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In re A.G-V.

Court of Appeals of Texas, Fourth District, San Antonio

April 3, 2018

IN THE INTEREST OF A.G-V., A CHILD,

          From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02802 Honorable Barbara Hanson Nellermoe, Judge Presiding

          ORDER

          Marialyn Barnard, Justice

         Appellant Mother filed her brief on April 2, 2018. To begin, appellant Mother's brief does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. Specifically, the brief violates Texas Rule of Appellate Procedure 38.1 in that it does not contain:

(1) a proper statement of the case;
(2) a proper statement of the issues presented; brief statement of the issues presented, setting out what errors were allegedly committed by the trial court;
(3) a statement of facts with record references;
(4) proper legal argument with appropriate citation to authorities and the appellate record; or
(5) a proper appendix.

See id. R. 38.1(d) (requiring statement of case supported by record references); 38.1(f) (requiring statement of issues presented), 38.1(g) (requiring statement of facts with record reference), 38.1(i) (requiring argument with appropriate citation to authority and record), and 38.1(k) (requiring appendix with copy of judgment or other appealable order, any jury charge and verdict form, any findings of fact and conclusions of law, and text of applicable rules, regulations, ordinances, statutes, constitutional provisions, or other law on which argument is based, or any contract or other document central to argument).

         With regard to the Rule 38.1 deficiencies, we note that the record in this case consists of: (1) a 463-page clerk's record; (2) a 39-page supplemental clerk's record; and (3) a seven-volume reporter's record, which, excluding the Master Index, is approximately 1, 235 pages. However, appellant Mother has no record citations in her statement of facts and very few record citations in the remainder of her brief. This court is not required to search the appellate record to support Mother's argument, that burden is upon appellant Mother. In addition, appellant Mother sets forth a single issue in the "Issue Presented" portion of her brief, but a review of that issue shows appellant Mother appears to be raising at least six separate contentions, making her issue improperly multifarious. Appellant Mother must specifically set out her individual issues rather than combining them within a single issue. Moreover, in the current brief, appellant Mother's stated issues do not align with her summary of the argument or the actual argument set forth in the brief. Appellant Mother's summary of the argument and actual argument must align with her stated issues.

         Appellant Mother's brief and appendix present another more serious problem. Appellant Mother has identified the minor children and others involved in this case by name in her brief and has included documents in the appendix to the brief - including pleadings from below - that likewise identify the minor children and other parties in this appeal. Rule 9.8 of the Texas Rules of Appellate Procedure requires that in cases involving termination of parental rights, all papers submitted to the appellate court - including all appendix items - must identify minor children by an alias and if ordered by the court, all parents and other family members must also be identified by an alias to protect the identities of the minor children. See id. R. 9.8(b). Additionally, Appellant Mother has included photographs of the children in her appendix. This too is improper.

         Finally, appellant Mother's brief does not include a certificate of compliance as required by Rule 9.4 of the Rules of Appellate Procedure. See id. R. 9.4(i)(3). Nor was the brief served on all parties to this appeal - by her own admission, Mother served only the appellate attorneys for the Texas Department of Family & Protective Services. See id. R. 9.5(a). However, Father is also a party to this appeal and was entitled to service with regard to Mother's brief. See id.

         Although substantial compliance with Rule 38.1 is generally sufficient, this court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id. R. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of Rule 38.1., as well as Rules 9.4(i) and 9.5(a), and 9.8(b).

         Accordingly, we ORDER appellant Mother's brief stricken and ORDER her to file an amended brief in this court on or before April 13, 2018. The amended brief must correct the violations and inadequacies listed above and fully comply with Rule 38.1, Rule 9.4(i), Rule 9.5(a), and Rule 9.8(b) of the Texas Rules of Appellate Procedure. See id. R. 9.4(i)(3), 9.5(a), 9.8(b), 38.1(d), (f), (g), (i), (k). If the amended brief does not comply with the requirements of Rule 38.1, may find that any issues raised by appellant Mother are waived due to ...


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