Motion-Secondary: In The Interest of Allysa Edmiston and Garrett Robinson Children

On May 17, 2016 a Motion-Secondary was filed involving a dispute between Department Of Family And Protective Services, Dfps, and Avis, Allen, Edmiston, Mary, Robinson, Robert, for Child Protective Services in the District Court of Smith County.

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NO. 12-18-00123-CV

IN THE COURT OF APPEA ’L’Mm s ITH C0..TX

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

1N THE INTEREST 0F § APPEAL FROM THE 321ST
A.E. AND G.R., § JUDICIAL DISTRICT COURT

CHILDREN § SMITH C0 UNTY, TEXAS

MEMORA ND UM OPINION
Appellant R.R., acting pro se, ﬁled an interlocutory appeal of the trialcourt’s denial 0f his

Amended Motion to Dismiss. We afﬁrm.

BACKGROUND
R.R. and M.E.' are the parents of G.R. On January 9, 201 7, the Department 0f Family and

Protective Services (the “Department”) ﬁled an original petition for protection 0f A.E.3 and G.R.,

for conservatorship, and for termination of R.R.’s and M.E.’s parental rights. After the adversary

hearing, the trial court appointed the Department as temporary managing conservator of the child.

Both parents were appointed possessory conservators and granted supervised visitation.

Pursuant to the trial court’s order, the parties attended mediation, which took place on
December 28, 2017, resulting in an agreement being reached on all disputed issues. A mediation
settlement agreement (“MSA”) was signed by R.R., M.E., M.E.’s counsel, and the attorney ad

litem for the children. The MSA was ﬁled with the trial court on December 29, 2017, and

contained the panies’ agreements as to the service plans to be completed by both parents. Further,

the parties agreed that if R.R. and M.E. completed their service plans without any “material

M.E. isnot a party t0 this proceeding.

3
A.E. isthe childofM.E. and A.A., and isnot a subject 0fthis proceeding.
violations,” the Department would dismiss claims against them and the children would
,its be
returned to them. However, if R.R. and M.E. “materially” violated the terms of their service plans,

then the Department would appoint non-parents (M.E.’s son and daughter-in-law) that G.R. was
currently placed with as joint managing conservators of the child and the parents as possessory

conservators. Further, the MSA stated in boldfaced type capital letters that “THIS AGREEMENT
IS NOT SUBJECT TO REVOCATION.”
On March 20, 2018, R.R. ﬁled an amended motion to dismiss the case pursuant to the

Texas Citizen’s Participation Act. After a hearing, the trial court denied R.R.’s amended motion
to dismiss. Then, the trialcourt held a hearing on the Department’s motion to enforce the MSA.
At the hearing, RR. informed the trial court that he was withdrawing consent to the MSA. After

the hearing, the trialcourt signed the ﬁnal order in suit affecting the parent—child relationship on
July 12, 2018. The ﬁnal order found that R..R and M.E. violated the terms of the MSA and that
the trialcourt “should issue [the ﬁnal order] pursuant to the [MSA] ﬁled with the Court.” The trial

court ordered that the non-parents be appointed joint managing conservators ofG.R., that R.R. and
M.E. be appointed possessory conservators, that the parents be ordered to pay child support, and
that the parents be granted supervised visitation with the child. This appeal followed.

MEDIATED SETTLEMENT AGREEMENT
The Department argues that R.R.’s agreement to the MSA and his failure to assert any
challenges to its entry waived any alleged complaints against the trialcourt or the Depanment. In

his reply brief, R.R. argues that the trial court erred because the terms of the MSA did not require
him to waive conﬁdentiality in order to submit to a psychological evaluation.

Anglicable Law
A mediated settlement agreement is binding on the parties if the agreement:

(l) provides, in aprominently displayed statement that is inboldfaced type or capital or
letters
underlined, that the agreementisnot subject to revocation;

(2) issigned by each party to the agreement; and

(3) issigned by the party‘s attorney, ifany,
who ispresentat the time the agreementis signed.

