in the Interest of A.B.G., a Child

• Court: Court of Appeals of Texas
• Decided: October 14, 2020
• Docket: 10-20-00247-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00247-CV

IN THE INTEREST OF A.B.G., A CHILD

From the County Court at Law No. 1 Brazos County, Texas Trial Court No. 20-001430-CV-CCL1

MEMORANDUM OPINION

On July 1, 2020, the trial court signed its order terminating the parental rights of

appellants, Teresa Nicole Guajardo and Abel Benjamin Casas, based on the fact that both

Guajardo and Casas had “executed an unrevoked or irrevocable affidavit of

relinquishment of parental rights as provided for by chapter 161 of the Texas Family Code

. . . .” Two days after the trial court signed its order of termination, both Guajardo and

Casas attempted to revoke their affidavits of relinquishment and filed a joint motion to

dismiss the original petition in suit affecting the parent-child relationship. Guajardo and

Casas also filed briefs arguing that the trial court had plenary power to modify its July 1,

2020 termination order and that their motion to dismiss should be considered as a motion for new trial. In an email dated September 14, 2020, the trial court denied Guajardo and

Casas’s joint motion to dismiss, stating that the trial court “lost plenary power 30 days

after signing the Order of Termination in this cause. No further action will be taken.” In

response to this email, Guajardo and Casas filed a joint request for findings of fact and

conclusions of law.

On September 21, 2020, Guajardo and Casas filed a joint notice of appeal with the

Brazos County District Clerk’s Office. In their joint notice of appeal, Guajardo and Casas

indicated that they desired to appeal from the trial court’s July 1, 2020 order of

termination and that this appeal is accelerated. See TEX. FAM. CODE ANN. § 263.405(a)

(providing that an appeal from an order terminating parental rights “is governed by the

procedures for accelerated appeals in civil cases under the Texas Rules of Appellate

Procedure”). Texas Rule of Appellate Procedure 26.1(b) provides that the notice of appeal

in accelerated cases must be filed within twenty days after the judgment or order is

signed. See TEX. R. APP. P. 26.1(b). Furthermore, the filing of a “motion for new trial, any

other post-trial motion, or a request for findings of fact will not extend the time to perfect

an accelerated appeal.” Id. at R. 28.1(b). Therefore, because more than twenty days

elapsed between July 1, 2020 and September 21, 2020, Guajardo and Casas’s joint notice

of appeal is untimely. Moreover, because the notice of appeal is more than fifteen days

past the date it was due, Guajardo and Casas cannot rely on the “implied” motion for

extension under Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). And finally, the

In the Interest of A.B.G., a child Page 2 filing of the post-judgment motion to dismiss by Guajardo and Casas did nothing to

extend the appellate deadline. See TEX. R. APP. P. 28.1(b).

By letter dated September 25, 2020, the Clerk of this Court notified Guajardo and

Casas that their joint notice of appeal is untimely and that this appeal will be dismissed

unless, within ten days of September 25, 2020, a response is filed showing grounds for

continuing the appeal. Guajardo and Casas timely filed a response to our September 25,

2020 letter.

In their response, Guajardo and Casas argue that the trial court’s July 1, 2020

termination order is void or voidable because the order failed to include mandatory

language from section 263.405(b), which provides as follows:

A final order rendered under this subchapter must contain the following prominently displayed statement in boldfaced type, in capital letters, or underlined: “A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT-CHILD RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN THE DISMISSAL OF THE APPEAL.”

TEX. FAM. CODE ANN. § 263.405(b).

While Guajardo and Casas are correct that the trial court’s July 1, 2020 termination

order does not include the mandatory language from section 263.405(b), they have not

adequately explained how the exclusion of this language makes their notice of appeal

timely to invoke this court’s jurisdiction. Without jurisdiction, we cannot determine the In the Interest of A.B.G., a child Page 3 impact, if any, the omission of the referenced language has on the judgment.

Accordingly, because Guajardo and Casas’s joint notice of appeal was not filed within

the deadline for accelerated appeals, we conclude that this appeal is untimely and,

therefore, dismiss this appeal for want of jurisdiction. See Wilkins v. Methodist Health Care

Sys., 160 S.W.3d 559, 563 (holding that, absent a timely notice of appeal, this Court is

without jurisdiction to consider an appeal).

JOHN E. NEILL Justice

Before Chief Justice Gray Justice Davis, and Justice Neill Appeal dismissed Opinion delivered and filed October 14, 2020 [CV06]

In the Interest of A.B.G., a child Page 4