                                       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


In the Interest of C.P. and B.P., Children                                           Page 2
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


In the Interest of C.P. and B.P., Children                                            Page 3
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


In the Interest of C.P. and B.P., Children                                             Page 4
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



In the Interest of C.P. and B.P., Children                                                 Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Dissenting Opinion delivered and filed July 24, 2019
[CV06]




In the Interest of C.P. and B.P., Children             Page 6
