In re L.K.H.

The trial court determined that the termination of B.H.’s parental rights to her daughter L.K.H. was not in the best interest of the child but found that appointment of the Texas Department of Family and Protective Services (the Department) as L.K.H.’s permanent managing conservator was in the best interest of the child. Trial counsel timely filed pursuant to TEX. FAM. CODE ANN. § 263.405 (Vernon 2008) a motion for new trial, a statement of points on appeal, and a notice of appeal. After a hearing, the trial court concluded that B.H. was indigent, that her motion for new trial should be denied, that her appeal was frivolous pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(b) (Vernon 2002), and that counsel should be appointed pursuant to Section 263.405. B.H. appeals. We abate.

Because the trial court found that B.H.’s appeal was frivolous under Section 263.405(d) and Section 13.003(b), appellate review at this stage is limited to a review of the trial court’s exercise of its discretion in determining that her appeal was frivolous, and the merits of the trial court’s decision to appoint the Department permanent managing conservator is not before this court at this time. In re A.B., 269 S.W.3d 120, 124 (Tex. App.–El Paso 2008, no pet.); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526-27 (Tex. App.–Houston [1st Dist.] 2008, no pet.); In re K.D., 202 S.W.3d 860, 865 (Tex. App.–Fort Worth 2006, no pet.). Court-appointed appellate counsel filed a motion to withdraw and brief supporting his motion on the ground that the appeal is without merit. Counsel followed the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.–Eastland 2005, no pet.). A court-appointed attorney who examines the record and applicable law and concludes that the appeal from a final order appointing the Department as permanent managing conservator is frivolous would be entitled to proceed under Anders just as the same counsel would if the order was one terminating parental rights: in both situations the appointment of counsel is mandatory under Section 263.405(e), which may result in court-appointed counsel addressing the very ethical issues that Anders and its progeny address and resolve. Anders applies to appeals from the termination of parental rights. Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.–Austin 2005, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.–Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.–Houston [1st Dist.] 2003, no pet.); Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.–Corpus Christi 2003, no pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.–Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.–Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.–Tyler 2001, no pet.); In re AWT, 61 S.W.3d 87, 88 (Tex. App.–Amarillo 2001, no pet.).