in the Interest of J.C., a Child

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00042-CV
IN THE INTEREST OF J.C., A CHILD
On Appeal from the 71st District Court
Harrison County, Texas
Trial Court No. 21-0471
Before Morriss, C.J., Stevens and van Cleef, JJ.
ORDER
On June 15, 2022, the trial court entered an order that terminated the parent-child
relationship between J.C. and his mother pursuant to statutory grounds E, N, O, and P. See TEX.
FAM. CODE ANN. § 161.001(b)(1)(E), (N), (O), (P). Mother’s original appellate counsel filed a
brief that summarized the record, reviewed the trial court proceedings, and concluded that there
were no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738,
743–44 (1967); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); see also In re
P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (recognizing that Anders procedures apply in
parental-rights termination cases).
Under Anders, we are required to review the record and make an independent
determination of whether there are arguable grounds for appeal. Stafford, 813 S.W.2d at 511.
Our independent review of the record in this case showed that Mother was appointed counsel on
May 12, 2021. Then, on February 24, 2022, the trial court entered a sua sponte order and
discharged Mother’s appointed counsel, purportedly because Mother had not participated in the
case1 and the trial court determined that the appointment of counsel for Mother was no longer
1
The record shows that Mother participated in the family group conference that resulted in Mother’s family service
plan, participated in visitation with J.C., attended some parenting classes, and submitted to some court-ordered,
random drug tests.
2
necessary.2 Mother apparently was without counsel until the trial court appointed her new
counsel on May 9, 2022, three days before the final hearing.3
After conducting our own investigation of the record, we identified at least two arguable
issues that required additional briefing, including (1) whether the trial court denied Mother her
right to counsel by discharging her original appointed counsel4 and (2) whether the trial court
denied Mother her right to effective assistance of counsel by appointing her new counsel without
providing sufficient time for her new counsel to prepare for the hearing.5
On September 28, 2022, we abated this appeal to the trial court for the appointment of
new counsel and instructed new counsel to address these issues, as well as any other issues that
warranted further development. On September 30, 2022, the trial court appointed new appellate
counsel for Mother. On October 18, 2022, Mother’s new counsel filed a brief captioned
“APPELLANT’S Supplemental BRIEF,” which demonstrates that she apparently misunderstood
our order.6 Rather than filing a new appellate brief that advocated for Mother’s rights, Mother’s
new counsel wrote a brief in apparent support of the original Anders brief.
2
There is no indication in the record that the trial court warned Mother that her non-participation in hearings would
result in the discharge of her appointed counsel before it entered the order. In addition, there is no indication in the
record that Mother was notified of the order discharging her appointed counsel.
3
The record also showed that Mother’s new appointed counsel did not receive any materials related to the case until
the afternoon of the following day.
4
See In re P.M., 520 S.W.3d at 26; TEX. FAM. CODE ANN. §§ 107.013(a)(1), 107.016(2).
5
See TEX. FAM. CODE ANN. § 263.401(b) (Supp.) (authorizing trial court to retain a suit that requests termination of
the parent-child relationship for up to 180 days upon a finding, inter alia, of extraordinary circumstances).
6
For instance, regarding the first issue, new counsel set forth reasons that sought to justify the actions of the trial
court, without advancing any arguments in favor of Mother. Also, rather than addressing the issue of whether the
trial court’s acts or omissions denied Mother effective assistance of counsel, new counsel sought to show that trial
counsel’s acts or omissions did not amount to ineffective assistance of counsel.
3
“When we identify issues that counsel on appeal should have addressed but did not, we
need 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, order). In such a situation, we “must then guarantee appellant’s
right to counsel by ensuring that another attorney is appointed to represent appellant on appeal.”
Stafford, 813 S.W.2d at 511 (citing Anders, 386 U.S. at 744).
Because new counsel did not adequately address the issues we identified, we strike the
supplemental brief and abate this case to the trial court a second time for the appointment of new
appellate counsel. The appointment is to be made within five days of the date of this order. A
memorialization of the trial court’s appointment shall be entered into the record of this case and
presented to this Court in the form of a supplemental clerk’s record within three days of the date
of appointment. Newly appointed appellate counsel should file an appellant’s brief that
addresses the issues presented above, as well as any other issues that warrant further
development on appeal.
All appellate timetables are stayed and will resume on our receipt of the supplemental
clerk’s record. We will establish a new briefing schedule upon the return of this Court’s
jurisdiction over this matter. We admonish, however, that because this case involves an appeal
from the termination of Mother’s parental rights, this matter is to be expedited at all levels.
Newly appointed counsel should be prepared to pursue the appeal without delay or requests for
extensions of time.
4
IT IS SO ORDERED.
BY THE COURT
DATE: October 25, 2022
5