Opinion
03-23-00151-CV
08-15-2023
J. W., Appellant v. Texas Department of Family and Protective Services, R. H., and A. H., Appellees
FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 21DFAM328131, THE HONORABLE DALLAS SIMS, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Kelly and Theofanis
MEMORANDUM OPINION
Chari L. Kelly, Justice
J.W. (Mother), appearing pro se, appeals the trial court's order appointing managing conservatorship of her three children to R.H. and A.H. We affirm the trial court's order of conservatorship.
Although the trial court's order also granted managing conservatorship to R.H. and A.H. at the exclusion of the children's father (Father), Father did not file a notice of appeal and therefore is not a party to these appellate proceedings.
BACKGROUND
On October 22, 2021, the Department filed an original petition in a suit affecting the parent-child relationship, seeking termination of Mother's and Father's parental rights to their three children, who at that time were approximately seven, five, and two years old. In the alternative, the Department sought managing conservatorship of the children in the event reunification could not be achieved.
Because a reporter's record in this case has not been filed, the background facts and procedural history are taken from the documents in the clerk's record.
In its petition, the Department also requested emergency orders allowing for the immediate removal of the children from their parents' care. See Tex. Fam. Code § 262.102 (authorizing emergency order for possession of child). According to the affidavit attached in support of its request for removal, the Department had received a report of suspected drug use by Father in the family home, and during the investigation that followed, one of the children made a sexual-abuse outcry to the Department investigator. The trial court granted the request for emergency orders, finding that there was "imminent danger to the physical health and safety of the children," and appointed the Department as temporary managing conservator. Two months later, following a full adversary hearing, the trial court signed temporary orders placing the children with a foster parent, A.H.
The trial court conducted a final hearing on March 3, 2023, and the next month, signed an order appointing A.H. and her husband R.H. as the children's joint managing conservators and appointing Mother and Father as possessory conservators. See id. § 153.131(b). In addition, the trial court found that giving Mother and Father possession and access to the children under the standard possession order would "endanger the physical and emotional welfare of the children." See id. § 153.191. Consequently, as to Mother, the court ordered that all visits between Mother and the children be supervised and "take place at the time, location, and discretion" of R.H. and A.H. Mother timely filed a notice of appeal in this Court.
The final hearing was conducted by an associate judge, and because no timely request for a de novo hearing was made, the associate judge's order became the order of the district court by operation of law. See Tex. Fam. Code § 201.2041.
ANALYSIS
As a preliminary matter, we consider the Department's assertion that due to inadequate briefing and the lack of a reporter's record, Mother has failed to preserve any issue for appeal.
Under Rule 38.1 of the Texas Rules of Appellate Procedure, an appellant's brief must concisely state all issues or points to be decided by the appellate court and "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the records." See Tex. R App. P. 38.1(f), (i). That is, an appellant's brief must "articulate the question to be answered" and then "guide [the court] through the appellant's argument with clear and understandable statements of the contentions made." Bolling v. Farmers Branch Indep. Sch. Dist, 315 S.W.3d 893, 896 (Tex. App-Dallas 2010, no pet.). An appellate court has "no duty-or even right-to perform an independent review of the record and applicable law to determine whether there was error." Bullock v. American Heart Ass'n, 360 S.W.3d 661, 665 (Tex. App-Dallas 2012, pet. denied); see Stillwell v. Stillwell, No. 03-17-00457-CV, 2018 Tex.App. LEXIS 8410, at *5 (Tex. App-Austin Oct. 17, 2018, pet. denied) (mem. op.).
In her appellate brief, Mother presents numerous complaints against the Department, the trial court judge, and other "agents of government," the central theme being that she was treated unfairly and that she was deprived of her due process rights. For example, Mother complains that Department employees violated her due process rights in conducting its investigation by lying and falsifying documents; that she was unjustifiably denied visits with her children during the pendency of the case; that before representing herself, her attorney failed to present evidence at the initial hearing that she had specifically requested be presented; that the trial court judge was biased against her and was "allegedly paid money to divide/separate me from my children"; and that the Department did not have a "contract or warrant" to remove the children from her home.
