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In a case called In re: A.S., a divided Beaumont Court of Appeals affirmed a trial court's termination of parental rights without a reporter's record.  The majority said that it could tell that the appeal would be frivolous based upon the record from a post-trial hearing. The majority refused the appellant's request that the trial itself be transcribed before considering the appeal.

This is an astounding decision.  At the post-trial hearing, counsel for the Texas Department of Family and Protective Services (TDFPS) told the trial court what the evidence had been at trial.  The parent's appellate attorney, who did not try the case, was unable to respond with any particularity.  Although the appellate attorney had spoken with the attorney who represented the parent at trial, the appellate attorney had no opportunity to review the trial evidence - by reviewing the reporter's record - because the Beaumont Court's majority decided it didn't need the reporter's record to conclude that the appeal was frivolous. 

Thus, the Court's majority decided the appeal of a termination case based on the recollection of the attorney for TDFPS of what the evidence at trial showed.

In dissent, Justice Gaultney put the matter bluntly:  "An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence."  Citing a United States Supreme Court opinion, Justice Gaultney further inquired how an appellate attorney could "adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record."

We hope that the appellate attorney files a petition for review with the Texas Supreme Court.  Cutting corners when it comes to due process undermines confidence in the judicial system.

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Wikipedia explains that "Catch-22" is common idiomatic usage meaning "a no-win situation" or "a double bind." Although the San Antonio Court of Appeals did not use that term, it recognized the concept in a termination case called In re: R.M.

Termination appeals are tricky. First of all, one must appeal within twenty days rather than the usual thirty days because termination appeals are accelerated appeals. For the same reason, a motion for new trial or the like will not extend the appellate deadline as in the ordinary appeal.

In termination cases brought by the Texas Department of Family and Protective Services, there's a further requirement.  Per Texas Family Code section 263.405(b), an appellant must, within fifteen days after the termination order is signed, file a statement of points on which the party intends to appeal. If no statement is filed, then no issues are preserved for appeal.

One issue that can be raised in a termination case is ineffective assistance of counsel. In In re: R.M., the parent tried to raise that issue on appeal, but because the (ineffective) counsel did not include ineffective assistance of counsel in a statement of points to be raised on appeal, the issue was not preserved for review by the Court.

The Court recognized the result as "harsh" and joined other courts in calling for the legislature to change the statute. Quoting the Dallas Court of Appeals, the Court characterized section 263.405(b) as "a trap for the unwary."  But instead of ridding the state of this trap, the legislature added a second one.  It amended section 263.405(b) to contract the deadline for filing motions for new trials to fifteen days in TDPRS cases.

In other words, yet another Catch-22.

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A family law appeal has three primary stages.  They are (1) perfecting the appeal, (2) briefing, and (3) submission.

Perfecting the appeal of a family law case is time-sensitive.  If the correct documents are not timely filed, the appellate court will not have jurisdiction of the appeal, and the appeal must be dismissed.

To perfect a family law appeal, the appellant normally files four documents:  (1) the Notice of Appeal; (2) the Request for Reporter's Record; (3) the Request for Clerk's Record; and (4) the Docketing Statement.  In addition, the appellant must pay a fee of $125 to the clerk of the appropriate appellate court.

Briefing the appeal takes place after the record (consisting of the Reporter's Record and the Clerk's Record) has been filed.  The appellant's brief normally is due 30 days after the last-filed part of the record.  The appellee then has 25 days within which to file a response, after which the appellant may file a reply within 20 days of the appellant so wishes.

Submission of the appeal is the final step.  "Submission" means formal presentation to the court of appeals.  Most appeals are not only briefed but argued orally to a panel of judges (if in the court of appeals) or to all nine judges of the Texas Supreme Court.

When an appeal is argued orally, the appellant's lawyer has twenty minutes to argue, then the appellee's lawyer has twenty minutes, and finally the appellant's lawyer has five minutes to argue in rebuttal.  These deadlines are strictly enforced by the appellate judges; a "green light/yellow light/red light" system is in effect, with the lights visible to the lawyers as they argue.

Because usually a number of months pass between briefing and submission, it is customary for counsel to write a letter to the clerk of court perhaps two weeks before submission to alert the court to relevant cases that have been decided since briefing.

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Family law appeals, like appeals in other civil cases, are taken under the Texas Rules of Appellate Procedure. Under those rules, most post-trial and appellate deadlines run from the date the judgment, or decree, is signed by the trial court.

To perfect an appeal, one must file a notice of appeal and a docketing statement. One also must order the reporter's record (the court reporter's transcription of the hearing or trial) and specify supplements to the clerk's record (what has been filed with the clerk of the court). These materials are filed with the court of appeals. The parties later submit briefs in accordance with detailed briefing rules and ultimately argue their cases before the court.

Special rules apply to family law appeals. Among them are:

If a parent wants to know exactly how the trial court calculated child support, the parent might need to make a special request to the court.

Appeals from the rulings of associate judges must be filed within three days of the date of hearing.

Termination and paternity cases are treated as accelerated appeals, which means that the notice of appeal must be filed earlier than in normal cases.

The reader should take care to determine whether any special rules apply to a particular case.

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