## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07 - 16 - 00410 - CV
IN THE INTE REST OF X.H., A CHIL D
On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2015 - 515,369, Honorable Jim Bob Darnell, Presiding



### February 6 , 2017 ABATEMENT AND REMAND Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. In this appeal, the mother of X.H. 1 challenges the trial court’ s order terminating her parental rights. Appellee is the Texas Department of Family and Protective Services

. On January 25, 2017, the mother’s court - appointed appellate counsel filed an Anders

2 brief and a copy of a letter from counsel to the mother. According to the letter,

1 To protect th e child’ s privacy, we will refer to the parent as “the mother” and the child by his initials. See T EX
. F AM
. C ODE A NN . § 109.002(d) (West 2014 ); T EX
. R. A PP
. P. 9.8(b).
2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)

.2

counsel pr ovided the mother a copy of her brief and the record and notified the mother of her right to file a pro se response to counsel’s brief. In her brief, counsel discussed potential appellate issues but concluded no arguable error was shown

. Pursuant to our obligations when appointed counsel files an Anders brief, we have reviewed the appellate record brought forward

. See In re P.M., No. 15
- 0171, 2016 Tex. LEXIS 236, at * 8, n.10 (Tex. Apr. 1, 2016) (per curiam) (application of Anders procedures in parental
- rights termination cases, citing In re D.A.S. , 973 S.W.2d 296, 297 (Tex. 1998)); In re A.W.T., 61 S.W.3d 87, 88
- 89 (Tex. App.

— Amarillo 2001, no pet.) (per curiam) (termination case); see also In re Schulman, 252 S.W.3d 403, 407 (Tex

. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); High v. State , 573 S.W.2d 807 (Tex. Crim. App. 1978). After doing so, we are not yet satisfied that the appeal is wholly frivolous. See In re D.A.S., 973 S.W.2d at 297 ( An ders analysis “assists the appellate court in determining whether the appeal is indeed wholly frivolous”); High , 573 S.W.2d at 811 (“in the last analysis, it is up to the court, not counsel, ‘after a full examination of all proceedings, to decide whether t he case is wholly frivolous’”) (quoting Anders , 386 U.S. at 744); see also Penson v. Ohio, 488 U.S. 75, 82, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) ( Anders brief serves valuable purpose of assisting court in determining both that counsel has conducted the required detailed review of case and that “appeal is indeed so frivolous that it may be decided without an adversary presentation”). The record reveals a matter , not mentioned in counsel’s Anders brief, on which we require further briefing. After the a ssociate judge signed an order terminating her parental rights, the mother requested a de novo hearing before the referring district court. T EX
. F AM
. C ODE3

A NN
. § 201.2042 (West 2014 ). 3 When the district court convened its de novo hearing, t he proceeding began with the c ourt asking counsel for the Department if she had “additional evidence to present.” Counsel stated she had no additional evidence and requested a ruling based on “the review of the transcript that has been prov ided to t he Cou rt . . . .” The mother’s counsel requested that the Department be required to present its case for termination anew. Counsel expressed her client’s desire that the Department “have to proceed in presenting all the evidence against her to prove to this Co urt by clear and con vincing evidence” that termination was proper. Counsel continued, “ So we would ask that the Department start this hearing by calling its first witness to proceed as if we were starting over. ” The court responded: The Court will deny th at request. The Court has notified the attorneys that the Court would allow any additional evidence or testimony to be presented after
-- at this point in time because the Court has reviewed the transcripts. And the Court is of the opinion that it’s not nec essary to hear the evidence over again. The m other then presented the brief testimony of two witnesses. Following argument , the court rendered judgment “affirm[ing]” the associate judge’s termination of the mother’s parental rights. Counsel has indi cated a desire to withdraw from her representation of the mother in this appeal. Finding good cause, we grant counsel’s request; she is relieved of her

3 In her written request for a de novo hearing the mother specified the issues to be presented to the referring court. See T EX
. F AM
. C ODE A NN
. § 201.015(b). She challenged each of the statutory predicate findings for termination made by the associate judge as well as his best interest finding.4

duties. See T EX
. F AM
. C ODE A NN
. § 107.016(2) (West 2014); 4 see also Stafford, 813 S.W.2d at 511 (“ if t he Court of Appeals does find that there are arguable grounds, the appellate cour t must then guarantee appellant’ s right to counsel by ensuring that another attorney is appointed t o represent appellant on appeal” (emphasis in original)).
We abate the appe al and remand the cause to the 140th District Court of Lubbock County. On remand, the district court shall appoint new counsel to represent the mother in this appeal. See In re P.M., 2016 Tex. LEXIS 236, at *8 (“ An appellate court must ordinarily refer t he matter of appointment of replacement counsel to the trial court ”). The district court shall cause the name, email and postal addresses, telephone number, and state bar number of the newly
- appointed counsel to be included in a supplemental record. The record of that appointment shall b e filed with the C lerk of this C ourt on or before Febru ary 17 , 2017. Additionally, the district court shall order the newly
- appointed counsel to file an appellant’s brief, according to the Texas Rules of Appellate Procedure, addressing the issue whether the mother was denied a proper de novo hearing before the referring district court, 5 and addressing any other arguably meritorious ground counsel sees for

4 Counsel’s request that she be allowed to withdraw from her representation of the mother was included in her prayer for relief in the Anders brief. She did not file a motion to withdraw. We disapprove of this procedure. Counsel filing an Anders brief in a parental rights termination case should file a motion to withdraw, just as in a criminal case. See In re Schulman, 252 S.W.3d at 404, 407
- 08

. The c ourt will determine the disposition to be made of the motion to withdraw. As the court noted in In re P .M., 2016 Tex. LEXIS 236, at *8 , an “ Anders motion to withdraw” filed in the court of appeals may be premature. In this case, the motion would not have been premature, and would have been granted.

5 By way of example only and not as a limitation on couns el’s briefing, counsel may want to consider whether authorities such as AG v. Orr, 989 S.W.2d 464, 467
- 4685

reversal or modification of the district court’s judgment. If counsel contends the court erred in any respect, counsel shall address the subject of harm.
Abs ent a request for extension from newly
- appointed counsel, the mother’s brief shall be filed no later than twenty days from the date of newly
- appointed counsel’s appointment. A response brief may be filed by the Department within twenty days after the fili ng of the mother’s brief. 6
It is so ordered. Per Curiam

(Tex. App.

— Austin 1999, no pet.); Woodard v. Office of the AG of Tex., No. 01
- 07 - 00954 - CV, 2009 Tex. App. LEXIS 2090, at *5 (Tex. App.

— Houston [1st D ist.] Mar. 26, 2009, no pet.) (mem. op.); and 22
- 360A William V. Dorsaneo III, Larry L. Martin, and Nicholas V. Rothschild, T EXAS L ITIGATION G UIDE § 360A.10[4][b] (Lexis 2016) describe the correct de novo hearing procedure before a referring court in a child protection case

.

6 The notice of appeal in this case was filed November 4, 2016. See In re L.S., No. 02
- 16 - 00197 - CV, 2016 Tex. App. LEXIS 10027 , at *1 (Tex. App.

— Fort Worth Sep t. 8, 2016, no pet.) (mem. op.) (referring to appeals such as this as “ ultra
- accelerated,” citing T EX
. R. J UD
. A DMIN
. 6.2(a) ( “ In an appeal of a suit for termination of the parent
child relationship

. . . appellate courts should, so far as reasonably possible, ensure that the appeal is brought to final disposition ” within 180 days after the notice of appeal is filed ) )

. Extensions of time cannot be liberally granted.