Order issued January 31, 2013

In The

Court of Appeals 

For The

First District of Texas 

NO. 01-12-00852-CV

IN THE INTEREST OF S.B.G., a Child

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 2011-04793J

ABATEMENT ORDER

Appellant, W.G., challenges the trial court’s order terminating his parental 

rights to his minor child, S.B.G. W.G.’s court-appointed counsel on appeal, who 

also represented W.G. in the trial below, has filed a motion to withdraw from 

representing W.G. and an Anders brief in which he opines that no valid grounds for 
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appeal exist and that W.G.’s appeal is frivolous. See Anders v. California, 386 

U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); In re K.D., 127 S.W.3d 66, 67 (Tex. 

App.—Houston [1st Dist.] 2003, no pet.). W.G. has not filed a response. The 

State waived its opportunity to file an appellee=s brief.

When this Court receives an Anders brief from an appellant’s courtappointed attorney who asserts that no arguable grounds for appeal exist, we must 

determine that issue independently by conducting our own review of the entire 

record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing 

court—and not counsel—determines, after full examination of proceedings, 

whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. 

Crim. App. 1991) (same); Martin v. Dep’t of Family & Protective Servs., No. 01-

07-00842-CV, 2009 WL 276759, at *1 (Tex. App.—Houston [1st Dist.] Feb. 5, 

2009, pet. denied) (stating that reviewing court must conduct independent review 

of entire record to determine whether arguable grounds for appeal exist). An 

arguable ground for appeal is a ground that is not frivolous; it must be an argument 

that could Aconceivably persuade the court.@ See In re Schulman, 252 S.W.3d 403, 

407 n.12 (Tex. Crim. App. 2008) (quoting McCoy v. Court of Appeals of Wisc., 

Dist. I, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988)). However, “[w]hen we 

identify issues that counsel on appeal should have addressed but did not, we need 
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not be able to say with certainty that those issues have merit; we need only say that 

the issues warrant further development by counsel on appeal.” Wilson v. State, 40 

S.W.3d 192, 200 (Tex. App.—Texarkana 2001, no pet.) (citing Wilson v. State, 

976 S.W.2d 254, 257 n.4 (Tex. App.—Waco 1998, no pet.)). 

Our role in this Anders appeal is limited to determining whether arguable 

grounds for appeal exist. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. 

App. 2005). If we determine that arguable grounds for appeal exist, we must abate

the appeal and remand the case, and W.G. is entitled to have new counsel address 

the merits of the issues raised. Id. “Only after the issues have been briefed by new 

counsel may [we] address the merits of the issues raised.” Id. 

In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and 

Bledsoe, 178 S.W.3d at 826–27, we have reviewed the record and appointed 

counsel’s Anders brief. The record on appeal suggests that there are at least two

arguable grounds for appeal: (1) whether the evidence is legally sufficient to 

support the trial court’s termination order; and (2) whether the evidence is factually 

sufficient to support the trial court’s termination order. See TEX. FAM. CODE ANN. 

§ 161.001(1), (2) (West Supp. 2012); In re J.O.A., 283 S.W.3d 336, 344–45 (Tex. 

2009); Ruiz v. Tex. Dep’t of Family & Protective Servs., 212 S.W.3d 804, 813–14 

(Tex. App.—Houston [1st Dist.] 2006, no pet.). We note also that although the 
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reporter’s record contains photocopies of two compact discs, marked as 

petitioner’s exhibits 1 and 2, containing medical records pertaining to S.B.G. and 

S.B.G.’s mother, the actual contents of the discs are not contained within the 

appellate record, and that the medical records may provide a record that might 

assist an appointed counsel in determining whether there are any arguable grounds 

to present on appeal.

Accordingly, we order that the court reporter file a supplemental reporter’s 

record containing the original discs in this Court within 10 days of the date of this 

order. See TEX. R. APP. P. 34.6(d), (g)(2). The Clerk of this Court is directed to 

cooperate with the district clerk and/or court reporter to provide for the 

safekeeping, transportation, and return of such exhibits. See TEX. R. APP. P. 

34.6(g)(2). We also abate this appeal and remand the cause for the trial court to 

appoint new appellate counsel to represent W.G. Counsel’s brief will be due 20 

days from the later of the date the supplemental reporter’s record is filed or the 

date counsel is appointed, regardless of whether this Court has yet reinstated the 

appeal, and counsel is required to:

(1)Fully investigate and make a conscientious examination of the record;

(2)Address all arguable, non-frivolous grounds for appeal in a brief on the

merits;
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(3)Specifically address the issues of whether the Department of Family and 

Protective Services introduced sufficient evidence to prove, by clear and 

convincing evidence, that W.G. committed one or more of the acts listed 

in subsections (E), (O), and (P) of section 161.001(1) of the Texas 

Family Code and that termination was in S.B.G.’s best interest,

1 with 

particular reference to whether there was clear and convincing evidence 

to show that W.G. engaged in conduct that endangered S.B.G’s physical 

or emotional well-being,

2

or that S.B.G. was in DFPS’s control as a result 

of abuse or neglect of S.B.G.3and that there was a court order 

 

1 See TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2012); Ruiz v. Tex.

Dep’t of Family & Protective Servs., 212 S.W.3d 804, 813–14 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (stating that appellate court may only affirm trial 

court’s termination order on basis of subsection of section 161.001 found by trial 

court to have been violated).

