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In re L.Z.

Court of Appeals of Texas, First District

November 14, 2019

IN THE INTEREST OF L.Z., M.H., AND N.U., CHILDREN

          On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2017-06000J

          Panel consists of Chief Justice Radack and Justices Landau and Hightower.

          MEMORANDUM OPINION

          Richard Hightower Justice.

         This is an appeal from the termination of appellant S.H.'s parental rights to her three children. We affirm the trial court's termination decree.

         Background

         The Department of Family and Protective Services sought the termination of the parental rights of S.H., the mother of L.Z., M.H., and N.U.[1] The children's maternal grandmother intervened-the children were placed with her, and her and the Department's plan was for the grandmother to adopt the children. After a December 13, 2018 bench trial, the trial court signed a final decree terminating S.H.'s parental rights under Family Code subsections 161.001(b)(1)(D), (E), and (O).[2]

         After S.H. filed her notice of appeal, and cognizant of our duty to dispose of this appeal within 180 days, "so far as reasonably possible, "[3] on February 6, 2019, we notified that trial court clerk that the clerk's record had not been timely filed. A partial reporter's record, consisting only of several preliminary hearings, was filed on February 1, 2019. The clerk's record was filed on February 25, 2019, but thereafter an appellant's brief was not timely filed. See Tex. R. App. P. 38.6(a). In an April 25, 2019 order, we abated this appeal for the trial court to hold a hearing to determine: (1) whether appellant desired to proceed with this appeal; (2) why retained counsel had not filed an appellant's brief; (3) whether retained counsel had abandoned the appeal; and (4) whether appellant was indigent and entitled to appointment of counsel, and if so, for the trial court to appoint counsel for appellant. The trial court held a hearing on May 7, 2019, and because neither S.H. nor her retained attorney appeared, the trial court was unable to make the requested determinations.

         Thereafter, we determined that a reporter's record of the bench trial had not been filed because S.H.'s retained counsel had not requested it, so in a May 16, 2019 order, we abated this appeal a second time for the trial court to hold a hearing to determine: (1) whether retained counsel has abandoned S.H.; and (2) whether S.H. is indigent and entitled to appointment of counsel. We further closed this appeal and removed it from our active-case docket.

         On May 23, 2019, the trial court held a hearing, and again neither S.H. nor her retained attorney appeared. The trial court determined that retained counsel had constructively abandoned S.H. and appointed counsel for S.H. S.H.'s appointed counsel filed a notice of appearance. We then reinstated the appeal and directed appointed counsel to file a statement of inability in the trial court within five days so that the trial court could make an indigence determination. See Tex. R. Civ. P. 145(a).

         We next received a filing from appointed counsel that, among other things, indicated that appointed counsel could not locate S.H. and that retained counsel, despite her agreement to do so, had not provided appointed counsel with contact information for S.H. The filing also included a letter from appointed counsel to retained counsel stating that retained counsel had telephoned appointed counsel and informed him that S.H. desired to proceed in this appeal with retained counsel, who filed a notice of appearance as attorney-in-charge for S.H. on July 22, 2019.

         In a July 26, 2019 order, we notified retained counsel that a reporter's record of the bench trial and an appellant's brief had not been filed and ordered appellant to cause the reporter's record to be filed within twenty days of the order and to file an appellant's brief within twenty days of the filing of the reporter's record. The court reporter filed a notice on July 30, 2019, indicating that the reporter's record had not been filed because appellant had not paid or made arrangements to pay for the record.

         On August 15, 2019, retained counsel filed a motion for extension of time to file appellant's brief. In an August 16, 2019 order, we denied the motion and ordered retained counsel to file proof of her request and arrangements to pay for the reporter's record no later than August 20, 2019, and, if such proof were timely filed, to file appellant's brief within twenty days of the filing of the reporter's record. Retained counsel filed such timely proof, and the reporter's record of the bench trial was filed on August 27, 2019. Retained counsel filed an appellant's brief on September 16, 2019, and the Department filed its brief on October 4, 2019.

         Discussion

         Issue one in S.H.'s appellant's brief asserts that the trial court abused its discretion "by refusing to allow [S.H.'s] counsel's formal protests to be properly recognized, which is manifestly contrary to law, while being preferential in a preconceived manner to opposing counsel's rhetoric." The Department ...


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