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                                   MEMORANDUM OPINION

                                           No. 04-10-00353-CV

                                  IN THE INTEREST OF J.J.H., et al.

                       From the 150th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2009-PA-02104
                               Honorable Richard Garcia, Judge Presiding

PER CURIAM

Sitting:           Sandee Bryan Marion, Justice
                   Phylis J. Speedlin, Justice
                   Rebecca Simmons, Justice

Delivered and Filed: August 4, 2010

DISMISSED

           In an order dated April 15, 2010, the trial court terminated appellant’s parental rights.

Appellant timely filed a Motion for New Trial and Statement of Appellate Points. See TEX . FAM .

CODE ANN . § 263.405(b), (c) (Vernon Supp. 2005); TEX . R. APP . P. 20, 26.1. On May 5, 2010,

appellant filed his notice of appeal. On May 12, 2010, the trial court granted appellant’s motion for

new trial and, on that same day, signed an Agreed Order of Termination.

           After the clerk’s record was filed with this court, the Clerk of this court attempted to contact

appellant’s attorney to determine, in light of the above circumstances, whether appellant wished to

continue to prosecute his appeal. However, appellant’s counsel did not respond. Accordingly,

because appellant’s parental rights were terminated, after the granting of a new trial, we treated the
                                                                                    04-10-00353-CV




motion for new trial as prematurely filed. Because the clerk’s record contained no finding of

whether appellant’s Statement of Appellate Points were frivolous and no finding as to whether

appellant is indigent, on June 24, 2010, we abated this appeal and remanded the cause to the trial

court to hold a hearing in accordance with Family Code section 263.405(d) on whether appellant’s

appeal is frivolous and whether appellant is indigent and to make written findings and conclusions

on the issues. On July 12, 2010, appellant’s attorney filed a Motion to Withdraw Appeal asking that

the appeal be withdrawn based upon the trial court’s granting of appellant’s motion for new trial.

       We grant the motion and dismiss the appeal. See TEX . R. APP . P. 42.1(a)(1). Our June 24,

2010 order of abatement is hereby withdrawn.

                                         PER CURIAM




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