Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-25-00803-CV
IN THE INTEREST OF E.J.S., a Child
From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 19-041 Honorable Kirsten Cohoon, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Adrian A. Spears II, Justice
Delivered and Filed: June 10, 2026
APPEAL DISMISSED FOR LACK OF JURISDICTION
This is an attempted restricted appeal from a judgment terminating parental rights. Because
appellant does not satisfy one of the jurisdictional requirements for a restricted appeal, we dismiss
the appeal for lack of jurisdiction.
BACKGROUND
Appellant (mother) and appellee (father) are the parents of E.J.S., a minor child. Under the
terms of an agreed modification order, appellant was the child’s possessory conservator and
appellee was the child’s sole managing conservator. Both appellant and appellee filed petitions
seeking to modify the terms of the agreed modification order. On May 28, 2025, the trial court 04-25-00803-CV
signed an order setting the case for final hearing on July 17, 2025. The trial court clerk notified the
parties of the setting.
On July 1, 2025, appellant filed a pleading asking the trial court to terminate her parental
rights to E.J.S. The pleading, which contains a verification, stated that appellant would not be
present at the final hearing. It further asked the trial court to terminate appellant’s parental rights
in her absence and stated that appellant would no longer participate in the proceedings and would
not be available for service, contact, or future litigation.
The following day, the trial court clerk sent an email to appellant asking her to file an
affidavit in support of her request for termination of her parental rights. The email, which was sent
to the address provided by appellant, was returned with a message stating that appellant’s email
address was terminated. Appellant did not withdraw her pleading requesting termination, nor did
she file a separate affidavit in support of her termination request.
On July 17, 2025, the trial court held a final hearing. Although appellee appeared at the
hearing in person and through counsel, appellant did not appear. At the hearing, the trial court
asked appellee’s counsel to submit a proposed judgment terminating appellant’s rights. On
September 17, 2025, the trial court signed a judgment terminating appellant’s parental rights and
denying all other relief requested but not expressly granted.
Appellant did not file a timely notice of appeal challenging the termination judgment. See
TEX. R. APP. P. 26.1(a) (stating notice of appeal must generally be filed within 30 days after the
judgment is signed). However, on December 12, 2025, appellant filed a timely notice of restricted
appeal. See TEX. R. APP. P. 26.1(c) (requiring notice of restricted appeal to be filed within six
months after the judgment is signed).
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DISCUSSION
To prevail in this restricted appeal, appellant must demonstrate: (1) her notice of restricted
appeal was filed within six months of the date of the judgment or order; (2) she was a party to the
suit; (3) she did not participate in the hearing that resulted in the judgment complained of, and did
not file a timely post-judgment motion or request for findings of facts and conclusions of law; and
(4) error is apparent from the face of the record. See TEX. R. APP. P. 30; Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
In his briefing, appellee urges us to dismiss this appeal because appellant does not satisfy
the third requirement for a restricted appeal—non-participation in the hearing that resulted in the
judgment. The non-participation requirement is jurisdictional, meaning that an appellant who fails
to satisfy it is precluded from challenging the judgment via restricted appeal. See Ex parte E.H.,
602 S.W.3d 486, 497 (Tex. 2020).
Because trial courts decide cases in a myriad of procedural settings, the nature and extent
of participation precluding a restricted appeal in any particular case is a matter of degree. Texaco,
Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The question is whether the
appellant participated in the decision-making event that resulted in the judgment adjudicating
appellant’s rights. Id. Participation in the decision-making event may take place when the appellant
signs or otherwise signals her approval of the judgment prior to its entry, even though not present
at the hearing where judgment is rendered. Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.—Austin
2009, no pet.); Pierce v. Abbott, No. 04-98-00150-CV, 1998 WL 201583, at *1 (Tex. App.—San
Antonio 1998, no pet.) (not designated for publication) (concluding party’s absence at the hearing
where divorce decree was signed did not negate participation, and holding waiver of citation,
-3- 04-25-00803-CV
making of record, and consenting to terms of divorce decree amounted to participation precluding
review by restricted appeal).
In In re B.H.B., 336 S.W.3d 303 (Tex. App.—San Antonio 2010, pet. denied), we held that
a similarly situated appellant—a mother who had signed an affidavit requesting termination of her
parental rights—participated in the decision-making event that resulted in a termination judgment
even though she was not present at the hearing where termination was ordered. In that case, the
mother signed a “very detailed affidavit of relinquishment of her parental rights” before the
termination lawsuit was filed. Id. at 305. Her affidavit included statements that she “freely and
voluntarily relinquish[ed] to [father] all [her] parental rights and duties” and “fully underst[ood]
that a lawsuit will be promptly filed in a court of competent jurisdiction to forever terminate the
parent-child relationship between [her] and [her] children.” Id. at 305-06. Her affidavit also stated
that the mother did not want to be informed about the lawsuit any further and she agreed that a
final hearing could be held at any time without further notice to her. Id. at 306. On these facts, we
concluded that the mother signaled her agreement to the termination by signing the affidavit of
relinquishment. Id. We explained that the mother’s affidavit “made the termination possible.” Id.
