Maria Fernandez, Jose Manuel Ibarra and Robert Joseph Kunst v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: September 22, 2010
• Docket: 03-10-00022-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-10-00021-CV

Maria Fernandez, Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT

NO. C-08-0263-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

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NO. 03-10-00022-CV

Maria Fernandez, Jose Manuel Ibarra and Robert Joseph Kunst, Appellants

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT

NO. C-08-0264-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

O R D E R

After a bench trial, the trial court terminated Maria Fernandez, Jose Manuel Ibarra, and Robert Joseph Kunst's parental rights to the minor children subject to these suits. Thereafter, the appellants each filed statements of points on appeal challenging the termination order on various procedural and evidentiary-sufficiency grounds. See Tex. Fam. Code Ann. § 263.405(b)(2) (West 2008). Following a hearing, the trial court found that Fernandez and Kunst's appeals were frivolous but that Ibarra's was not frivolous. See id. § 263.405(d)(3). Accordingly, only Ibarra was found to be entitled to a free record on appeal. See id.; Tex. Civ. Prac. & Rem. Code Ann. § 13.003 (West 2002). Clerk's records in both causes and the reporter's record of the consolidated termination hearing were filed in this Court on March 3, 2010. The court reporter has informed this Court that her record for the trial court cause number pertaining to Ibarra is a complete record for all three appellants.

Fernandez and Kunst now appeal the trial court's finding that their appeals were frivolous. On July 30, 2010, this Court's clerk's office notified their appointed counsel that briefing on the frivolousness appeals was overdue and requested a response or status update no later than August 9, 2010. Briefs have still not been filed. Although, in appropriate cases, this Court will review a trial court's finding that an appeal is frivolous without briefing from the parties, we note that in this case the issue to be resolved--whether Fernandez and Kunst are entitled to a free record because their appeals were not frivolous--is moot in light of a complete record already having been filed in this Court. Therefore, we will dismiss as moot Fernandez and Kunst's appeals of the frivolousness findings and order briefing on the merits of the termination order from all parties. Appellants' briefs will be due on or before October 12, 2010. ⁽¹⁾ If any appellant no longer wishes to pursue an appeal of the final order of termination, he or she should file a motion to dismiss.

It is so ordered September 22, 2010.

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

1. Fernandez and the Department, who are parties in both cases, may each consolidate their briefing in Nos. 03-10-00021-CV and 03-10-00022-CV for purposes of appeal.