Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00153-CV

IN THE INTEREST OF A.L.H. and G.F.H.

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2016PA01945

Honorable Charles E. Montemayor, Associate Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: August 15, 2018

AFFIRMED IN PART; ABATED IN PART

The Texas Department of Family and Protective Services sought to terminate both 

Appellant Mother’s and Appellant Father’s parental rights to their three children. This appeal 

involves only their two oldest children, A.L.H. and G.F.H. Their other child, G.N.H., although 

included in the same hearings with A.L.H. and G.F.H., is the subject of a separate appeal, Appeal 

No. 04-18-00154-CV. 

When the underlying case was called to trial on January 5, 2018, in attendance were 

Appellant Father (by phone due to his incarceration), Appellant Father’s attorney, the 

Department’s attorney, and the ad litem for the children. The trial judge noted that the case had 

been set multiple times and that it had been pending close to eighteen months. The trial judge also 

noted that neither Appellant Mother nor her attorney was present. The trial judge stated, “We are 
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going forward today.” However, due to the absence of Appellant Mother and her counsel, the trial 

judge stated that if counsel for Appellant Mother later filed a motion for new trial, along with 

Appellant Mother’s affidavit, the new trial would be granted. Otherwise, according to the trial 

judge, he would “consider it a waiver of everything, and the judgment, whatever the evidence 

supports, will stand.” A review of the record shows Appellant Mother’s attorney did not file a 

motion for new trial. 

The trial judge then heard evidence from Appellant Father, the Department caseworker, a 

psychologist who conducted a psychological exam of both Appellant Mother and Appellant Father, 

the CASA volunteer assigned to the case, and Appellant Mother’s aunt. The record shows that 

Appellant Mother arrived at the hearing about an hour and a half after it began and was called to 

testify by the State. However, her attorney did not make an appearance at any point that day.

At the close of the testimony, the trial judge terminated Appellant Father’s parental rights 

and entered an interlocutory order to that effect. As to Appellant Mother, the trial judge reiterated 

that Appellant Mother’s attorney was not present and Appellant Mother had made an appearance 

an hour and a half after the proceedings had begun. The trial judge then stated,

I’ll, once again, make a provision. I’ll make an exception for this. And I’m going 

to say that though we have begun trial as to the mother, she has testified here today, 

[and] she’s participated here today. I do understand that she is without counsel, and 

the Court will accommodate that. 

The trial judge then appointed co-counsel to work with the counsel already appointed and 

announced a recess as to Appellant Mother. The trial judge stated Appellant Mother’s trial would 

continue on March 2, 2018.

On March 2, 2018, Appellant Mother’s trial proceeded. The trial judge noted he had 

previously signed an interlocutory order of termination as to Appellant Father. The trial judge then 

stated, 
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I’m going to incorporate all testimony of the January 5, 2018 hearing into today’s 

hearing by court order, taking judicial notice of it and incorporating. My 

understanding is Appellant Mother was not present at the January 5th [hearing]. 

She arrived late. [Appellant Mother’s attorney] had some medical issues and was 

not present on January 5th.

The Department’s attorney then stated he would call Appellant Mother as a witness but 

because she was not present, he rested his case without presenting further testimony. The 

children’s ad litem called the CASA volunteer to testify. Appellant Mother’s attorney called 

Appellant Mother’s aunt to testify. In her closing argument, Appellant Mother’s attorney argued 

against termination, but admitted that she did not know what evidence had been presented 

regarding her client: “I was not present at the last hearing so I don’t know if there was evidence 

given that she did participate in services.” The trial judge again stated he was incorporating the 

entire testimony from the January 5, 2018 hearing and ordered termination of Appellant Mother’s 

parental rights. Appellant Mother and Appellant Father appealed. 

ANDERS V. CALIFORNIA

Both court-appointed counsel for Appellant Father and Appellant Mother have filed briefs 

pursuant to Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 

WL 21157944, at *4 (Tex. App.—San Antonio 2003, order) (applying Anders procedure in appeal 

from order terminating parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San 

Antonio 2003, no pet.). Both counsel have concluded that a thorough review of the record reveals 

that the appeals for their respective clients are frivolous and without merit. See Anders, 386 U.S. 

at 744; In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). When we 

receive an Anders brief from an appellant’s appointed 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. We also consider any pro se response. 

