Opinion
No. 04-15-00425-CV
02-03-2016
In the Interest of D.M., A.M., A.M., J.M., and J.M.M., Children
MEMORANDUM OPINION
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02128
Honorable Laura Salinas, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Jason Pulliam, Justice AFFIRMED IN PART, REVERSED AND REMANDED IN PART
This is an accelerated appeal from an order terminating appellant-Mother's parental rights to her five children, D.M., A.M., A.M., J.M., and J.M.M and removing appellant-Grandmother as joint managing conservator of the children. The portion of the trial court's order terminating Mother's parental rights is affirmed. The portion of the trial court's order discharging Grandmother's conservatorship rights is reversed and remanded to the trial court for further proceedings consistent with this opinion.
To protect the identity of minor children, we refer to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). --------
MOTHER'S APPEAL
Mother's court-appointed appellate attorney filed a brief representing that he conducted a professional evaluation of the record and determined there are no arguable grounds to be advanced on Mother's behalf. Counsel concluded this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California. See Anders v. California, 386 U.S. 738 (1967); In the interest of R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.—San Antonio 2003, order) (applying Anders procedure in an appeal from an order terminating parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San Antonio 2003, no pet.). Mother was provided copies of counsel's brief and motion to withdraw and was informed of her right to review the record and file her own brief. Additionally, counsel advised Mother to file a motion in this court if she wished to review the appellate record and enclosed a form motion for that purpose. See Kelly v. State, 436 S.W.3d 313, 320 (Tex. Crim. App. 2014); R.R., 2003 WL 21157944, at *4. Thereafter, this court set deadlines for Mother to file any motion for the record and any pro se brief. Mother did not file a motion for the record or a pro se brief.
This court has reviewed the record of the trial on the merits and counsel's Anders brief and agrees this appeal is without merit. Accordingly, counsel's motion to withdraw is granted, and the portion of the trial court's order which terminates Mother's parental rights is affirmed.
GRANDMOTHER'S APPEAL
Background
In 2011, Grandmother and Mother were named joint managing conservators of the children who are the subject of this appeal. Grandmother was granted the exclusive right to determine the children's primary residence. On September 5, 2013, the Texas Department of Family and Protective Services ("the Department") filed its original petition to terminate parental rights. Although Grandmother was named as a party to be served, the Department did not request termination of Grandmother's conservatorship rights.
The case was set for trial on February 17, 2015. On February 3, 2015, the original petition was amended to request, among other things, that Grandmother's conservatorship rights be terminated. Following a trial on the merits, the trial court signed an Order of Termination, and Grandmother's conservatorship rights were discharged. Grandmother subsequently filed this appeal.
Analysis
Grandmother raises three issues on appeal: (1) whether the trial court erred by denying Grandmother's right to a trial by jury; (2) whether the evidence is legally and factually sufficient to support the trial court's finding that termination of Grandmother's conservatorship rights was in the best interests of the children; and (3) whether the trial court lacked jurisdiction.
Right to Trial by Jury
In her first issue on appeal, Grandmother contends the trial court denied her right to a jury trial. Grandmother asserts she did not receive notice of the amended petition that implicated her rights until the morning trial was to begin. Upon receiving notice, Grandmother requested a jury trial, but the trial court denied Grandmother's jury demand as untimely. Grandmother argues the lack of fair notice ultimately implicated her right to a jury trial.
The amended petition was not filed until two weeks before trial. Grandmother's conservatorship rights were not implicated until that time because the original petition for termination did not contain any requests regarding Grandmother's conservatorship rights. Therefore, Grandmother's timeline for taking certain legal steps, such as requesting a jury, did not begin until that date. See TEX. R. CIV. P. 216.
Grandmother was not afforded the appropriate amount of time to prepare for trial. Because the amended petition was filed only two weeks before trial was set to begin, it was impossible for Grandmother to request a jury thirty days before trial, as required by the rules. Id. When the trial court failed to take steps necessary to allow Grandmother to obtain a jury, the trial court undermined Grandmother's right to a jury trial. The State concedes error with respect to Grandmother's first issue on appeal.
Because the State concedes error on Issue One, and this court concludes the trial court erred by denying Grandmother's right to trial by jury, the remaining issues are not necessary to final disposition of this appeal. Grandmother's first issue on appeal is affirmed.
CONCLUSION
Accordingly, the portion of the trial court's order pertaining to the termination of Mother's parental rights is affirmed, and the portion of the trial court's order pertaining to the discharge of Grandmother's conservatorship rights is reversed and remanded to the trial court for proceedings consistent with this opinion.
Jason Pulliam, Justice