2 TEX. FAM. CODE ANN. § 161.001(1)(E); see In re J.K.F., 345 S.W.3d 706, 711 

(Tex. App.—Dallas 2011, no pet.) (holding that relevant time frame for 

determining whether there is clear and convincing evidence of endangerment to 

child is before child was removed); In re A.S., 261 S.W.3d 76, 84–86, 88 (Tex. 

App.—Houston [14th Dist.] 2008, pet. denied) (holding that conduct entirely 

occurring prior to child’s birth does not establish endangerment; that 

imprisonment of parent, standing alone, does not constitute endangerment; and 

that incarceration on indictment and awaiting trial, by itself, does not support 

termination under section 161.001(1)(E)).

3 TEX. FAM. CODE ANN. § 161.001(1)(O); see In re K.N.D., No. 01-12-00584-CV, 

— S.W.3d —, 2012 WL 6721047, at *5–6 (Tex. App.—Houston [1st Dist.] Dec. 

21, 2012, no pet. h.) (holding that termination requires proof that child was 

subjected to abuse or neglect and proof that removal occurred because of abuse or 
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establishing the actions necessary for W.G. to obtain S.B.G.’s return,

4

or 

that W.G. used a controlled substance in a manner that endangered 

S.B.G.’s health or safety5; and

(4)Address any other grounds counsel deems appropriate.

See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (“The court’s 

duty is to determine whether there are any arguable grounds and if there are, to 

 

neglect, and holding that evidence of endangerment is not sufficient for removal 

under section 161.001(1)(O)); In re C.B., 376 S.W.3d 244, 250–52 (Tex. App.—

Amarillo 2012, no pet.) (applying chapter 261’s definitions of abuse and neglect 

and holding that evidence of volatile home environment was insufficient to 

support termination pursuant to section 161.001(1)(O) without showing of actual 

occurrence of abuse or neglect); In re A.A.A., 265 S.W.3d 507, 515 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied) (holding that termination requires proof by 

clear and convincing evidence that child was removed because of abuse or 

neglect).

4 TEX. FAM. CODE ANN. § 161.001(1)(O); see TEX. FAM. CODE ANN. § 263.106 

(West Supp. 2012) (requiring trial court to incorporate service plan into orders of 

court); In re S.A.P., 169 S.W.3d 685, 705–06 (Tex. App.—Waco 2005, no pet.) 

(finding insufficient evidence to support termination pursuant to section 

161.001(1)(O) when no court order establishing actions necessary for child’s 

return was in evidence and only service plan in evidence failed to indicate that it 

was court-ordered).

5 TEX. FAM. CODE ANN. § 161.001(1)(P) (West Supp. 2012); cf. In re J.K.F., 345 

S.W.3d 706, 711 (Tex. App.—Dallas 2011, no pet.) (holding that relevant time 

frame for determining whether there is clear and convincing evidence of 

endangerment to child is before child was removed); In re Cochran, 151 S.W.3d 

275, 280 (Tex. App.—Texarkana 2004) (holding that conduct occurring prior to 

conception could not, without showing of current conditions or actions that would 

constitute danger to child’s health or safety, support finding that parent committed

acts or omissions that posed danger to child).
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remand to the trial court so that new counsel may be appointed to brief the 

issues.”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (“If 

grounds are deemed arguable, the Court of Appeals then must abate the appeal and 

remand the case to the trial court with orders to appoint other counsel to present 

those and any other grounds that might support the appeal.”). 

An appeal from a judgment terminating parental rights is an accelerated 

appeal, which this Court should dispose of “within 180 days of the date the notice 

of appeal is filed.” TEX. R. JUD. ADMIN. 6.2; see TEX. FAM. CODE ANN. 

§§ 109.002(a), 263.405(a) (West Supp. 2012). Accordingly, no extensions of time 

will be granted absent extraordinary circumstances. See TEX. R. APP. P. 

38.6(d) (providing that decision on motions to extend time to file briefs is 

discretionary and allowing court to shorten time for filing briefs). Counsel who 

agrees to handle this appeal should do so only if he or she can satisfy the deadlines 

set herein. Counsel for the Department of Family and Protective Services is also 

advised that he or she should not seek an extension absent good cause, and any 

extension will be very short.

We further order that a supplemental clerk’s record be filed with this court 

containing the name, address, and state bar number of the new counsel appointed. 

We grant W.G’s appointed counsel’s motion to withdraw. 
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The appeal is abated, treated as a closed case, and removed from this Court’s 

active docket. The appeal will be reinstated on this Court’s active docket when the 

appellant’s brief is filed in this Court.

It is so ordered.

Judge’s signature: /s/ Harvey Brown

 

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Date: January 31, 2013