Because the mother participated in the decision-making event that resulted in the termination
judgment, we held that she did not satisfy the non-participation requirement for a restricted appeal
and we dismissed her appeal for lack of jurisdiction. Id.
Here, appellant filed a pleading titled “Petition for Voluntary Termination of Parental
Rights,” which stated:
There is a hearing scheduled on July 17, 2025. I will not be appearing. I will no longer participate in these proceedings. I will not be available for service, contact, or future litigation.
I consent to the Court terminating my parental rights at that hearing in my absence.
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....
I understand this decision is permanent. I understand I will lose all legal rights to my [child], including custody, visitation, decision-making, and access. ....
WHEREFORE, PREMISES CONSIDERED, I, [appellant], respectfully request the Court:
1. GRANT this Petition for Voluntary Termination of Parental Rights;
2.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-25-00803-CV
IN THE INTEREST OF E.J.S., a Child
From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 19-041 Honorable Kirsten Cohoon, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Adrian A. Spears II, Justice
Delivered and Filed: June 10, 2026
APPEAL DISMISSED FOR LACK OF JURISDICTION
This is an attempted restricted appeal from a judgment terminating parental rights. Because
appellant does not satisfy one of the jurisdictional requirements for a restricted appeal, we dismiss
the appeal for lack of jurisdiction.
BACKGROUND
Appellant (mother) and appellee (father) are the parents of E.J.S., a minor child. Under the
terms of an agreed modification order, appellant was the child’s possessory conservator and
appellee was the child’s sole managing conservator. Both appellant and appellee filed petitions
seeking to modify the terms of the agreed modification order. On May 28, 2025, the trial court 04-25-00803-CV
signed an order setting the case for final hearing on July 17, 2025. The trial court clerk notified the
parties of the setting.
On July 1, 2025, appellant filed a pleading asking the trial court to terminate her parental
rights to E.J.S. The pleading, which contains a verification, stated that appellant would not be
present at the final hearing. It further asked the trial court to terminate appellant’s parental rights
in her absence and stated that appellant would no longer participate in the proceedings and would
not be available for service, contact, or future litigation.
The following day, the trial court clerk sent an email to appellant asking her to file an
affidavit in support of her request for termination of her parental rights. The email, which was sent
to the address provided by appellant, was returned with a message stating that appellant’s email
address was terminated. Appellant did not withdraw her pleading requesting termination, nor did
she file a separate affidavit in support of her termination request.
On July 17, 2025, the trial court held a final hearing. Although appellee appeared at the
hearing in person and through counsel, appellant did not appear. At the hearing, the trial court
asked appellee’s counsel to submit a proposed judgment terminating appellant’s rights. On
September 17, 2025, the trial court signed a judgment terminating appellant’s parental rights and
denying all other relief requested but not expressly granted.
Appellant did not file a timely notice of appeal challenging the termination judgment. See
TEX. R. APP. P. 26.1(a) (stating notice of appeal must generally be filed within 30 days after the
judgment is signed). However, on December 12, 2025, appellant filed a timely notice of restricted
appeal. See TEX. R. APP. P. 26.1(c) (requiring notice of restricted appeal to be filed within six
months after the judgment is signed).
-2- 04-25-00803-CV
DISCUSSION
To prevail in this restricted appeal, appellant must demonstrate: (1) her notice of restricted
appeal was filed within six months of the date of the judgment or order; (2) she was a party to the
suit; (3) she did not participate in the hearing that resulted in the judgment complained of, and did
not file a timely post-judgment motion or request for findings of facts and conclusions of law; and
(4) error is apparent from the face of the record. See TEX. R. APP. P. 30; Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
In his briefing, appellee urges us to dismiss this appeal because appellant does not satisfy
the third requirement for a restricted appeal—non-participation in the hearing that resulted in the
judgment. The non-participation requirement is jurisdictional, meaning that an appellant who fails
to satisfy it is precluded from challenging the judgment via restricted appeal. See Ex parte E.H.,
602 S.W.3d 486, 497 (Tex. 2020).
Because trial courts decide cases in a myriad of procedural settings, the nature and extent
of participation precluding a restricted appeal in any particular case is a matter of degree. Texaco,
Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The question is whether the
appellant participated in the decision-making event that resulted in the judgment adjudicating
appellant’s rights. Id. Participation in the decision-making event may take place when the appellant
signs or otherwise signals her approval of the judgment prior to its entry, even though not present
at the hearing where judgment is rendered. Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.—Austin
2009, no pet.); Pierce v. Abbott, No. 04-98-00150-CV, 1998 WL 201583, at *1 (Tex. App.—San
Antonio 1998, no pet.) (not designated for publication) (concluding party’s absence at the hearing
where divorce decree was signed did not negate participation, and holding waiver of citation,
-3- 04-25-00803-CV
making of record, and consenting to terms of divorce decree amounted to participation precluding
review by restricted appeal).