See TEX. FAM. CODE ANN. § 153.0071 (d) (West Supp. 201 8). If a mediated settlement agreement
meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement
agreement notwithstanding Rule ll, Texas Rules ofCivil Procedure, or another rule of law. See

id. § 153.0071(e). A ﬁnal judgment rendered pursuant to a mediated settlement agreement must

be in strict 0r literal compliance with that agreement. Vickrey v. Am. Youth Camps, Ina, 532

S.W.2d 292, 292 (Tex. 1976). The trial court has no power t0 supply terms, provisions, or

conditions not previously agreed to by the parties. Keim v.Anderson, 943 S.W.2d 938, 946 (Tex.
App.—El Paso 1997, no writ). Modiﬁcations to settlement agreements are typically grounds for

reversal, however, only where they add terms, signiﬁcantly alter the original terms, or undermine

the intent of the parties. Beyers v.Roberts, 199 S.W.3d 354, 362 (Tex. App.—Houston [lst Dist]

2006, pet. denied). Nonetheless, in rendering judgment on an MSA, trial courts may include terms

necessary to effectuate and implement the parties’ agreement, so long as they do not substantively

alterit. In re Lee, 411 S.W.3d 445, 458 n.17 (Tex. 2013).

Analysis

In his reply brief, R.R. complains that the MSA does not contain any agreement to waive

his mental health information privilege, that the Department violated the terms of the MSA by
adding terms or conditions to the agreement, and that the Department failed to resolve the dispute

between the parties by a conference with the mediator. Rule 38.3 restricts a reply brief to

addressing matters raised in the appellee’s brief. See TEX. R. APP. P. 38.3; In re MD.G., 527
S.W.3d 299, 302 (Tex. App.—E1 Paso 2017, no pet). In other words, Rule 38.3 does not allow

an appellant to raise a new issue in a reply brief in response to a matter pointed out in the appellee’s

brief. See TEX. R. APP. P. 38. 1(1) (requiring appellant’s brief to state “all issues or points presented

for review”), 38.3; Marsh v. Livingston, No. 14-09—0001 1-CV, 2010 WL 1609215, at *4 (Tex.

App.—~Houston [14th Dist] Apr. 22, 2010, pet. denied) (mem. op.).; Priddy v. Rawson, 282
S.W.3d 588, 597 (Tex. App.—Houston [14th Dist] 2009, pet. denied); Bankhead v. Maddox, 135

S.W.3d 162, 164-65 (Tex. App.—Tyler 2004, no pet); Lopez v. Montemayor, 131 S.W.3d 54, 61

(Tex. App.—San Antonio 2003, pet. denied). In its appellee’s brief, the Department argued that

RR. does not challenge the MSA or the trialcourt’s entry ofjudgment based 0n the MSA. The
Department pointing out the lack of R.R.’s argument, however, “does not entitle [R.R.] to assert

that argument for the ﬁrst time in [his] reply brief.” Marsh, 2010 WL 1609215, at *4 (citing

Howell v. Tex. Workers’ Comp. Comm ’n, 143 S.W.3d 416, 439 (Tex. App.—Austin 2004, pet.

denied); and Barrios v.State, 27 S.W.3d 313, 322 (Tex. App.—Houston [lst Dist] 2000, pet.

ref’d)). Therefore, we may only consider the Department’s argument regarding the MSA.
Here, the MSA issigned by both parents, M.E.’s counsel, the Depanment, the attorney ad

litem for the child, and CASA. Further, the MSA states, in bold, capital letters, that it isnot subject

to revocation. Thus, it satisﬁes the requirements of Section 153.007l(d) and the Department is

entitled tojudgment on the MSA. Sec TEX. FAM. CODE ANN. § 153.0071(e). Nonetheless, a trial

court is not required to enforce an MSA that is illegal in nature, procured by fraud, duress,

coercion, or other dishonest means, 0r void against public policy. In re Hanson, N0. 12-14-000 l 5-

CV, 2015 WL 898731, at *2 (Tex. App.—Tyler Feb. 27, 2015, orig. proceeding) (mem. op.); see

In Interest 0f C.C.E., 530 S.W.3d 314, 320 (Tex. App.—Houston [14th Dist] 2017, no pet.).

However, R.R. did not complain that the MSA was illegal in nature, procured by fraud, duress,

coercion, 0r other dishonest means, or void against public policy. Because the MSA met the

statutory requirements, the Depaitment was entitled t0 judgment 0n the MSA notwithstanding

another rule of law, and the trial court had no discretion but to enter judgment on the MSA. See

TEX. FAM. CODE ANN.§ 153.0071(d)-(e); In re Lee, 411 S.W.3d at 453-58.

We note that R.R. did not argue in his initialbrief that the MSA was ambiguous or that the
trial coutt should not have granted the Department’s motion to enter judgment on the MSA.
Therefore, he waived any complaints about the MSA or the judgment entered based on the MSA.

