Opinion
NO. 09-11-00191-CV
03-08-2012
IN THE INTEREST OF S.G.E.
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 09-09-09379 CV
MEMORANDUM OPINION
Appellant, the father of the minor child S.G.E., appeals the trial court's parental rights termination order in a suit filed by the child's mother. As required by the applicable rules, the parties will not be referred to by name, and the proceedings will be described as briefly as practicable. See Tex. R. App. P. 9.8, 47.1, 47.4; see also Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2011).
THE TRIAL COURT'S RULING
The termination order provides in part as follows:
The Court finds by clear and convincing evidence that [appellant] has-a. knowingly placed the child in situations that endanger the physical or emotional well-being of the child;b. engaged in conduct that endangers the physical or emotional well-being of the child; andThe Court also finds by clear and convincing evidence that termination of the parent-child relationship between [appellant] and the child the subject of this suit is in the best interest of the child.
c. failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of this petition.
it is therefore ordered that the parent-child relationship between [appellant] and the child the subject of this suit is terminated.
THE TRIAL COURT PROCEEDINGS
Appellee sought to terminate appellant's parental rights on grounds of conduct endangerment, condition endangerment, and lack of support. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (F) (West Supp. 2011). Appellant filed a pro se answer. In the three-day bench trial, the judge heard testimony about appellant's mental health issues, behavior, threats, and failure to support. The judge heard testimony of appellant's prior behavior that had resulted in a restraining order against him. The trial court heard testimony that the child had resided with appellee in Texas for several years, and that appellant had neither visited the child nor provided financial support for the child from February 2009 through March 2010. The trial court heard evidence about appellant's behavior during supervised visitation, and heard testimony from a Child Protective Services employee concerning whether appellant would pose a risk to the child even if future visitations were supervised. Appellant admitted that for one year prior to suit he neither exercised visitation nor sent financial support, and he explained why he did not exercise his visitation.
THE APPEAL
Appellant filed a notice of appeal on April 19, 2011. The Clerk of this Court notified the parties that the case is an accelerated appeal, and that in accelerated appeals the Court does not routinely grant extensions of time. See Tex. Fam. Code Ann. § 109.002(a) (West Supp. 2011) ("The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which termination of the parent-child relationship is in issue."). After the trial court sustained a contest to appellant's affidavit of indigence, appellant twice requested and received additional time to pay for the record. Appellant paid for the trial record.
Appellant did not challenge the trial court's order determining that he was not indigent. He did not file an affidavit of indigency on appeal. This Court extended the time for filing the clerk's record for an additional thirty days and the reporter's record for an additional sixty days. The clerk's record was filed on August 5, 2011, and the reporter's record was filed on September 28, 2011. As authorized by the Family Code in termination cases, the record was sealed by the trial court. See Tex. Fam. Code Ann. § 161.210 (West 2008).
After filing the notice of appeal, appellant was at one point represented by counsel for the appeal. Counsel subsequently filed a motion to withdraw. The attorney explained in the motion that appellant "asked the undersigned attorney to withdraw as his attorney[,]" but explained also that appellee opposed the motion because she was representing herself, and she thought "this is an attempt by Appellant to put her in a position where she has to deal with him directly rather than through an attorney."
This Court granted appellant's request to proceed without an attorney. Appellant's brief was originally due to be filed by october 18, 2011. The Clerk of this Court notified the parties to contact the Clerk to review the record. Appellant did not review the record prior to the due date for his brief.
On November 15, 2011, the Clerk notified appellant that a brief must be filed by December 5, 2011. on December 1, 2011, appellant filed a motion requesting an extension of time until December 27, 2011, to file the brief. The motion was granted with the notation that appellant was being granted a final extension.
Appellant reviewed the record for five days. Appellant filed a motion for additional time to access the record. This Court granted appellant additional time to access the record. The Clerk again informed the appellant that his brief must filed by December 27, 2011. The Clerk informed appellant by letter that if no brief was filed by that date the case would be submitted to the Court without briefs.
Appellant again requested and obtained additional access to the record. He asserted he was dictating notes into a computer. Appellant did not establish that the time for review of the record was unreasonable for the purpose of preparing a brief. Although the Court found that appellant had a reasonable time to review the record to prepare a brief, in the interest of justice the Court granted the request again. Appellant completed his review of the record without utilizing all the additional time. The Court's order of December 13, 2011, again notified appellant that no further extensions would be granted and that his brief was due on December 27, 2011.
