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In re D.A.M.

Court of Appeals of Texas, Fourth District, San Antonio

December 11, 2013

IN THE INTEREST OF D.A.M., et al., Children

From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2012-PA-01733 Honorable Charles E. Montemayor, Judge Presiding

Sitting: Catherine Stone, Chief Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

MEMORANDUM OPINION

Catherine Stone, Chief Justice

This is an appeal from the trial court's order terminating appellants' parental rights to D.A.M, D.A.M., and D.A.M. Appellants are the mother and one of the alleged fathers of the children. The court-appointed appellate attorney for each of the appellants has filed a brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. Each of the attorneys concludes that the appeal for his respective client is frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at * 4 (Tex. App.—San Antonio May 21, 2003, no pet.) (applying Anders procedure in appeal from termination of parental rights) (mem. op.); see also In re K.M., 98 S.W.3d 774, 775 (Tex. App.—Fort Worth 2003, order) (same). Each of the attorneys certified that a copy of the brief was delivered to his respective client. The record establishes that appellants were advised of their right to examine the record and to file a pro se brief.

Pro Se Briefs

The alleged father did not file a pro se brief; however the mother has filed a pro se brief. Most of the statements made in the mother's pro se brief are not supported by the appellate record. In addition, documents are attached to the brief which also are not contained in the record. This court is not permitted to consider matters outside the appellate record. Fox v. Wardy, 234 S.W.3d 30, 33 (Tex. App.—El Paso 2007, pet. dism'd w.o.j.); In re A.D.A., 287 S.W.3d 382, 389 (Tex. App.—Texarkana 2009, no pet.); In re Estate of Bendtsen, 230 S.W.3d 823, 830 (Tex. App.— Dallas 2007, pet. denied).

A. Mother's Absence from Trial

The mother initially contends that she was not informed of the trial date. The older child was removed by the Department in July of 2012, and the younger children, who are twins, were removed after their premature birth in September of 2012. In September, a status hearing and pretrial conference was held, and the case was set for a nonjury trial on May 23, 2013. The trial was subsequently reset to July 29, 2013. Although the mother's attorney announced not ready on July 29, 2013, no motion for continuance was filed, and no additional statements were made by the attorney in support of the "not ready" announcement. Moreover, Amy Howell, who had been the caseworker since September of 2012, testified as follows:

Q. Okay. [Did] you have any contact with her [the mother] recently to let her know about this hearing?
A. Yes. Well, we had our last parent/child visit I believe it was July 3rd.
Q. Okay. And did she say anything to you about what she was planning to do in this lawsuit?
A. No. I just told her that we were still planning on terminating her parental rights, and she was aware of that.

After ascertaining that the mother and the alleged fathers had been properly served, the trial court stated its reasons for proceeding with the trial as follows:

Given the circumstances and this case has been pending a while, and I think I reset it once before from a May setting, and there being no extraordinary circumstances that would warrant delay to three very, very young children the Court's ...

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