We overrule all of R.R.’s complaints in his reply brief regarding the MSA.

TESTIFYING EXPERT

In his ﬁrst issue, RR. argues that the trialcourt erred by bringing itsown witness in order

to testify regarding his, R.R.’s, alleged drug use. In this case, the trialcourt held an “order to

participate hearing” in November 2016, regarding the parents before the suit for termination was
ﬁled by the Department. The trialcourt telephoned an expen with knowledge of hair follicle drug

tests and exposure to methamphetamine, an issue in R.R.’s case. RR. did not object and questioned

the expert on his opinions regarding the hair follicle tests. As a predicate to presenting a complaint

on appeal, the complaining party must have preserved the error at trial by a proper request,

objection, or motion stating the grounds for the ruling that the party sought from the trialcourt

with sufﬁcient speciﬁcity to make the trialcourt aware of the complaint, and then securing a ruling

on the request, objection, or motion. See TEX. R. APP. P. 33. 1(a)(1)(A), (2);KM v. Tex. Dep’t 0f
Family & Protective Servs., 388 S.W.3d 396, 405 (Tex. App.—El Paso 2012, no pet.). Because
R.R. did not complain or object t0 the trial court’s witness, he waived his ﬁrst issue regarding the

expert witness.

However, R.R. states that because Williams v.Pennsylvania, _U.S._, 136 S. Ct. 1899,

195 L. Ed. 2d 132 (2016), mandates that the trialcourt’s “signiﬁcant, personal involvement in a

critical trial decision, [the trial court’s] failure torecuse .. .presented an unconstitutional risk of

bias.” See id. at 1902. In that case, the then-district attorney approved the prosecutor’s request to

seek the death penalty against the defendant. Id. at 1903. The jury subsequently sentenced the

defendant t0 death. Id. at 1904. Over twenty-six years, the defendant’s conviction and sentence

were upheld on direct appeal, state postconviction review, and federal habeas review. Id. After

an evidentiary hearing based on Pennsylvania’s Post Conviction Relief Act (PCRA), the PCRA
court found that the trialprosecutor suppressed material, exculpatory evidence in violation of

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and engaged in

“prosecutorial gamesmanship.” Id. The court stayed the defendant’s execution and ordered a new
sentencing hearing. Id. The Commonwealth asked the Pennsylvania Supreme Court, whose chief
justice was the former district attorney, t0 vacate the stay of execution. Id. The defendant ﬁled a

response, asking the chiefjustice t0 recuse himself, or if he declined t0 do so, t0 refer the recusal

motion to the ﬁlll court for decision. Id. Without explanation, the chiefjustice denied the motion

for recusal and the request for its referral. Id. The state supreme court then vacated the PCRA
court’s order granting penalty-phase relief and reinstated the defendant’s death sentence. Id. at

1904-05. Two weeks later, the chiefjustice retired from the bench. Id. at 1905.

The Supreme Court held that under the Due Process Clause there isan impermissible risk

0f actual bias when a judge earlier had signiﬁcant, personal involvement as a prosecutor in a

critical decision regarding the defendant’s case. Id. Further, the Court concluded that the chief

justice’s authorization to seek the death penalty against the defendant amounted to a signiﬁcant,

personal involvement in a critical trial decision. Id. at 1907. Accordingly, the Court remanded
the case for proceedings in which the defendant “may present his case with assurance” that no

member of the court is “predisposed to ﬁnd against him.” Id. at 1910 (citing Marshall v. Jerrico,

Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980)).

Here, there is no similarity between Williams and this case. Before the termination suit

was ﬁled, the trial court attempted to determine if R.R. had been using illegal drugs and whether

mere exposure to methamphetamines could cause a positive hair follicle test. In that capacity, the
expert answered the trial coun’s and R.R.’s questions regarding exposure and consumption of

methamphetamine and hair follicle tests. The trial court requested that R.R. submit to another drug

test, that his“level of care” be reviewed, and to return to the court in thirty days. From this record,
we conclude that the trial court did not have signiﬁcant, personal involvement in a critical trial

decision as determined in Williams. See id. at 1907. Thus, Williams is not dispositive. We
overrule R.R.’s ﬁrst issue.

