Opinion filed March 10 , 2011



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00080

- C V

__________ IN THE INTEREST OF L.K.H., A CHILD

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 23200

M E M O R A N D U M O P I N I O N The Texas Department of Family and Protective Services (the Department) instituted the underlying action seeking to terminate B.H.’s parental right to her daughter, L.K.H. In the

a lternative, the Department sought to be appointed as the permanent managing conservator of the
child. The trial court denied the requested termination of B.H

. ’s parental rights on the basis that
termination was not in the best interest of the child. However, the trial court appointed the Department as the permanent managing conservator of the child. B.H. attempts to appeal from this determination. We dismiss the appeal. Procedural History
Pursuant to T EX

. F AM

. C ODE A NN . § 26 3.405 (b) (Vernon 2008 ), B.H.’s trial counsel timely filed a motion for new trial, a statement of points on appeal, and a notice of appeal. After2

a hearing, the trial court concluded that B.H. was indigent, that her motion for new trial should be denied, a nd that her intended appeal was frivolous pursuant to T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 13.003(b) (Vernon 2002 )

. B.H.’s court

- appointed counsel subsequently filed a brief in this appeal regarding the merits of the trial court ’ s appointment of the Departm ent as permanent managing conservator. As we noted i n a previous order issued in this appeal, when a trial court makes a frivolous finding, an aggrieved parent ’ s appeal is initially limited to appealing the trial court’s finding that the appeal is frivolo us. See T EX

. F AM

. C ODE A NN

. § 263.405(g) (Vernon
2008 ) ; Lumpkin v. Dep ’ t of Fam

. & Protective Servs. , 260 S.W.3d 524, 526 (Tex. App.

— Houston [1st Dist.] 2008, no pet.); In re K.D. , 202 S.W.3d 860, 865

- 66 (Tex. App.

— Fort Worth 2006, no pet.). Accordingly, we issued an order abating the appeal that instructed counsel to file a brief addressing the trial court’s determination that B.H

. ’s intended appeal would be frivolous. Motion to Withdraw and Anders Brief Counsel has complied with our abateme nt order by filing a motion to withdraw and a supporting brief wherein he professionally and conscientiously examines the record and applicable law and states that he has concluded that an appeal of the trial court’s determination that the appeal would be frivolous would also be frivolous. Counsel has provided B.H. with a copy of the motion to withdraw and brief and has advised B.H. of her right to review the record and file a response to counsel’s brief. A response has not been filed. 1 Court

- appointed c ounsel has complied with the requirements of Anders v. California , 386 U.S. 738 (1967) and In re
Schulman , 252 S. W.3d 403 (Tex. Crim. App. 2008). In this regard, the practice recognized in
Anders for court

- appointed counsel to seek a withdrawal from a frivolous appeal applies to parental termination proceedings involving appointed counsel. See In re K.D. , 127 S.W.3d 66, 67 (Tex. App.

— Houston [1st Dist.] 2003, no pet.). Analysis Following the procedures outlined in Anders and Schulman , we have independently re

viewed the record, and we agree that the appeal is without merit and should be dismissed.
Schulman , 252 S.W.3d at 409. In this regard, an appeal is frivolous when it lacks an arguable
basis in law or in fact. See In re K.D. , 202 S.W.3d at 865

- 66. An appeal of a final order under

1 By letter, this c ourt initially granted B.H. thirty days in which to exercise her right to file a response to counsel’s motion to withdraw and brief. We additionally granted B.H. an additional sixty days to file her response by granting three motions for extension filed by B.H. The court advised B.H. in a letter dated January 6, 2011, that her response must be file d by February 10, 2011, “with no further extensions .”3

T EX

. F AM

. C ODE A NN

. § 263.405 (Vernon 2008) is limited to the issues presented in the statement of p oints. Section 263.405(i); Lumpkin , 260 S.W.3d at 527. If a trial court determines that an appeal is frivolous, the court has necessarily determined that each of the issues identified in the statement of points is frivolous. Lumpki n , 260 S.W.3d at 527. All of B.H.’s statement of points on appeal concern the legal and factual sufficiency of the evidence supporting various findings made by the trial court. Most of B.H

. ’s points address findings concerning the Department’s request to terminate parental rights. These points are immaterial because the trial
court did not terminate her parental rights. The remaining points address the trial court’s appointment of the Department as the child’s permanent managing conservator. We conclud e that there is no ar guable basis in law or fact to support an appeal of this determination by the trial

court. We grant court

- appointed counsel’s motion to withdraw. Additionally, w e order counsel to notify B.H. of the disposition of this appeal and the a vailability of discretionary review to the Texas Supreme Court . Counsel is directed to send B.H. a copy of the opinion and judgment within five days after the opinion is handed down, along with notification of her right to file a pro se petition for revie w under T EX

. R. A PP

. P . 53. Likewise, this court advises B.H. that she may file a petition for review pursuant to Rule 53. The motion to withdraw is granted, and the appeal is dismissed.

PER CURIAM

March 10 , 2011 Panel consists of: Wright, C.J., McCall, J., and Strange, J.