See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005); Johnson v. Dep’t of Family 
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& Protective Servs., No. 01-08-00749-CV, 2010 WL 5186806, at *1 (Tex. App.—Houston [1st 

Dist.] 2010, no pet.). If, after reviewing the entire record, we find any arguable grounds for appeal, 

we 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 appeal. See Anders, 386 U.S. at 744 

(“[I]f [an appellate court] finds any of the legal points arguable on the merits (and therefore not 

frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the 

appeal.”). 

APPELLANT FATHER’S APPEAL

Appellant Father’s appointed counsel filed an Anders brief that contains a professional 

evaluation of the record and demonstrates that there are no arguable grounds to be advanced. 

Appellant Father’s counsel concluded that the appeal of the termination of Appellant Father’s 

parental rights is frivolous and without merit. The brief meets the requirements of Anders v. 

California, 386 U.S. 738 (1967). Appellant Father was provided a copy of his counsel’s brief and 

motion to withdraw, and was informed of his right to review the record and file his own brief. In 

addition, counsel advised Appellant Father to file a motion in this court if he wished to review the 

appellate record and enclosed a form motion for that purpose. See Kelly v. State, 436 S.W.3d 313, 

320 (Tex. Crim. App. 2014); In re R.R., 2003 WL 21157944, at *4. This court then set a deadline 

for Appellant Father to file his pro se brief. Appellant Father did not request access to the record 

or file a pro se brief. We have reviewed the record and the Anders brief filed by Appellant Father’s 

counsel. We agree that this appeal as to Appellant Father is without merit. Accordingly, we grant 

the motion to withdraw filed by Appellant Father’s counsel and affirm the trial court’s order 

terminating Appellant Father’s parental rights. 
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APPELLANT MOTHER’S APPEAL

In Appellant Mother’s appeal, her appointed counsel first filed a brief contending the 

evidence was legally and factually insufficient to support the trial court’s finding that termination 

of Appellant Mother’s parental rights was in the best interest of the child. Because appointed 

counsel had inadequately briefed the issue presented, this court ordered counsel to file an amended 

brief on Appellant Mother’s behalf. In so ordering, this court explained the brief filed by counsel 

was deficient in three ways:

1. It does not contain any case-specific arguments or contentions that examine 

how the law applies to the evidence in this case. The “Statement of the 

Facts” section contains a detailed recitation of all of the evidence that the 

Department relied on at trial, but the “Argument” section does not provide 

any contentions or arguments as to why that evidence is legally or factually 

insufficient.

2. The “Argument” section contains no citations to the record.

3. The “Summary of the Argument” merely reiterates the issue statement.

We also noted that if Appellant Mother’s attorney is “unable to make good-faith arguments and 

contentions in support of the sole issue on appeal, he is hereby reminded of the procedures for 

filing a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).”

In response, Appellant Mother’s attorney filed an Anders brief, stating he “has diligently 

reviewed the record and cannot find any point of error upon which a non-frivolous appeal might 

be based.” We have reviewed the record and conclude that it contains at least one arguable issue 

for appeal. Given the absence of Appellant Mother’s court-appointed attorney at the first day of 

trial, we conclude there is at least an arguable issue for appeal relating to the right to counsel and 

ineffective assistance of counsel. Therefore, we abate Appellant Mother’s appeal, grant her 

counsel’s motion to withdraw, and order the trial court to appoint new appellate counsel for 
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Appellant Mother within ten days. After new appellate counsel has been appointed, we will notify 

the parties of the briefing schedule for Appellant Mother’s appeal.

CONCLUSION

As to Appellant Father, we affirm the trial court’s order terminating his parental rights. 

With regard to Appellant Mother, we abate her appeal for appointment of new appellate counsel.

Karen Angelini, Justice