TEXAS CITIZENS PARTICIPATION ACT
In his second and third issues, RR. complains that he is immune from suit for reporting

suspected child sexual abuse, and that the trial court and the Department are prohibited from

punishing him for engaging in protected speech. In his brief, he argues that he isappealing an order

denying his amended motion t0 dismiss ﬁled in accordance with the Texas Citizens Participation

Act (TCPA). The Department argues that the TCPA does not provide an “immunity” for engaging
in retaliatory and false allegations of child sexual abuse, and that RR. was not “punished” for

writing a letter to the Department.

The purpose of the TCPA is to “encourage and safeguard the constitutional rights of

persons t0 petition, speak freely, associate freely, and otherwise participate in government to the

maximum extent permitted by law and, at the same time, protect the rights 0f a person t0 ﬁle

meritorious lawsuits for demonstrable injury.” TEX. ClV. PRAC. & REM. CODE ANN. § 27.002

(West 201 5). Although we construe the TCPA liberally “to effectuate its purpose and intent fully,”

it “does not abrogate 0r lessen any other defense, remedy, immunity, or privilege available under

other constitutional, statutory, case, or common law 0r rule provisions.” Id. § 27.01 l(West 201 5).

The TCPA provides a mechanism for early dismissal of a cause of action that “is based on, relates

to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of

association Id. § 27.003 (West 2015). However, a TCPA motion must be ﬁled “not later than

the 60th day after the date of service 0f the legal action.” Id. § 27.003(b) (West 2015).

Here, the date of service of the relevant legal action, the original petition for protection of

the child, for conservatorship, and for termination 0f R.R.’s parental rights, was January 12, 2017.

Accordingly, R.R. had sixty days from January 12, 2017, to ﬁle a TCPA motion. See id. In his

amended motion to dismiss, R.R. pointed out that he timely ﬁled a motion to dismiss on March 3,

201 7, pursuant to the TCPA. However, that motion, entitled “Objection to Phase Plan and Motion
to Dismiss CPS’ Suit,” stated that the Department’s suit was brought in violation of state law and

that he was immune from the Department’s retaliatory suit as a result of reporting child sexual

abuse. His allegation was comprised of two sentences and did not mention the TCPA, any statute

pertaining to the TCPA, 0r contain any argument regarding the TCPA. The remainder of R.R.’s
motion involved his objection to having “religion” imposed on him by the Department. Because
R.R.’s motion did not mention, refer or present any argument
to, regarding the TCPA, it isnet a
timely ﬁled TCPA motion. See id. There is no other motion in the record, or referred to in R.R.’s

amended motion t0 dismiss, that would qualify as a TCPA motion. Therefore, the trialcourt did

not err in denying R.R.’s amended motion to dismiss pursuant to the TCPA.‘ We overrule R.R.’s
second and third issues.

DEPARTMENT POLICY
In his fourth issue, R.R. argues that state law prohibits the from
trial court making and
enforcing Department policy. However, this argument isinadequately briefed. Rule 38.1(i) of the
Texas Rules of Appellate Procedure requires that an appellant’s brief “contain a clear and concise

argument for the contentions made, with appropriate citations t0 authorities and t0 the record.”

TEX. R. APP. P. 38. 1(i). The appellate court has no duty to brief issues for an appellant. Huey v.

Huey, 200 S.W.3d 85 l,
854 (Tex. App.—Dallas 2006, no pet), The failure to provide appropriate
record citations or a substantive analysis waives an appellate issue. WorldPeace v. Comm’n for
Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist] 2005, pet. denied)
(holding that failure to offer argument, citations to record, or citations to authority waives issue
on
appeal); Med. Specialist Grp., P.A. v. Radiology Assocs., L.L.P., 171 S.W.3d 727, 732 (Tex.
App.—Corpus Christi 2005, pet. denied) (same); see also Fredom'a State Bank Gen. Am.
v. Life