In In re B.H.B., 336 S.W.3d 303 (Tex. App.—San Antonio 2010, pet. denied), we held that
a similarly situated appellant—a mother who had signed an affidavit requesting termination of her
parental rights—participated in the decision-making event that resulted in a termination judgment
even though she was not present at the hearing where termination was ordered. In that case, the
mother signed a “very detailed affidavit of relinquishment of her parental rights” before the
termination lawsuit was filed. Id. at 305. Her affidavit included statements that she “freely and
voluntarily relinquish[ed] to [father] all [her] parental rights and duties” and “fully underst[ood]
that a lawsuit will be promptly filed in a court of competent jurisdiction to forever terminate the
parent-child relationship between [her] and [her] children.” Id. at 305-06. Her affidavit also stated
that the mother did not want to be informed about the lawsuit any further and she agreed that a
final hearing could be held at any time without further notice to her. Id. at 306. On these facts, we
concluded that the mother signaled her agreement to the termination by signing the affidavit of
relinquishment. Id. We explained that the mother’s affidavit “made the termination possible.” Id.
Because the mother participated in the decision-making event that resulted in the termination
judgment, we held that she did not satisfy the non-participation requirement for a restricted appeal
and we dismissed her appeal for lack of jurisdiction. Id.
Here, appellant filed a pleading titled “Petition for Voluntary Termination of Parental
Rights,” which stated:
There is a hearing scheduled on July 17, 2025. I will not be appearing. I will no longer participate in these proceedings. I will not be available for service, contact, or future litigation.
I consent to the Court terminating my parental rights at that hearing in my absence.
-4- 04-25-00803-CV
....
I understand this decision is permanent. I understand I will lose all legal rights to my [child], including custody, visitation, decision-making, and access. ....
WHEREFORE, PREMISES CONSIDERED, I, [appellant], respectfully request the Court:
1. GRANT this Petition for Voluntary Termination of Parental Rights;
2. TERMINATE my parental rights to [E.J.S.] at the July 17, 2025 hearing without requiring my appearance. . . .
Below a paragraph with the heading “Verification,” appellant electronically signed the pleading
“under penalty of perjury.”
After filing her termination pleading, appellant underscored the finality of her request by
discontinuing her email address, thereby preventing any communications from the trial court clerk.
Appellant never withdrew her termination pleading. Consistent with the representations in her
pleading, appellant did not appear at the July 17, 2025 hearing.
In her reply brief, appellant attempts to distinguish her case from In re B.H.B. by focusing
on the type of document she signed. Appellant points out that, unlike the mother in In re B.H.B.,
she did not sign an affidavit of voluntary relinquishment of parental rights pursuant to section
161.103 of the Texas Family Code. 1 See TEX. FAM. CODE § 161.103. However, our analysis In re
B.H.B. was not based on the affidavit’s compliance with section 161.103. In fact, our opinion made
no mention of section 161.103. Instead, our analysis was based on the contents of the mother’s
affidavit and whether the mother signaled her agreement to the termination of her parental rights
by signing that document. Both the mother in In re B.H.B. and the appellant in the present case
1 Titled “Affidavit of Voluntary Relinquishment of Parental Rights,” section 161.103 sets out the procedural and substantive requirements for an affidavit of voluntary relinquishment of parental rights. See TEX. FAM. CODE § 161.103.
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signed documents that unequivocally communicated their requests for termination of their parental
rights and demonstrated their understanding of the consequences of their requests. The fact that
appellant asked for termination of her parental rights in a pleading instead of an affidavit is not
determinative. Like the affidavit signed by the mother in In re B.H.B., appellant’s pleading “made
the termination possible.” See 336 S.W.3d at 306. Appellant’s unwithdrawn signed pleading
asking for termination of her parental rights was the catalyst for the trial court’s termination
judgment.
We conclude appellant participated in the decision-making event that resulted in the
termination judgment. See id.; Pierce, 1998 WL 201583, at *1 (holding that by waiving citation
and the making of a record and consenting to terms of divorce decree, party participated in the
proceedings to an extent sufficient to preclude her from obtaining appellate review by restricted
appeal). Because appellant does not satisfy the non-participation requirement for a restricted
appeal, this appeal is dismissed for lack of jurisdiction.
Adrian A. Spears II, Justice
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