Opinion
14-23-00499-CV
01-10-2024
IN THE INTEREST OF A.A.D., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2022-00951J
Panel consists of Justices Hassan, Poissant, and Wilson.
ABATEMENT ORDER
PER CURIAM
Appellant Mother is currently represented on appeal by appointed counsel, Sara Bloome. Bloome was also Mother's appointed counsel at the trial court.
A court of appeals must not affirm or reverse a judgment or dismiss an appeal if the trial court's erroneous actions prevents the proper presentation of the case to the appellate court. Tex.R.App.P. 44.4. Furthermore, "[t]he court of appeals may make any other appropriate order that the law and the nature of the case require." Tex.R.App.P. 43.6.
"The appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal." McCoy v. Ct. of Appeals of Wis. Dist. 1, 486 U.S. 429, 438 (1988); Sam v. Texas, 467 S.W.3d 685, 688 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd). The effectiveness of trial counsel is one of the issues that must be researched and analyzed on appeal. Sam, 467 S.W.3d at 688; see In re D.T., 625 S.W.3d 62, 73 (Tex. 2021) ("We hold that a parent who responds in opposition to a government-initiated suit seeking termination of the parent-child relationship may assert a claim for ineffective assistance of counsel on appeal regardless of whether the parent's counsel was appointed or retained."); see also In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) ("We hold that the statutory right to counsel in parental-rights termination cases embodies the right to effective counsel."). Appellate counsel may have bias and prejudice in evaluating her own performance at trial. See McCoy, 486 U.S. at 433 n.4; Sam, 467 S.W.3d at 688. "Moreover, trial counsel who does not understand the law or who improperly failed to develop the facts during trial may not recognize the same as an error on appeal." Sam, 467 S.W.3d at 688. Thus, under the facts of this case, we conclude it was error for the trial court to fail to appoint different counsel on appeal for Mother and that this erroneous action has prevented the proper presentation of the case to this Court. See Tex.R.App.P. 44.4
The trial court must appoint counsel to an indigent parent in a termination suit. See Tex. Fam. Code Ann. § 107.013(a)(1). The appointment continues until the earlier of: (1) the date the termination suit is dismissed; (2) the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or (3) the date the attorney is relieved of the attorney's duties or replaced by another attorney after a finding of good cause is rendered by the court on the record. Id. § 107.106(2); see also In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam) ("Once appointed by the trial court, counsel should be permitted to withdraw only for good cause and on appropriate terms and conditions. Mere dissatisfaction of counsel or client with each other is not good cause."). It is undisputed that Mother is indigent, that Bloome was appointed by the trial court, and that Bloome is appointed counsel representing Mother on appeal.
Therefore, we strike Mother's brief, abate this case, and order the trial court to appoint of new appellate counsel for appellant. In light of the expedited nature of this appeal, the trial court is directed to appoint new appellate counsel and have a supplemental clerk's record containing that appointment filed with the clerk of this court within seven (7) days of the date of this order. Newly appointed appellate counsel is ordered to file a brief within twenty (20) days of appointment.
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 supplemental clerk's record is filed with this court.