On December 16, 2011, a second attorney for appellant filed a motion for another extension of time to file a brief. Counsel asserted that appellant had completed his review of the record, but that counsel would be out of the state from December 17, 2011, through December 27, 2011. Counsel requested an additional thirty-day extension to file a brief for appellant. This Court granted another extension. The Court notified the parties that if no brief was filed by January 26, the case would be under submission to the Court on January 27. The parties were notified that this was the final extension of time that would be granted.
The Court had issued an order stating that because the record was sealed by the trial court, the information contained in the record may not be disclosed by the parties without violating the trial court order sealing the record. On January 5, 2012, the Court notified the parties that after issuing the order, it had come to the attention of the Court that one or more documents designed to appear to be transcriptions, summaries, or notes of the record had been left unattended in a public place or had been distributed to a person other than the parties or their counsel of record, and that appellant was the only party who had accessed the record on appeal. Noting that the rules of appellate procedure provide that the appellate court may dismiss the appeal because the appellant has failed to comply with a court order, the Court provided appellant with an opportunity to explain why the appellant should not be sanctioned because the appellant failed to comply with a court order. Appellant filed his response on January 20, 2012. In the response, appellant admitted that he had left binders containing information obtained from the record, but appellant claimed that he had left the material with an airline official for delivery to appellant's counsel, and appellant argued that his action was reasonable and not in violation of a court order. In his affidavit, appellant also stated that he had "communications" with a newspaper reporter "on a number of occasions beginning September of 2009 and continuing to the present day[,]" and admitted that the "communications" included "providing relevant documentary material regarding the case while it was being litigated" in the trial court. Appellant swore that "the only documents that I gave to the newspaper were provided BEFORE the trial started."
On January 24, 2012, appellant filed a motion to recuse the entire panel. On the same day, appellant filed a motion for continuance that requested a stay of the appeal until the Supreme Court ruled on an anticipated motion and also requested an additional thirty-day extension for filing a brief. None of the challenged justices removed himself from participation in the case. As to each challenged justice the motion to recuse was denied by the remaining justices sitting en banc. See Tex. R. App. P. 16.3; Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, pet. denied). Although appellant explained he was looking for another attorney, no motion to withdraw was filed. The Court denied appellant's motion for a continuance, a stay, and another extension. The Clerk again notified the parties by letter that appellant's brief must be filed by January 26, 2012.
Appellant did not file a brief. The appeal was submitted on January 27, 2012. Appellant filed a petition for writ of mandamus with the Supreme Court on January 27, 2012. The Supreme Court denied the petition on February 3, 2012.
The Clerk notified the parties in writing that "[a]ny party who desires to submit a brief at this time must obtain the permission of the Court by filing a motion for leave to allow late filing of the brief. The brief must be submitted with the motion, and the motion must provide a reasonable explanation for that party's failure to timely file the brief." No post-submission brief was filed by either party. See Tex. R. App. P. 38.8(a).
Appellant filed a post-submission motion: (1) to vacate the trial court's judgment for "structural error"; (2) to order the trial court to provide a supplemental record; (3) to stay the appeal; and (4) to permit access to the record. Although appellant is currently represented by counsel, appellant filed the motion pro se because he says his attorney is "medically disabled."
The first "structural error" that appellant argues is the trial court's failure to appoint an attorney ad litem or an amicus attorney for S.G.E. Appellant argues that the Department was a "de facto party" because a Department employee testified during the trial, and consequently appellant was entitled to a court-appointed attorney. The Department did not intervene in this case. The trial court found that S.G.E.'s mother could adequately represent the child's interests. An appointment would have required a finding that the appointment was necessary to ensure the determination of the best interests of the child. See Tex. Fam. Code Ann. § 107.021(b)(2) (West 2008). Under the circumstances, the trial court's decision to decline to appoint an attorney for the child was a discretionary one and was not a structural error that requires that the judgment be vacated. See Tex. Fam. Code Ann. § 107.021(a). The fact that a Department employee was a witness did not make the Department a party for purposes of requiring appointment of counsel for appellant. See Tex. Fam. Code. Ann. § 107.013 (West Supp. 2011). Furthermore, the trial court did not find that appellant was indigent.
