### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00767- CV

A.M., Appellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. 201 0-0 384, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an acc eler ated appea l from an order terminating the pare nta l r ig h ts o f a p p e ll a n t A.M. t o her child, K.M.W. After a final hear ing, the trial court order ed A.M.’s pare ntal rig hts 1
terminated based upon finding s that she had constructively abandone d her child and that termination was in the be st interest of the child. See Tex. Fam. Code Ann. § 161.001(1) (N), (2) (West Supp. 2010). A.M. filed a motion for ne w trial, a state ment of poi nts on appea l, and a notice of appea l. The trial court held a hear ing pursuant to section 263.405 of the fa mily code. See id

. § 263.405 (West 2008) (proc edure for appea ling final order ). The trial court denied A.M.’s motion for new trial and, afte r considering her statem en t o f p o i n t s on appea l, deter mined that her appea l was frivolous. See id

. § 263.405(i) (appe al of termination order limit ed to issues prese nted in statement of points on appea l).

We use aliases to re fer

to appellant and he r child. See Tex. R. App. P . 9.8. 1An appea l is frivolous when it lacks an arg uable basi s in law or in fac t. See id

.

§ 263.405(d)( 3) (appe al is frivolous as provided by section 13.003(b) of civil prac tice and reme dies code) ; In re K.D. , 202 S.W .3d 860, 865-66 (Tex

. App.—For t W o rt h 2 0 0 6 , no pet.). When a trial
court makes a frivolousness finding , an ag g rieve d pare nt’s appea l is initially limit ed to appea ling the trial court’ s finding tha t the appea l is frivolous. See Tex. F am. Code Ann. § 263.405(g ); Lumpkin

v. Departme nt of

Family & Protective Servs ., 260 S.W .3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.); In re K.D. , 202 S.W .3d at 865. We revie w a trial court’s frivolousness finding under

an abuse of discretion standard. Lumpkin , 260 S.W .3d at 526-27. A trial court abuses its discretion when it acts without ref

ere nce to any g uiding rules or principles. Id

. (citing Downer v. Aquamarine Op er a t o r s , Inc ., 701 S.W .2d 238, 241-42 (Tex. 1985)). I n underta king our revie w, we limit o u r revie w to the pare nt’s statement of points on appea l a nd the re cord f

rom the hear ing held pursuant to section 263.405(d) of

the fa mily

code. See Tex. Fam. Code Ann. § 263.405( d), (g ), (i).
A.M.’s court-a

ppointed attorney has filed an Anders brief. See Anders v. Calif ornia , 386 U.S. 738, 744 (1967); Taylor v. Texas Dep’ t of Protective & Regulatory Servs ., 160 S.W .3d 641,
646-47 (Tex. App.—Austin 2005, pet. denied) (apply ing Anders proce dure in ap p eal from termination of pare ntal rig hts); In re K.D. , 127 S.W .3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003,

no pet.) (same)

. A.M.’s attorney states that he car efully examined the rec ord and rese arc hed rele vant
statutes and case law and conclude s that the appea l prese nts only leg ally frivolous issues. The brief filed by A.M.’s attorney meets the require ments of Anders by prese nting a profe ssional e valuation of the rec ord and demonstrating that there are no arg uable g rounds for appea l. See Anders , 386 U.S. at 744. The rec ord ref lects that A.M.’s attorney serve d a copy of the Anders brief on

2A.M. on April 21, 2011, and informed her of her rig ht to fi l e a p ro s e b ri ef. A.M. has not filed a

pro se br ief.
We have car efully re v i ew ed the rec ord and counsel’s brief, and we have found nothing that would arg uably support an appea l. Acc ording ly , we conclude that the trial court acte d within its discretion in finding that the appea l is frivolous and aff irm the trial cou rt ’s order terminating A.M.’s par ental rig hts to K.M.W

. 2

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin
Affir med Filed: June 16, 2011

We g rant A.M.’s appellate attorney ’s motion t o wi t h d ra w. We order A.M.’s appellate 2 attorney to notify A.M. of the dispositi on of this appea l and the availability of discretionar y revie w to the Texas Supreme Court. See In re K.D. , 127 S.W .3d 66, 68 n.3 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We also dismis s as moot the motion to wit hdraw and appoint attorne y

and motion for extension of time to file appellant’ s brief that was filed by A.M.’s trial attorney prior to our abate ment order . On re mand, the trial c ourt g rante d A.M.’s trial attorne y ’s motion to withdraw. 3