in the Matter of J. A. C., a Juvenile

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-19-00042-CV § In the Matter of Appeal from the § J.A.C., 65th District Court § a Juvenile. of El Paso County, Texas § (TC# 1800828) §

ORDER

This juvenile case has been preliminarily set on this Court’s dismissal docket. We must

determine whether we can dismiss the appeal under these circumstances following a failure to file

an appellant’s brief. For the reasons that follow, we hereby ORDER the appellate timetables to be

reinstated. We will provide counsel for the juvenile one more opportunity to file a brief with this

Court. The Appellant’s Brief will be due 30 days from this order.

BACKGROUND

On May 13, 2019, the attorney for juvenile J.A.C. filed a motion to dismiss this appeal

from a juvenile court delinquency adjudication. We denied the motion to dismiss, holding that our

opinion in In re E.J.E., 557 S.W.3d 615 (Tex.App.—El Paso 2007, op. on motion) required a

1 motion to dismiss a juvenile case to be supported by a written waiver of the juvenile’s right to

appeal in accordance with Section 51.09 of the Texas Family Code. The Court gave Appellant ten

days to correct the defect, but Appellant did not do so. Thus, we set a briefing schedule and ordered

Appellant to file a brief no later than June 29, 2019.

Appellant did not file a brief in this case, even after he was prompted to do so by a late-

notice letter sent from the Clerk's Office. On July 25, 2019, we ordered the trial court to conduct

a hearing to determine if Appellant wished to continue the appeal or if Appellant wished to waive

his right to appeal. If Appellant wished to continue his appeal, the trial court was directed to

determine whether Appellant had been deprived of the effective assistance of counsel.

Per our order, the trial court conducted a hearing on August 20, 2019. Present at the hearing

were the juvenile’s attorney, the juvenile’s mother, and the juvenile’s former probation officer.

The juvenile was not present.

The Appellant's mother testified that at the time of the offense, her son was 11 years old

and that she made the decisions regarding the criminal justice process. She further testified that

she had originally wanted to appeal the decision because it would have affected their housing

situation, but that during the duration of the appeal, her son had left El Paso. In response to a

question from the trial court, she testified that it had not been her son’s decision to appeal, but that

she had made the decision to appeal on his behalf.

The juvenile’s probation officer testified that she terminated his probation because CPS

got involved in the case and the juvenile was placed outside of the mother's home in El Paso before

he was moved to Juarez, Mexico, with his father. She confirmed an explanation made by the trial

judge on the record that the arrangement the parties had reached had been to terminate probation

because the juvenile was going to live in Juarez with his father and thus the probation department

2 would not be allowed to make contact with the child. However, the probation officer testified that

she had that day learned that the juvenile was now apparently located in Phoenix, Arizona, for a

period of at least a week prior to the hearing. She conceded that getting ahold of the child had been

difficult.

At the end of the hearing, the trial court and counsel for the juvenile had the following

colloquy:

THE COURT: Okay. And just so that I understand what happened. So when you asked for the appeal it's because the mother had told you or had made some sort of comment that she thought they were going to lose their housing because of the fact that he got adjudicated.

MR. SPENCER: That's correct, Judge.

THE COURT: And that's when you decided that you wanted to go ahead and file the appeal.

THE COURT: But we actually found out that in reality the reason she was going to be kicked out of the -- the complex was having to do with her boyfriend.

THE COURT: And so she actually ended up losing housing in part because of the fact that the boyfriend went back into the home.

THE COURT: So it had nothing to do in regards to the juvenile.

MR. SPENCER: That's my understanding, Judge. And -- and I’d like to have that - - those comments clarified with the probation if she confirms that information.

THE COURT: Okay.

Q. (BY MR. SPENCER) Is that accurate what the Judge is -- I mean, the Judge's knowledge of the case, is that accurate with you?

A. [BY PROBATION OFFICER] That's what I was informed by [Juvenile's Mother].

3 [...]

THE COURT: Okay. Mr. Spencer, anything that you want to put on the record?

MR. SPENCER: Judge, only that I ask that the Court -- because I don't have actual access to [Juvenile] . . . for him to sign the motion I ask the court to allow leave to make for -- to make a motion to dismiss without the juvenile's signature confirming that based on . . . the mother's testimony, that that would be sufficient for the Court of Appeals to accept the -- the acknowledgement of the dismiss of the appeal. . . .

Following the hearing, the trial court made the following findings:

1. The juvenile never indicated that he wished to file an appeal.

2. The Trial Court finds that the juvenile's mother [NAME REDACTED] after disposition wanted to appeal and requested the appeal. However, juvenile's mother no longer wishes to pursue the appeal.

3. Juvenile is no longer within the Court's Jurisdiction. CPS removed the juvenile from the mother and placed the juvenile with his father in Cd. Juarez, Chihuahua, Mexico. The juvenile was terminated from probation on June 14, 2019.

Therefore, the court finds that Appellant had no desire to appeal his case and that the Appellant's mother no longer wished to proceed with an appeal.

DISCUSSION

Waiver of Right to Appeal in Juvenile Case Under In re E.J.E.

“The requirements governing a [juvenile] appeal are as in civil cases generally.”

TEX.FAM.CODE ANN. § 56.01(b). However, although juvenile proceedings are technically civil in

nature, “because proceedings in juvenile court bear many of the hallmarks and consequences of a

criminal proceeding against an adult, the proceedings are quasi-criminal in nature and subject to

numerous due process restrictions mirroring those at play in a full criminal trial.” In re A.J.S., 442

S.W.3d 562, 565 (Tex.App.—El Paso 2014, no pet.).