The second alleged "structural error" that appellant argues is the trial court's failure to recuse because the judge was at the time of trial being represented by appellee's counsel. Because the relationship between the judge and the lawyer would not disqualify the judge, no structural error arose. See Tex. R. Civ. P. 18b; Pena v. Pena, 986 S.W.2d 696, 700 (Tex. App.—Corpus Christi 1998), pet. denied, 8 S.W.3d 639 (Tex. 1999). Recusal is a different matter from disqualification, and appellant does not present a record that shows that the trial court failed to follow Rule 18a. See Tex. R. Civ. P. 18a.
Appellant notes that the appellee filed a post-judgment motion to release funds, and suggests that this demonstrates that the trial court and the appellee were aware that he had not failed to support the child. The relevant time period for non-support is "one year ending within six months of the date of the filing of the petition[.]" Tex. Fam. Code Ann. § 161.001(1)(F). Child support payments made after the case commenced would not negate that ground for termination.
Appellant suggests that the clerk's record is incomplete. The trial court took judicial notice of the contents of protective order proceedings that occurred in a case under a different cause number. With a letter request addressed to the trial court clerk, the clerk's record may be supplemented. See Tex. R. App. P. 34.5(c). A late request does not justify further delaying the disposition of this accelerated appeal, however. Appellant does not provide sufficient reasons why the written protective order proceedings in another cause would require setting aside the judgment in this case. Appellant also argues that the trial court did not rule on motions he filed, but he does not state how the motions might relate to his appeal or require a reversal.
Appellant contends continued delay of the appeal would not adversely affect S.G.E. because the trial court's order is currently being enforced. The United States Supreme Court has explained that, because children require secure and stable relationships and because continued uncertainty may be detrimental to a child's sound development, the interest in finality is especially strong in disputes involving child custody. See Lehman v. Lycoming Cnty. Children's Servs. Agency, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Appellant's delay motion is denied.
Appellee filed a motion to dismiss the appeal noting that this is an accelerated appeal and that appellant had failed to file a brief. Generally, appellate courts "are limited to the issues urged and record presented by the parties[.]" In re Columbia Med. Ctr., 290 S.W.3d 204, 211 (Tex. 2009). The Court has reviewed the trial record under submission. Appellant does not present any reporter's record of any proceeding other than the trial itself. This Court granted extensions to file the record and a brief, including two this Court designated as final. See Tex. R. App. P. 38.8, 38.9.
The applicable law in termination proceedings is well-established. See Jordan v. Dossey, 325 S.W.3d 700, 712 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). "Recognizing that a parent may forfeit his or her parental rights by their acts or omissions, the primary focus of a termination suit is protection of the child's best interests." Id. The Legislature has mandated that appeals in termination cases be "accelerated" and "given precedence over other civil cases." See Tex. Fam. Code Ann. § 109.002(a). We also note that recently proposed appellate rules will further assure accelerated disposition of termination cases. See Misc. Docket No. 12-9030 (Tex. Feb. 13, 2012), available at http://www.supreme.courts.state.tx.us/miscdocket/12/12903000.pdf. An appellate court considers the statutory mandate and the rights and interests of both parties and the child. See Tex. Fam. Code Ann. § 109.002(a); Lehman, 458 U.S. at 513; see also Jordan, 325 S.W.3d at 712.
Under the circumstances of this case, further delay in the disposition of this accelerated appeal is not justified. Delay for the purpose of delay alone is not a proper purpose for an appeal. Appellant has had sufficient opportunity to present any alleged errors for appellate review. Despite multiple filings of documents by appellant in this Court and the Supreme Court, no brief addressing the merits of the appeal has been presented.
Normally a court of appeals does not reverse a trial court's judgment in a civil case in the absence of assigned error supported by the record presented by the parties. See In re Columbia Med. Ctr., 290 S.W.3d at 211; San Jacinto River Authority v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990); see also Tex. R. App. P. 47.1 (An opinion is to address "every issue raised and necessary to final disposition of the appeal."); Tex. R. App. P. 38.8(a). The record reviewed by this Court does not support a different procedure or result under the circumstances in this case. Appellant has not presented a brief asserting trial court error for this Court to review. Appellee's motion to dismiss the appeal is therefore granted and the appeal is dismissed. See Tex. R. App. P. 38.8(a).
APPEAL DISMISSED.
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DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.