In general, Mother's complaints are conclusory in nature, unsupported by any citation to the record or to authorities, and lack a clear, cohesive argument or substantive analysis. Further, Mother fails to explain how, if at all, these complaints were brought to the attention of the trial court. See Tex. R. App. P. 33.1; see also In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (explaining that parents must raise due process claims in trial court to preserve error). Nevertheless, we will construe Mother's pro se briefing liberally, while also recognizing that we hold pro se litigants to the same procedural standards as litigants represented by counsel to avoid giving pro se litigants an unfair advantage. Veigel v. Texas Boll Weevil Eradication Found., Inc., 549 S.W.3d 193, 195 n.1 (Tex. App-Austin 2018, no pet.) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1978); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)). Applying this standard, we discern that Mother has presented two appellate issues: (1) the evidence is insufficient to support the trial court's award of conservatorship to nonparents A.H. and R.H., and (2) the trial court abused its discretion in denying her motion for a continuance of the final hearing. To the extent Mother seeks to present any other issue, we conclude that such issues have been inadequately briefed and, as a result, are waived.
Mother had the burden to request in writing that the official reporter prepare the reporter's record. See Tex. R. App. P. 34.6(b); Williams Farms Produce Sales, Inc. v. R&G Produce Co., 443 S.W.3d 250, 257 (Tex. App-Corpus Christ-Edinburg 2014, no pet.) ("The burden of providing a record showing error requiring reversal is on the appellant."). On March 21, 2023, the Clerk of this Court sent written notification to Mother that the court reporter had indicated that a request for the record had not been made. The Clerk's notification further informed Mother that unless she provided documentation showing that a written request for the reporter's record has been made, the Court would consider her appeal without a reporter's record. To date, Mother has not responded to our notice or taken the necessary steps to make the reporter's record part of the appellate record.
In the absence of a reporter's record, we must presume that the evidence before the trial court supported its judgment. Caldwell v. Caldwell, No. 03-10-00292-CV, 2012 Tex.App. LEXIS 9481, at *5 (Tex. App-Austin Nov. 8, 2012, pet. denied) (mem. op.) (citing Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002)). "Similarly, statements in a brief that are unsupported by the records cannot be accepted as facts by an appellate court." In re A.F.S., No. 05-16-01123-CV, 2018 Tex.App. LEXIS 5394, at *4 (Tex. App-Dallas July 17, 2018, no pet.) (mem. op.). Consequently, as to Mother's first issue, we cannot conclude that the evidence is insufficient to support the trial court's decisions regarding conservatorship and visitation.
As to Mother's complaint that the trial court should have granted her a continuance, we conclude that Mother has failed to preserve error on this issue. To preserve error, a motion for continuance must be in writing and, when required under Rule 251, supported by affidavit. Robinson v. Lubbering, No. 03-09-00655-CV, 2011 Tex.App. LEXIS 1592, at *28 (Tex. App-Austin Mar. 2, 2011, no pet.) (mem. op.); see Tex. R. Civ. P. 251; Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (explaining that generally, when movant fails to comply with Rule 251, reviewing court presumes that trial court did not abuse its discretion in denying motion for continuance). Nothing in the record indicates that Mother filed a written motion for continuance. Moreover, in the absence of a reporter's record, we cannot review any evidence that the parties may have presented related to the motion and must presume that the evidence supported the trial court's decision. See In re A.F.S., 2018 Tex.App. LEXIS 5394, at *5 (presuming that evidence supported denial of motion for continuance in appeal of conservatorship issue "in the absence of a reporter's record"). Mother's second issue is overruled.
CONCLUSION
Having overruled Mother's appellate issues, to the extent they have been preserved on appeal, we affirm the trial court's order appointing managing conservators.
Affirmed