401 forfeited right to object to trial court's failure to dismiss); see also Act of May 26, 2017, 85th Leg., R.S., ch. 317, § 27, 2017 Tex. Gen. Laws 615, 623. There also appears to be a question concerning whether § 263.401 will apply only to cases filed on or after September 1, 2017, or also apply to cases pending in the trial court on that date.
That said, we grant counsels' motions to withdraw, abate the appeal in our Court, and remand the cause to the trial court for appointment of new counsel for the parents on appeal. On appeal, new counsel will file new briefs on behalf of the parents. The Court directs new counsel to address the viability of the following issues and all other issues new counsel may deem arguable on appeal: (1) whether the period of time from the date the trial court rendered the order in which the Department is first named temporary managing conservator to the date on which trial on the merits commenced exceeded the one-year period provided in § 263.401; (2) if so, whether the amendment to § 263.401 which now ostensibly treats this violation as a jurisdictional defect would apply to this case when it was pending on the date said amendment became effective; and (3) if so, what impact would the application of § 263.401 have on the instant case.
The trial court shall include in its orders appointing counsel the name, address, telephone number, and state bar numbers of the new attorneys and cause its order appointing new counsel to be included in a supplemental clerk's record which shall be filed with the Clerk of this Court by June 8, 2018. Appellants' briefs shall be due twenty days from the date of the trial court's appointment of new counsel. All parties are reminded of the accelerated nature of appeals related to parental-termination cases.
It is so ordered.
Per Curiam