in the Interest of C. J. a Child v. Department of Family and Protective Services ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF CONTINUING ABATEMENT
Appellate case name: In the Interest of C.J., a Child
Appellate case number: 01-19-00704-CV
Trial court case number: 2018-00169J
Trial court: 313th District Court of Harris County
This is an accelerated appeal from an order terminating the parental rights of appellant,
S.W. On September 18, 2019, retained counsel filed, on behalf of appellant, a notice of appeal of
the trial court’s September 5, 2019 “Final Decree for Termination.” See TEX. R. APP. P. 25.1,
26.1(b), 28.4. The appellate record was due in this Court on September 30, 2019. See id. 4.1(a),
28.4, 35.1(b). A clerk’s record was filed on October 1, 2019; however, a reporter’s record has not
been filed.
On October 2, 2019, the court reporter notified the Clerk of this Court that appellant had
not requested a reporter’s record and had not “paid or made arrangements to pay for the record and
[was] not appealing as an indigent.” See id. 35.3(b). On October 2, 2019, the Clerk of this Court
notified appellant that the court reporter responsible for preparing the reporter’s record had
informed the Court that appellant had not requested a reporter’s record or had not paid, or made
arrangements to pay, for the reporter’s record. See id. 37.3(c). The Clerk further notified appellant
that unless she provided written evidence that she had paid, or made arrangements to pay, for the
reporter’s record, or provided proof that she is entitled to proceed without payment of costs by
October 14, 2019, the Court might consider the appeal without a reporter’s record. See id.
On November 4, 2019, the court reporter notified the Clerk of this Court that appellant had
not requested a reporter’s record. However, the court reporter also provided this Court with a
motion to withdraw filed in the trial court by appellant’s retained counsel. In the motion to
withdraw, retained counsel asserted that appellant “is indigent and c[ould] no longer afford
retained counsel.” The motion also stated that appellant “request[ed] a court appointed counsel to
perfect her appeal.” A notice of hearing attached to retained counsel’s motion indicated that a
hearing was to be held on counsel’s motion to withdraw and appellant’s request for appointment
of counsel on November 7, 2019.
On November 14, 2019, the Court abated this appeal and remanded the case to the trial
court to immediately hold a hearing on retained counsel’s motion to withdraw. We directed the
trial court that, if retained counsel was permitted to withdraw, to determine whether appellant is
indigent, to appoint new counsel to represent appellant if she is indigent, or to determine whether
appellant may proceed pro se, after advising her of the dangers of self-representation. We also
directed the trial court to have a court reporter, or court recorder, record the hearing. And if the
trial court held a hearing on November 7, 2019 and addressed all of the indigency-related matters
fully, with a record, then we notified the trial court that an additional hearing was not required.
This Court further ordered the trial court clerk to file a supplemental clerk’s record
containing any written findings of fact and conclusions of law regarding the indigency-related
issues as well as any orders permitting retained counsel to withdraw, determining if appellant is
indigent, appointing new counsel, or allowing appellant to proceed pro se. And we ordered the
court reporter to file a reporter’s record of the hearing. The records were to be filed with the Clerk
of this Court no later than 14 days from the date of this Court’s abatement order.
On November 25, 2019, the court reporter filed a reporter’s record of the trial court’s
November 7, 2019 indigency hearing; however, the reporter’s record does not indicate whether
retained counsel was permitted to withdraw, whether the trial court determined that appellant is
indigent, whether appellant was appointed new counsel, or whether appellant was proceeding pro
se. We have not received a supplement clerk’s record.
Thus, we again order the trial court clerk to file a supplemental clerk’s record containing
any written findings of fact and conclusions of law regarding these issues as well as any orders
permitting retained counsel to withdraw, determining if appellant is indigent, appointing new
counsel, or allowing appellant to proceed pro se. To the extent necessary, we direct the trial court
to ensure that the supplemental clerk’s record is timely filed. See id. 35.3(c). The supplemental
clerk’s record shall be filed with the Clerk of this Court no later than 7 days from the date
of this order.
Because this appeal involves the termination of the parent-child relationship, the Court is
required to bring appellant’s appeal to final disposition within 180 days of September 18, 2019,
the date the notice of appeal was filed in this proceeding, so far as reasonably possible. See TEX.
R. JUD. ADMIN. 6.2, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app.
The appeal remains 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 supplemental clerk’s
record is filed with the Clerk of this Court.
It is so ORDERED.
Judge’s signature: _____/s/ Julie Countiss____
 Acting individually  Acting for the Court
Date: ___December 3, 2019____
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