Court of Appeals of Texas, Fourth District, San Antonio
IN RE A.L.H. AND G.F.H.,
the 150th Judicial District Court, Bexar County, Texas Trial
Court No. 2016PA01945 Honorable Charles E. Montemayor, Judge
Bryan Marion, Chief Justice, Luz Elena D. Chapa, Justice
Irene Rios, Justice
ELENA D. CHAPA, JUSTICE
Peplinksi, counsel for the appellant-mother R.M.R., has filed
an appellant's brief. We have reviewed the brief and
determined that it is substantively defective under the Texas
Rules of Appellate Procedure. See Tex.R.App.P. 38.1, 38.9.
brief presents a single issue: "Whether the evidence was
factually or legally sufficient to support the court's
finding that the termination was in the best interests of the
children." Under the "Statement of Facts"
section, the brief recites the procedural history at length,
as well as the trial proceedings and the witnesses'
testimony. According to the brief, witnesses testified there
was "a history of domestic violence between [the
parents]"; one of the children "was born with
methadone in his system"; R.M.R. did not complete her
family service plan; R.M.R. "tested positive [for drugs]
at the beginning of the case, was required to submit to drug
treatment, did not do so, and tested positive for
hydrocodone, methamphetamines, and amphetamines" during
the case; R.M.R. "does not have stable housing";
"R.M.R. has not held a job during the entire pendency of
the case"; R.M.R. "only saw the children
approximately three times since August of 2017"; and
R.M.R. suffers from severe "opioid heroin use
"Summary of the Argument" section states, "In
this case, the evidence presented at trial was legally and
factually insufficient to support the trial court's
finding that termination of R.M.R.'s parental rights was
in the best interests of the children." Under the
"Argument" section, the brief recites the
substantive law, the standard of review, and statutory and
case-law factors for a child's best interest.
See Tex. Fam. Code. § 263.307(b); Holley v.
Adams, 544 S.W.2d 367 (Tex. 1976). Only two sentences in
the "Argument" section are not pure statements of
law: (1) "The evidence at trial was wholely insufficient
to support the court's finding that termination was in
the best interests of the children, " and (2) "It
was not in the children's best interests to terminate
R.M.R.'s parental rights and the Department did not meet
the legal burden required to do so."
Rule of Appellate Procedure 38.1 provides, "The
appellant's brief must, under appropriate headings and in
the order here indicated, contain" required contents,
(h) Summary of the Argument. The brief must contain
a succinct, clear, and accurate statement of the arguments
made in the body of the brief. This summary must not merely
repeat the issues or points presented for review.
(i) Argument. The brief must contain a clear and
concise argument for the contentions made, with appropriate
citations to authorities and to the record.
See Tex. R. App. P. 38.1(h), (i).
briefing, whether due to the complete lack of contentions,
arguments, citations to the record, or citations to
authority, can result in brief waiver. See McKellar v.
Cervantes, 367 S.W.3d 478, 484 n.5 (Tex. App.-Texarkana
2012, no pet.) ("Bare assertions of error, without
argument or authority, waive error."). Consequently,
when a brief is deficient as to the only issue or point
presented on appeal, an inadequate appellant's brief
risks adversely affecting the party's substantive rights.
See id. Inadequately briefing the sole issue on
appeal raises sufficiently grave concerns, but those concerns
are greater when, as here, the appeal involves fundamental
rights enshrined in the U.S. Constitution and when the
appellant is entitled by law to effective assistance of
counsel. See Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re E.R.W., 528 S.W.3d 251, 261 (Tex.
App.-Houston [14th Dist.] 2017, no pet.)
protect against those concerns, Texas Rule of Appellate
Procedure 38.9 provides appellate courts a mechanism to
protect parties' rights. Rule 38.9 provides:
(b) Substantive Defects. If the court determines,
either before or after submission, that the case has not been
properly presented in the briefs, or that the law and
authorities have not been properly cited in the briefs, the
court may postpone submission, require additional briefing,
and make any other order necessary for a satisfactory
submission of the case.
See Tex. R. App. P. 38.9(b). On one hand, we are
loath to postpone and delay cases, such as this one, that
involve the permanency and welfare of children and are
time-sensitive. See Tex. Fam. Code. § 263.401;
see also Tex. R. Jud. Admin. 6.2(a). On the other
hand, the Legislature has provided parents in termination
cases the right to effective assistance of counsel and
parental rights are ...