IN THE
TENTH COURT OF APPEALS
No. 10-19-00108-CV
IN THE INTEREST OF C.P. AND B.P., CHILDREN
From the 12th District Court
Madison County, Texas
Trial Court No. 18-15004
DISSENTING OPINION
I cannot join the Court in its disposition of this proceeding. The appeal should
never have been filed.1 But the trial court should never have entered the judgment that
it did based on the record before it. The record is filled with zero evidence to support the
findings relating to the predicate grounds upon which it based the termination of
Pursley's parental rights. By zero evidence, I mean the traditional “no evidence” level of
evidence, not the current iteration of “legally insufficient” evidence. Moreover, if we
1 This appeal was filed without consultation with the client; which unfortunately in termination of parental
rights cases, is not all that uncommon. The appointed lawyers either lose contact with their client or never
even had contact with their client and do not know how to proceed. More specifically they do not know
how their client wants to proceed. To protect themselves, as much as their client, they make an appearance
and then engage in various levels of activity on behalf of their client.
were to conduct an Anders review of the record, we would have to abate it for the
appointment of new counsel because there are numerous meritorious issues for
presentation on appeal. But because of some procedural failures, the Court feels that it is
in a position to dispose of this proceeding by dismissal for want of prosecution. I would
not.
It is unclear if Pursley was ever properly served in this suit to terminate his
parental rights. In the past, the Attorney General's office has been successful in finding
Pursley to pursue enforcement of past due child support for other children, but for this
suit, he was apparently served by posting a copy of the petition at the courthouse. I do
not believe that complies with fundamental due process. He was appointed an attorney,
not because he established his inability to pay, but because he could not be located. See
TEX. R. CIV. P. 244. But because the rules and statutes are unclear about what the duties
are of an attorney appointed to represent a defendant in this circumstance, where notice
by publication is used, a vigorous defense was not made. At the final hearing, neither
the trial court nor the appointed attorney put the State to its burden of proof to obtain a
judgment supported by clear and convincing evidence that Pursley’s parental rights
should be terminated on ground, D, E, N, or O and a finding regarding the best interest
of the child. The appointed attorney nevertheless, filed a notice of appeal.
However, rather than prosecute the appeal, the attorney filed both a motion for an
extension of time to file a brief and a motion to withdraw with this Court. This Court
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abated the proceeding to the trial court “to determine: (1) whether Joshua Pursley desires
to continue the appeal; and (2) whether Joshua Pursley should be appointed new counsel
on appeal.” The trial court purported to grant the motion to withdraw but should not
have. Once the appeal was perfected, the trial court did not have the authority to grant
the motion, absent abatement for that purpose by this Court. As noted above, the
abatement order was not for that purpose.
Although having exceeded the scope of the abatement hearing by purporting to
allow counsel to withdraw, the trial court did make a determination on one of the issues
we ordered. The trial court determined “that Joshua Pursley has no interest in proceeding
with his appeal.” This finding is interesting in that the record does not contain any
indication that Pursley knew of the appeal or had notice of the abatement hearing to
determine if he wanted to pursue the appeal. While there was some discussion of the
minimal efforts made to notify Pursley of the abatement hearing, there is zero indication
in the record that any notice was actually effectively delivered to Pursley. The trial court
did not attempt to send notice directly to Pursley of the abatement hearing. While the
Court recites in its May 21, 2019 notice addressed to Pursley a portion of the text message
Pursley’s attorney sent to the last cell phone number she had for him, and that is was that
number that was provided to the clerk of the trial court at the abatement hearing and the
number provided by Pursley’s mother, the Court fails to note that when the clerk called
that number during the hearing, she received a recording that the number was no longer
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in service. In addition, the notices from this Court that were sent to the address that was
given and used for this Court to attempt to communicate directly with Pursley were
returned with the notation “No Mail Receptacle.” And notices sent to the previous
address given to, and used by, the Court to send notices directly to Pursley were returned
with the notation “Attempted—Not Known; Unable to Forward.”
So the bottom line here is that we have an appeal in which an attorney represents
Pursley. The attorney has not validly been allowed to withdraw from representing
Pursley and has filed a motion for extension of time to file a brief. I would grant that
motion. I would also deny the motion to withdraw. Finally, I would order the attorney
to make all reasonable efforts to find her client and find out if the client even wanted to
file the appeal that was filed for the stated purpose “to protect the appellate interests” of
her client. In making the determination of whether Pursley wants to appeal, the attorney
may be able to obtain an affidavit that the client would like to file a motion to dismiss; or
not.
Do not misconstrue this dissenting opinion. There is nothing in this record to
indicate that Pursley wanted to appeal. There is nothing in this record that indicates
Pursley was seeking to avoid the termination of his parental rights. But the State initiated
this legal action to terminate Pursley’s parental rights. Due process requires that the State
be able to show that it has joined the issue with Pursley by proper service on him of the
suit and proven its case by clear and convincing evidence. Having failed to secure
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personal service on Pursley, the State sought to move forward with posted service. The
trial court appointed an attorney to protect Pursley’s interest. The rules and the statutes
are unclear regarding how far that appointed attorney must go to protect Pursley’s
interest but she was at the trial and thereafter filed a notice of appeal. It is either too late
to quit or too early to quit but clearly it is now at a stage that she cannot just quit.
Much of our jurisprudence in termination cases is adapted from criminal
jurisprudence because of the nature of the State’s action and the rights of the defendant.
In making that adaptation to this situation, I think it is appropriate to require (1) a motion
to dismiss supported by a) the signature of the defendant, or b) an affidavit in support of
the motion signed by the defendant, (2) a statement on the record made by the defendant
of a desire to dismiss the appeal, or (3) a determination made on the record after a clear
and specific showing that the defendant had actual notice and an opportunity to appear
at the hearing (a present ability to attend if he wanted to) either in person or in writing,
but failed to attend the hearing that would thus support a finding that he did not desire
to pursue the appeal, before I could grant such a motion and dismiss an appeal. We have
none of this in the record before this Court. Because we have none of these but
nevertheless the Court dismisses this appeal, I respectfully dissent.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Dissenting Opinion delivered and filed July 24, 2019
[CV06]
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