In the Interest of J.M.

396 S.W.3d 609, 2012 Tex. App. LEXIS 7444, 2012 WL 3793265
CourtCourt of Appeals of Texas
DecidedAugust 30, 2012
DocketNo. 12-11-00319-CV
StatusPublished
Cited by2 cases

This text of 396 S.W.3d 609 (In the Interest of J.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of J.M., 396 S.W.3d 609, 2012 Tex. App. LEXIS 7444, 2012 WL 3793265 (Tex. Ct. App. 2012).

Opinion

MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.

K.S. appeals the termination of her parental rights. In four issues, K.S. challenges the order of termination. We dismiss for want of jurisdiction.

Background

K.S. is the mother of two children, J.M., born January 27, 2006, and Z.M., born January 14, 2010. J.D.M.1 is the father of J.M., and C.M., aka C.S., is the father of Z.M.2 Neither father is a party to this appeal. Approximately two months after Z.M. was born, the Department of Family and Protective Services (the Department) filed an original petition for protection of J.M. and Z.M., for conservatorship, and for termination of K.S.’s parental rights. The Department was appointed temporary managing conservator of J.M. and Z.M., and K.S. was appointed temporary posses-sory conservator.

At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that K.S. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights pursuant to Section 161.001(1) of the Texas Family Code. The trial court also determined that termination of the parent-child relationship between J.M., Z.M., and K.S. was in the children’s best interest. Based on these findings, the trial court ordered that the parent-child relationship between J.M., Z.M., and K.S. be terminated. Before the termination order was signed, K.S. filed a motion for new trial or, in the alternative, notice of appeal (the “motion”). Further, she filed a request for findings of fact and conclusions of law and a notice of past due findings of fact and conclusions of law. The trial court did not file findings of fact or conclusions of law. The district clerk forwarded K.S.’s motion to this court as a notice of appeal.

Jurisdiction

In its cross-issue, the Department argues that K.S. has failed to invoke the jurisdiction of this court. More specifical[611]*611ly, the Department contends that KS.’s motion for new trial with an alternative notice of appeal is a conditional notice of appeal that does not express her present intent to perfect an appeal. Therefore, it argues further, the instrument is not a bona fide attempt to invoke appellate jurisdiction. In her reply brief, K.S. disagrees, arguing that this court has jurisdiction over her appeal because she filed a timely notice of appeal.

Applicable Law

The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination of the parent-child relationship is in issue. Tex. Fam.Code Ann. § 109.002(a) (West Supp.2012). In an accelerated appeal, the notice of appeal must be filed within twenty days after the judgment or order is signed. Tex.R.App. P. 26.1(b). Filing a motion for new trial, any other post-trial motion listed in Rule 26.1(a), or a request for findings of fact will not extend the time to perfect an accelerated appeal. Tex.R.App. P. 28.1(b); see also Tex.R.App. P. 26.1(a) (stating that post-trial motions include a motion for new trial, a motion to modify the judgment, a motion to reinstate, and a request for findings of fact and conclusions of law. A prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal. Tex.R.App. P. 27.1(a).

Times for filing a notice of appeal are mandatory and jurisdictional; absent a timely filed notice of appeal or a timely extension request, we must dismiss the appeal. See Tex.R.App. P. 25.1(b), 26.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). It is well-settled law that a court of appeals has jurisdiction over an appeal if the appellant timely files an instrument in a bona fide attempt to invoke the appellate court’s jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex.2005). The factor that determines whether jurisdiction has been conferred on an appellate court is not the form or the substance of the instrument, but whether it “was filed in a bona fide attempt to invoke appellate court jurisdiction.” Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex.1989) (quoting United Ass’n of Journeymen & Apprentices v. Borden, 160 Tex. 203, 328 S.W.2d 739, 741 (Tex.1959)); see Warwick Towers Council of Co-Owners v. Park Warwick, LP, 244 S.W.3d 838, 839 (Tex.2008). A motion for new trial is not an instrument that may be considered a bona fide attempt to invoke the appellate court’s jurisdiction. In re K.A.F., 160 S.W.3d at 927.

Analysis

Here, K.S. filed a document entitled “Respondent’s Motion for New Trial or, in the alternative, Notice of Appeal.” That document states as follows:

COMES NOW, the Respondent [K.S.], by and through Counsel in the above-styled and numbered matter, and would show this Honorable Court:
After a contested revocation hearing held September 8th, 2011 (six days prior to the filing of this motion) Respondent’s parental rights were terminated.
Respondent files her Motion for New Trial or in the alternative Notice of Appeal pursuant to § 263.405 of the Texas Family Code.
Respondent respectfully moves this Court to accept the original affidavit of indigency since testimony at the hearing established Respondent is still unemployed and no material change in her financial status has occurred.
Respondent respectfully requests a new trial or in the alternative presents [612]*612her Notice of Appeal to present her wishes to appeal this case to the 12th Judicial District Court of Appeals, Tyler, Texas.
Respondent’s point of issue is the trial court’s termination of Respondent’s parental rights without the benefit of extending the proceedings an additional six months in order for Respondent to adequately show the Court her rehabilitation, ability to work her Family Service Plan and ability to provide a safe and stable home for the children.
WHEREFORE, PREMISES CONSIDERED, Respondent respectfully moves this Court to grant her a new trial or in the alternative, provides herein formal Notice of Appeal.

KS.’s motion for new trial, standing alone, may not be considered a bona fide attempt to invoke appellate jurisdiction. See id. K.S. contends, however, that the inclusion of an alternative notice of appeal shows that she filed the document in a bona fide attempt to invoke this court’s jurisdiction. We disagree.

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396 S.W.3d 609, 2012 Tex. App. LEXIS 7444, 2012 WL 3793265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jm-texapp-2012.