in the Interest of L. Z., M. H. and N. U., Children v. Department of Family and Protective Services

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In the Interest of L. Z., M. H. and N. U., Children
Appellate case number: 01-19-00061-CV
Trial court case number: 2017-06000J
Trial court: 314th District Court of Harris County
This is an appeal from a final decree terminating parental rights. Appeals from orders
terminating the parent-child relationship are to be brought to final disposition within 180 days of
the date the notice of appeal is filed. See TEX. R. JUD. ADMIN. 6.2(a), reprinted in TEX. GOV’T
CODE, tit. 2, subtit. F app. The notice of appeal in this case was filed on January 22, 2019, and
thus, the date of final disposition was July 19, 2019.
Appellant’s brief was originally due on March 18, 2019. No brief was filed and no motion
for extension was filed. On April 25, 2019, this Court abated the appeal and remanded to the trial
court for a hearing to determine why no brief had been filed. On May 7, 2019, a hearing record
was filed that indicated that neither appellant nor her retained counsel, Donnica Blackful, had
attended the hearing. The trial court stated that no findings could be made because counsel Blackful
had not appeared.
On May 16, 2019, this Court issued a second order, directing the trial court to make the
findings as requested concerning counsel Blackful’s failure to make arrangements for the filing of
a complete record and to file a brief. The trial court issued an order on the same date, setting
another hearing and ordering counsel Blackful to show cause why she sould not be found to have
abandoned appellant and removed as counsel for appellant. On May 23, 2019, the trial court’s
hearing record was filed, showing that counsel Blackful again failed to appear. The trial court
determined that Blackful had abandoned appellant, and despite having no information concerning
indigence of appellant, appointed counsel Donald Crane.
On June 27, 2019, the Court reinstated the appeal on the active docket and ordered
appellant to file the attached Statement of Inability to Afford Court Costs on Appeal so that the
missing portion of the reporter’s record might be obtained at no cost to appellant. On July 9, 2019,
appointed counsel Crane advised the Court that previous counsel Blackful had again been retained
by counsel and that appellant allegedly now had the funds to pay Blackful.
Counsel Blackful has not responded to deadlines in this Court and did not appear in the
trial court to explain her lack of diligence in representing appellant. Rather than communicate with
the Court, counsel Blackful has failed to comply with deadlines in this appeal and has caused
delays that prevented this Court from disposing of this appeal within the required 180-day period.
Now, after the trial court found that counsel Blackful had abandoned the appellant and appointed
new counsel, counsel Blackful has filed a notice of appearance.
If an appellant fails to file a brief, the Court has several options. In criminal cases, an
appellate court may not dismiss for want of prosecution and so it may initiate contempt
proceedings against appellant’s counsel. See TEX. R. APP. P. 38.8(b)(4). Although this is not a
criminal case, it is a parental termination appeal that involves constitutional rights and it may be
appropriate to apply this rule when counsel fails to file a brief. See M.U. v. Tex. Dept. of Family &
Protective Svcs., No. 03-13-00655-CV, 2014 WL 1018139, at *1 (Tex. App.—Austin Mar. 13,
2014, no pet.) (court issued show cause order requiring appointed counsel in parental termination
appeal to appear and explain why he should not be held in contempt for failing to file a brief by
deadline). Another option in criminal cases, is to determine the appeal without briefs. See id.
Finally, in civil cases, and as other appellate courts have done, we may dismiss the appeal for want
of prosecution. See TEX. R. APP. P. 42.3.
In this case, the Court is unable to determine the appeal without briefs because a complete
reporter’s record has not been filed. The deputy court reporter, Shannon Simmons, filed four
volumes that are all pretrial hearing records. No reporter’s record of the termination hearing held
on December 13, 2019 has been filed. The order of termination states that the record of this trial
was recorded by court reporter Julia Rangel. We are unable to determine from the record whether
appellant requested or paid for this reporter’s record of the termination trial, but if the appellant is
at fault for the failure to file the complete record, the rules permit this Court to dismiss the appeal
for want of prosecution. See TEX. R. APP. P. 37.3(b).
Accordingly, we order appellant to cause the complete record to be filed within 20 days
of the date of this order. Appellant’s brief must be filed within 20 days of the date the
reporter’s record is filed. If no record of the termination hearing is filed or if no brief is
received, the Court may issue a show cause order or dismiss this appeal immediately for lack
of prosecution. See M.U., 2014 WL 1018139, at *1 (issuing show cause order to counsel to explain
why he should not be held in contempt for failure to file brief); TEX. R. APP. P. 38.8(b)(4), 42.3
(permitting the Court to pursue contempt proceedings or dismiss an appeal for lack of prosecution);
Herrin v. Dept. of Family & Protective Svcs., 01-09-00950-CV, 01-09-00960-CV, 2011 WL
684199, at *1 (Tex. App.—Houston [1st Dist.] Feb. 17, 2011, no pet.) (dismissing appeals for want
of prosecution because additional extensions of time “would be incompatible with the state’s goal
to prevent delay in resolving parental rights cases where the best interests of children are at
stake.”).
It is so ORDERED.
Judge’s signature: ____/s/ Richard Hightower___
 Acting individually  Acting for the Court
Date: __July 26, 2019___