                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-16-00410-CV


                           IN THE INTEREST OF X.H., A CHILD


                            On Appeal from the 140th District Court
                                     Lubbock County, Texas
               Trial Court No. 2015-515,369, Honorable Jim Bob Darnell, Presiding

                                      February 6, 2017

                             ABATEMENT AND REMAND
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       In this appeal, the mother of X.H.1 challenges the trial court’s order terminating

her parental rights. Appellee is the Texas Department of Family and Protective

Services.


       On January 25, 2017, the mother’s court-appointed appellate counsel filed an

Anders2 brief and a copy of a letter from counsel to the mother. According to the letter,


       1
         To protect the child’s privacy, we will refer to the parent as “the mother” and the
child by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P.
9.8(b).
       2
           Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
counsel provided the mother a copy of her brief and the record and notified the mother

of her right to file a pro se response to counsel’s brief. In her brief, counsel discussed

potential appellate issues but concluded no arguable error was shown.


      Pursuant to our obligations when appointed counsel files an Anders brief, we

have reviewed the appellate record brought forward. See In re P.M., No. 15-0171, 2016

Tex. LEXIS 236, at *8, n.10 (Tex. Apr. 1, 2016) (per curiam) (application of Anders

procedures in parental-rights termination cases, citing In re D.A.S., 973 S.W.2d 296,

297 (Tex. 1998)); In re A.W.T., 61 S.W.3d 87, 88-89 (Tex. App.—Amarillo 2001, no pet.)

(per curiam) (termination case); see also In re Schulman, 252 S.W.3d 403, 407 (Tex.

Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); High

v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).         After doing so, we are not yet

satisfied that the appeal is wholly frivolous.   See In re D.A.S., 973 S.W.2d at 297

(Anders analysis “assists the appellate court in determining whether the appeal is

indeed wholly frivolous”); High, 573 S.W.2d at 811 (“in the last analysis, it is up to the

court, not counsel, ‘after a full examination of all proceedings, to decide whether the

case is wholly frivolous’”) (quoting Anders, 386 U.S. at 744); see also Penson v. Ohio,

488 U.S. 75, 82, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (Anders brief serves valuable

purpose of assisting court in determining both that counsel has conducted the required

detailed review of case and that “appeal is indeed so frivolous that it may be decided

without an adversary presentation”). The record reveals a matter, not mentioned in

counsel’s Anders brief, on which we require further briefing.


      After the associate judge signed an order terminating her parental rights, the

mother requested a de novo hearing before the referring district court. TEX. FAM. CODE

                                            2
ANN. § 201.2042 (West 2014).3 When the district court convened its de novo hearing,

the proceeding began with the court asking counsel for the Department if she had

“additional evidence to present.” Counsel stated she had no additional evidence and

requested a ruling based on “the review of the transcript that has been provided to the

Court . . . .”   The mother’s counsel requested that the Department be required to

present its case for termination anew. Counsel expressed her client’s desire that the

Department “have to proceed in presenting all the evidence against her to prove to this

Court by clear and convincing evidence” that termination was proper.             Counsel

continued, “So we would ask that the Department start this hearing by calling its first

witness to proceed as if we were starting over.”


       The court responded:

       The Court will deny that request. The Court has notified the attorneys that
       the Court would allow any additional evidence or testimony to be
       presented after--at this point in time because the Court has reviewed the
       transcripts. And the Court is of the opinion that it’s not necessary to hear
       the evidence over again.

       The mother then presented the brief testimony of two witnesses.          Following

argument, the court rendered judgment “affirm[ing]” the associate judge’s termination of

the mother’s parental rights.


       Counsel has indicated a desire to withdraw from her representation of the mother

in this appeal. Finding good cause, we grant counsel’s request; she is relieved of her




       3
        In her written request for a de novo hearing the mother specified the issues to
be presented to the referring court. See TEX. FAM. CODE ANN. § 201.015(b). She
challenged each of the statutory predicate findings for termination made by the
associate judge as well as his best interest finding.

                                            3
duties. See TEX. FAM. CODE ANN. § 107.016(2) (West 2014);4 see also Stafford, 813

S.W.2d at 511 (“if the Court of Appeals does find that there are arguable grounds, the

appellate court must then guarantee appellant’s right to counsel by ensuring that

another attorney is appointed to represent appellant on appeal” (emphasis in original)).


      We abate the appeal and remand the cause to the 140th District Court of

Lubbock County. On remand, the district court shall appoint new counsel to represent

the mother in this appeal. See In re P.M., 2016 Tex. LEXIS 236, at *8 (“An appellate

court must ordinarily refer the matter of appointment of replacement counsel to the trial

court”). The district court shall cause the name, email and postal addresses, telephone

number, and state bar number of the newly-appointed counsel to be included in a

supplemental record. The record of that appointment shall be filed with the Clerk of this

Court on or before February 17, 2017.


      Additionally, the district court shall order the newly-appointed counsel to file an

appellant’s brief, according to the Texas Rules of Appellate Procedure, addressing the

issue whether the mother was denied a proper de novo hearing before the referring

district court,5 and addressing any other arguably meritorious ground counsel sees for


      4
         Counsel’s request that she be allowed to withdraw from her representation of
the mother was included in her prayer for relief in the Anders brief. She did not file a
motion to withdraw. We disapprove of this procedure. Counsel filing an Anders brief in
a parental rights termination case should file a motion to withdraw, just as in a criminal
case. See In re Schulman, 252 S.W.3d at 404, 407-08. The court will determine the
disposition to be made of the motion to withdraw. As the court noted in In re P.M., 2016
Tex. LEXIS 236, at *8, an “Anders motion to withdraw” filed in the court of appeals may
be premature. In this case, the motion would not have been premature, and would have
been granted.
      5
      By way of example only and not as a limitation on counsel’s briefing, counsel
may want to consider whether authorities such as AG v. Orr, 989 S.W.2d 464, 467-468

                                            4
reversal or modification of the district court’s judgment. If counsel contends the court

erred in any respect, counsel shall address the subject of harm.


       Absent a request for extension from newly-appointed counsel, the mother’s brief

shall be filed no later than twenty days from the date of newly-appointed counsel’s

appointment. A response brief may be filed by the Department within twenty days after

the filing of the mother’s brief.6


       It is so ordered.


                                                        Per Curiam




(Tex. App.—Austin 1999, no pet.); Woodard v. Office of the AG of Tex., No. 01-07-
00954-CV, 2009 Tex. App. LEXIS 2090, at *5 (Tex. App.—Houston [1st Dist.] Mar. 26,
2009, no pet.) (mem. op.); and 22-360A William V. Dorsaneo III, Larry L. Martin, and
Nicholas V. Rothschild, TEXAS LITIGATION GUIDE § 360A.10[4][b] (Lexis 2016) describe
the correct de novo hearing procedure before a referring court in a child protection case.
       6
          The notice of appeal in this case was filed November 4, 2016. See In re L.S.,
No. 02-16-00197-CV, 2016 Tex. App. LEXIS 10027, at *1 (Tex. App.—Fort Worth Sept.
8, 2016, no pet.) (mem. op.) (referring to appeals such as this as “ultra-accelerated,”
citing TEX. R. JUD. ADMIN. 6.2(a) (“In an appeal of a suit for termination of the parent-
child relationship . . . appellate courts should, so far as reasonably possible, ensure that
the appeal is brought to final disposition” within 180 days after the notice of appeal is
filed)). Extensions of time cannot be liberally granted.



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