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
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 court-

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, 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.3 and 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
                                         -5-
         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).
                                           -6-
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.
                                        -7-
       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




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