3
Even ifwe were to liberally construe R.R.’s
motion to dismissﬁled on March 2017, as aTCPA
3, motion,
hisargument would stillfail.The record contains no demand from RR. for a hearing under Section 27.003 of the
TCPA as required by Section 27.004(a). See id. §27.003, 27.004(a) (West 2015). According to the statute,that
hearing must not be set later than the “60th day after the date of service ofthe motion.”
Id. § 27.004(a). The record
does not contain any document purporting to set a hearing under the TCPA. Further, the court must rule on a motion
under Section 27.003 “not later than the 30th day following the date ofthe hearing on the motion.”
Id. § 27.005(a)
(West 2015). The record does not contain a ruling on the motion to dismiss under the TCPA. Ifa court does not rule
on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to
have been denied by operation of law and the moving party may appeal. Id. § 27.008(a) (West 2015). Because there
was no ruling by the trial court on R.R.‘s motion to dismiss,
we consider that, if it was a motion under the TCPA, it
was overruled by operation oflaw. However, R.R. did not appeal from any overruling
by operation oflaw as allowed
under section 27.008(a).Id. § 27.008(a).Because R.R.’s amended motion to dismiss was ﬁled outside the time limits
allowed by Section 27.003 and after theMSA had been ﬁled,we consider his amended motion to dismiss as moot.
Ins. Co., 881 S.W.2d 279, 284—85 (Tex. 1994) (holding appellate court has discretion to deem
issues waived due t0 inadequate brieﬁng). References to sweeping statements of general law are

rarely appropriate. Bolling v. Farmers Branch Ind. Sch. Dist., 3 l 5 S.W.3d 893, 896 (Tex. App.—

Dallas 2010, no pet.). Appellate courts must construe brieﬁng requirements reasonably and

liberally, but a party asserting error 0n appeal still must put forth some speciﬁc argument and

analysis showing that the record and the law support itscontentions. San Saba Energ, L.P. v.

Crawford, 171 S.W.3d 323, 338 (Tex. App.—H0uston [14th Dist] 2005, no pet.). An appellate

court has n0 duty—or even right—to perform an independent review 0f the record and applicable

law to determine whether there was error. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El

Paso 2007, no pet.). Were we to do so, we would be abandoning our role as neutral adjudicators

and become an advocate for that party. Id.

Here, R.R. presents a brief conclusory argument for the proposition that the trialcourt was
prohibited from implementing policy for the Department and that the trial coun implemented
“phase plans” that he contends did not appear in the Department’s handbooks. He refers to senate

bills, administrative law, and the government code, but does not explain how those codes prevent

the trial court from implementing Department policy. R.R. does not provide any citations to the

record, any substantive legal analysis, or any citations to authority in support ofhis complaint. See

Amir—Sharif v. Mason, 243 S.W.3d 854, 856 (Tex. App.—Dallas 2008, no pet.) (pro se litigant

held to same standards as licensed attorney and must comply with applicable laws and procedural

rules); see also Sweed v. City ofEl Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.)

(stating that “merely uttering brief conclusory statements” is not a discussion of the facts and

authorities relied upon contemplated by Rule 38). In the absence of any legal analysis, citations

to the record, and citations to appropriate authorities, R.R. presents nothing for our review. See

WorldPeace, 183 S.W.3d at 460; Med. Specialist Grp., 171 S.W.3d at 732. Accordingly, we
overrule R.R.’s fourth issue.

ESTABLISHMENT CLAUSE
In his ﬁfth issue, R.R. complains that the trial court and the Department violated federal

law by ordering R.R. to participate in a religious program, speciﬁcally CoDa. In his objection to

the phase plan and motion to dismiss ﬁled with the trial court, R.R. objected to the service phase

plan and itsrequirement that he attend and participate in CoDa. As previously stated, as a predicate
to presenting a complaint on appeal, the complaining party must have preserved the error at trial

by a proper request, objection, or motion stating the grounds for the ruling that the party sought

from the trialcourt with sufﬁcient speciﬁcity t0 make the trialcourt aware 0f the complaint, and
then securing a ruling on the request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1)(A), (2);

K.M, 388 S.W.3d at 405. Although R.R. requested that the trial court dismiss the suit, the record

does not indicate that he requested a ruling on his objection to the phase plan and contains no order

by the trial court refusing to rule or denying his objections to attending and participating in CoDa.
See Vela v. Manning, 3 14 S.W.3d 693, 694 (Tex. App.—Dallas 2010, pet. denied). Consequently,

he waived his fifth issue on this basis. See TEX. R. APP. P. 33.1(a)(1)(A), (2). Accordingly, we
overrule R.R.’s ﬁfth issue.

DISPOSITION

Having overruled R.R.’s ﬁrst, second, third, fourth, and ﬁfth issues, we afﬁrm the

judgment of the trial court.

GREG NEELEY
Justice

Opinion delivered March 29, 2019.
Panel consisted ofHoy/e, J., and Neeley, J.,
Worthen. C.J.,not participating.

(PUBLISH)

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Motion-Secondary: In The Interest of Allysa Edmiston and Garrett Robinson Children

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