X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
ORDER

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.).

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Florida Legal Awards 2022

May 19, 2022
Miami, FL

Daily Business Review honors attorneys and judges who have made a remarkable difference in the legal profession in Florida.


Learn More

Florida Legal Awards 2022 (FLLA)

May 19, 2022
Miami, FL

Daily Business Review honors attorneys and judges who have made a remarkable difference in the legal profession in Florida.


Learn More

WIPL.UK 2022

May 18, 2022 - May 19, 2022
London

The original national forum facilitating women-to-women exchange on leadership and current legal issues in the UK.


Learn More

Litigation Associate


A well-respected regional law firm that has represented businesses in Tampa Bay for decades is seeking a commercial litigation associate to ...


Apply Now ›

Medical Malpractice In-House Counsel


An innovative surgery center headquartered in the Tampa Bay area is seeking a Counsel to handle Medical Malpractice as well as general corpo...


Apply Now ›

Tax and T&E Attorney


The Tampa office of a highly-regarded regional law firm is seeking to add depth to their strong transactional team by adding experienced tax...


Apply Now ›

LAWRENCE LAW LLC

05/16/2022
NJLJ Web

Lawrence Law LLC congratulates Jeralyn Lawrence, Esq. on her upcoming installation as President of the New Jersey State Bar Association


View Announcement ›

RAYNES & LAWN

05/11/2022
TLI Web

RAYNES & LAWN is Proud to Welcome Next Generation to the Firm


View Announcement ›

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN

05/11/2022
TLI Web

VAN DER VEEN HARTSHORN & LEVIN Congratulates the Attorney of the Year Finalists named by The Legal Intelligencer


View Announcement ›