In In re E.J.E., this Court dealt with the issue of whether a motion to dismiss a juvenile

proceeding is subject to the rule for civil case dismissal standard set by Tex.R.App.P. 42.1 or the

4 criminal dismissal standard set by TEX.R.APP.P. 42.2. See In re E.J.E., 557 S.W.3d at 616. In a

published opinion on motion that was ruled on by the entire Eighth Court panel en banc, this Court

determined that although juvenile cases were subject to the civil dismissal rule in TEX.R.APP.P.

42.1 generally, a statute in the Texas Family Code—TEX.FAM.CODE ANN. § 51.09—required

evidence that the juvenile has affirmatively waived his right to appeal once the notice of appeal is

filed. We held that, in accordance with Section 51.09, we cannot dismiss a juvenile appeal unless

and until:

(1) the waiver is made by the child and the attorney for the child;

(2) the child and the attorney waiving the right are informed of and understand the right

and the possible consequences of waiving it;

(3) the waiver is voluntary; and

(4) the waiver is made in writing or in court proceedings that are recorded.

See In re E.J.E., 557 S.W.3d at 616 (citing TEX.FAM.CODE ANN. § 51.09).

Like this case, In re E.J.E. also involved a motion to dismiss signed by a juvenile’s attorney

and a juvenile’s mother, but not by the juvenile themselves. The Court refused to dismiss, holding

that some writing signed by the juvenile was required before the Court could dismiss the appeal.

Id. at 617. Here, we find ourselves in a similar situation. The juvenile’s attorney and the juvenile’s

mother are both in favor of dismissal, but there is no written instrument signed by the juvenile

stating that he wished to abandon his appeal. Our sister court in Fort Worth has recognized that

proof of waiver may also be accomplished by the juvenile stating on the record at a hearing in the

trial court that he wished to waive and dismiss his appeal. See In re C.A., No. 02-19-00060-CV,

2019 WL 1716337, at *1 n.1 (Tex.App.--Fort Worth Apr. 18, 2019, no pet.)(mem. op.). But in this

case, we have no testimony from the juvenile at the hearing—the juvenile did not appear, and his

5 whereabouts are apparently unknown. While the trial court found that the juvenile had been placed

with his father in Ciudad Juarez, Mexico, outside the jurisdiction of the United States, the

juvenile’s probation officer testified that she had learned that he had recently been located in

Phoenix, Arizona.

While we understand the frustrations of counsel and the trial court in dealing with a client

who is difficult to contact—particularly when that client is a juvenile in a border community like

El Paso and a client may go back and forth between the United States and Mexico—the mandates

of the Texas Family Cod are still clear. We are bound by our previous decision in In re E.J.E. The

record must show that the juvenile has assented to dismissal of the appeal, either in writing or at a

hearing on the record. The record here does not show an affirmative waiver, and as we said in

E.J.E., consent by the juvenile’s attorney and the juvenile’s mother is not enough. We stand by

our previous determination that the juvenile has not waived appeal.

Failure to File Appellant’s Brief

Because we cannot dismiss based on the juvenile’s affirmative waiver of his right to

dismissal, we must next decide whether we may still dismiss this appeal for want of prosecution

based on Appellant’s failure to file a brief.

Rule 38.8 of the Texas Rules of Appellate Procedure sets out the procedure for this Court

in the event an appellant fails to file a brief. The rule sets different standards for civil and criminal

cases:

38.8 Failure of Appellant to File Brief

(a) Civil Cases. If an appellant fails to timely file a brief, the appellate court may:

(1) dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant's failure to timely file a brief;

6 (2) decline to dismiss the appeal and give further direction to the case as it considers proper; or

(3) if an appellee’s brief is filed, the court may regard that brief as correctly presenting the case and may affirm the trial court's judgment upon that brief without examining the record.

(b) Criminal Cases.

(1) Effect. An appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs.

(2) Notice. If the appellant's brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations.

(3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record—including any order and findings—must be sent to the appellate court.

(4) Appellate Court Action. Based on the trial court’s record, the appellate court may act appropriately to ensure that the appellant’s rights are protected, including initiating contempt proceedings against appellant’s counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require.

In this case, we have used the procedure employed in criminal cases when an appellant’s

brief is not filed as the procedure we will follow in this case, which we may do as an exercise of

our authority under the civil rule giving us discretion as to how to move forward. Cf. In re A.J.S.,

442 S.W.3d at 565 (due process requires courts to treat otherwise civil juvenile delinquency cases

as being subject to criminal procedural safeguards under certain circumstances); TEX.R.APP.P.

38.8(a)(2)(stating that even in civil cases we have the power to decline to dismiss a case for want

7 of prosecution when an appellant’s brief is not file and allowing us to issue further instructions as

we deem proper).

Because there is not sufficient evidence in the record showing that the juvenile

affirmatively waived his appeal, because his mother’s stated reason for wanting the appeal

dismissed (i.e. her son’s delinquency adjudication no longer forming a factor in her housing

situation) is not an adequate reason for us to justify dismissing this appeal in light of the gravity

of consequences that a quasi-criminal juvenile conviction carries for her son, because it is unclear

whether Mother has the authority to make decisions for the juvenile given that the record

establishes that CPS placed the juvenile with his father, because the record does not show if and

how counsel tried to contact the juvenile, and because dismissal of this appeal in favor of the

juvenile pursuing claims in habeas in the future is not an efficient or just way to handle any

potential appellate claims the juvenile may have, we decline to dismiss this case for want of

prosecution.

CONCLUSION

We hereby order the appellate timetables to be reinstated. We will provide counsel for the

juvenile one more opportunity to file a brief with this Court. The Appellant’s Brief will be due 30

days from this order.

IT IS SO ORDERED this 27th day of September, 2019.

PER CURIAM