                            Fourth Court of Appeals
                                   San Antonio, Texas
                                           May 10, 2018

                                       No. 04-18-00153-CV

                                   IN RE A.L.H. AND G.F.H.,

                   From the 150th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2016PA01945
                      Honorable Charles E. Montemayor, Judge Presiding


                                          ORDER
Sitting:       Sandee Bryan Marion, Chief Justice
               Luz Elena D. Chapa, Justice
               Irene Rios, Justice

       James Peplinksi, counsel for the appellant-mother R.M.R., has filed an appellant’s brief.
We have reviewed the brief and determined that it is substantively defective under the Texas
Rules of Appellate Procedure. See TEX. R. APP. P. 38.1, 38.9.

        The brief presents a single issue: “Whether the evidence was factually or legally
sufficient to support the court’s finding that the termination was in the best interests of the
children.” Under the “Statement of Facts” section, the brief recites the procedural history at
length, as well as the trial proceedings and the witnesses’ testimony. According to the brief,
witnesses testified there was “a history of domestic violence between [the parents]”; one of the
children “was born with methadone in his system”; R.M.R. did not complete her family service
plan; R.M.R. “tested positive [for drugs] at the beginning of the case, was required to submit to
drug treatment, did not do so, and tested positive for hydrocodone, methamphetamines, and
amphetamines” during the case; R.M.R. “does not have stable housing”; “R.M.R. has not held a
job during the entire pendency of the case”; R.M.R. “only saw the children approximately three
times since August of 2017”; and R.M.R. suffers from severe “opioid heroin use disorder.”

        The “Summary of the Argument” section states, “In this case, the evidence presented at
trial was legally and factually insufficient to support the trial court’s finding that termination of
R.M.R.’s parental rights was in the best interests of the children.” Under the “Argument” section,
the brief recites the substantive law, the standard of review, and statutory and case-law factors
for a child’s best interest. See TEX. FAM. CODE. § 263.307(b); Holley v. Adams, 544 S.W.2d 367
(Tex. 1976). Only two sentences in the “Argument” section are not pure statements of law: (1)
“The evidence at trial was wholely insufficient to support the court’s finding that termination
was in the best interests of the children,” and (2) “It was not in the children’s best interests to
terminate R.M.R.’s parental rights and the Department did not meet the legal burden required to
do so.”

       Texas Rule of Appellate Procedure 38.1 provides, “The appellant’s brief must, under
appropriate headings and in the order here indicated, contain” required contents, including:

       (h) Summary of the Argument. The brief must contain a succinct, clear, and
       accurate statement of the arguments made in the body of the brief. This summary
       must not merely repeat the issues or points presented for review.

       (i) Argument. The brief must contain a clear and concise argument for the
       contentions made, with appropriate citations to authorities and to the record.

See TEX. R. APP. P. 38.1(h), (i).

        Inadequate briefing, whether due to the complete lack of contentions, arguments,
citations to the record, or citations to authority, can result in brief waiver. See McKellar v.
Cervantes, 367 S.W.3d 478, 484 n.5 (Tex. App.—Texarkana 2012, no pet.) (“Bare assertions of
error, without argument or authority, waive error.”). Consequently, when a brief is deficient as to
the only issue or point presented on appeal, an inadequate appellant’s brief risks adversely
affecting the party’s substantive rights. See id. Inadequately briefing the sole issue on appeal
raises sufficiently grave concerns, but those concerns are greater when, as here, the appeal
involves fundamental rights enshrined in the U.S. Constitution and when the appellant is entitled
by law to effective assistance of counsel. See Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re
E.R.W., 528 S.W.3d 251, 261 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

       To protect against those concerns, Texas Rule of Appellate Procedure 38.9 provides
appellate courts a mechanism to protect parties’ rights. Rule 38.9 provides:

       (b) Substantive Defects. If the court determines, either before or after submission,
       that the case has not been properly presented in the briefs, or that the law and
       authorities have not been properly cited in the briefs, the court may postpone
       submission, require additional briefing, and make any other order necessary for a
       satisfactory submission of the case.

See TEX. R. APP. P. 38.9(b). On one hand, we are loath to postpone and delay cases, such as this
one, that involve the permanency and welfare of children and are time-sensitive. See TEX. FAM.
CODE. § 263.401; see also TEX. R. JUD. ADMIN. 6.2(a). On the other hand, the Legislature has
provided parents in termination cases the right to effective assistance of counsel and parental
rights are fundamental constitutional rights. See Stanley, 405 U.S. at 651; E.R.W., 528 S.W.3d at
261.

        To provide more context for this order, we take judicial notice of the files in appellate
cause numbers 04-17-00681-CV and 04-17-710-CV. In those cases (and perhaps others), the
“Argument” sections in briefs filed by Mr. Peplinksi appear nearly identical to the brief filed in
this case. The conclusory allegations are the same in each brief. And the only case-specific
aspect of the “Argument” sections of those briefs are the appellant’s initials.

        In light of appellate counsel’s repetitive violations of Rule 38.1, we must act to protect
the integrity of the appellate process and a parent’s right to reasonably effective assistance of
counsel. We hold the appellant’s brief is substantively defective in the following ways:
   1. It does not contain any case-specific arguments or contentions that examine how the law
      applies to the evidence in this case. The “Statement of the Facts” section contains a
      detailed recitation of all of the evidence that the Department relied on at trial, but the
      “Argument” section does not provide any contentions or arguments as to why that
      evidence is legally or factually insufficient.

   2. The “Argument” section contains no citations to the record.

   3. The “Summary of the Argument” merely reiterates the issue statement.

         We order James Peplinksi to file an amended appellant’s brief that corrects the above-
noted deficiencies by May 21, 2018. If Mr. Peplinksi is unable to make good-faith arguments
and contentions in support of the sole issue on appeal, he is hereby reminded of the procedures
for filing a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).



                                                   _________________________________
                                                   Luz Elena D. Chapa, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of May, 2018.


                                                   ___________________________________
                                                   KEITH E. HOTTLE,
                                                   Clerk of Court
