in the Interest of S.D., J.D., and G.D., Children

Court of Appeals of Texas·Decided December 7, 2018·No. 05-18-00809-CV·Published

Opinion

AFFIRMED; Opinion Filed December 7, 2018

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-18-00809-CV

IN THE INTEREST OF S.D., J.D., AND G.D., CHILDREN

On Appeal from the 304th Judicial District Court Dallas County, Texas

Trial Court Cause No. JC-16-01098-W

MEMORANDUM OPINION

Before Justices Lang, Myers, and Stoddart Opinion by Justice Myers

Father appeals the trial court’s judgment terminating the parent-child relationships between

him and his three children. Mother appeals the trial court’s order denying her motion for further orders. We affirm the trial court’s orders.

BACKGROUND

In November 2016, the Department of Family and Protective Services removed the children from their parents’ care. Father had driven recklessly and attempted to evade arrest while driving a car with his three-year old child in the car and without the child being in a car seat. The police also found methamphetamine in the car. Both Mother and Father had used drugs while caring for the children. The trial court ordered Mother and Father to complete services. Father successfully completed the services required by this initial order, but Mother did not. In 2017, the parties reached a mediated settlement agreement (MSA 1), agreeing that Father would have a monitored return of the children. One of the conditions of the agreement was that Father would

not allow Mother to reside with him and the children. The children were returned to Father’s custody pursuant to MSA 1. The Department again removed the children when Father allowed Mother to move in with him and the children and Mother was using methamphetamine. The trial court ordered Mother and Father to complete additional services, but neither parent successfully completed them.

In March 2018, the parties signed a second mediated settlement agreement (MSA 2). In this agreement, Mother and Father agreed to termination of the parent-child relationships based on section 161.001(b)(1)(O) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (failure to complete court-ordered services). The Department agreed to a home study of Alexandria Rogers, who lived in Oregon, as a possible person to take custody of the children. The Department made an Interstate Compact Placement Request with the State of Oregon to conduct the home study. If the home study was not approved or if Rogers withdrew her request for the home study, then the Department promised to use its best efforts to place J.D. and G.D. in the same home for adoption. The Department also promised to use best efforts to find an adoptive placement that would allow Mother and Father post-termination access to the children once each year and allow them to send the children cards, letters, and pictures four times each year. Mother and Father and the other parties to the agreement “stipulate[d] that termination is in the best interest of the children.”

The trial of the case, which included the prove-up of MSA 2, was held before the court on April 23, 2018. At the trial, the caseworker testified Father violated the trial court’s orders by allowing Mother to move in with him and the children. The caseworker also testified Father failed to complete any of the services ordered after the children were removed the second time. She also testified about the Department’s plans for placement and the eventual adoption of the children, and she testified that MSA 2 was in the children’s best interest. The CASA supervisor testified and

the guardian ad litem attorney for the children stated that MSA 2 was in the best interest of the children. Neither of the parents testified at the trial. The trial court signed the “Agreed Order of Termination,” which was the judgment terminating the parent-child relationships between appellants and the children and appointing the Department to be the children’s permanent managing conservator.

FATHER’S APPEAL

Father brings three issues on appeal contending (1) the evidence is legally and factually insufficient to support the trial court’s finding of termination under section 161.001(b)(1)(O); (2) the evidence is legally and factually insufficient to support the trial court’s finding that termination was in the best interest of the children; and (3) MSA 2 was void because it forbade a clear-and-convincing best-interest determination at the final hearing.

Jurisdiction

The State asserts this Court lacks jurisdiction over this appeal because Father did not timely file his notice of appeal and the notice of appeal is defective. The trial court signed the termination order on April 23, 2018. Father’s notice of appeal was due twenty days later. See FAM. § 109.002(a-1) (termination cases “shall follow the procedures for an accelerated appeal under the Texas Rules of Appellate Procedure”); TEX. R. APP. P. 26.1(b) (“in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed”); see also TEX. R. APP. P. 26.3 (time to file notice of appeal may be extended up to fifteen days). Father filed his notice of appeal on July 13, 2018, which was eighty-one days after April 23, 2018.

Father argues his appeal is a restricted appeal under rule 30. See TEX. R. APP. P. 30; see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.012, .013. This Court has previously permitted restricted appeals from judgments terminating parental rights. See In re J.A.M.R., 303 S.W.3d 422, 424 (Tex. App.—Dallas 2010, no pet.). A restricted appeal affords a party who did not

participate at trial the opportunity to correct an erroneous judgment. To prevail in a restricted appeal, the appellant must establish that he filed a notice of appeal within six months of the date the judgment was signed, he was a party to the underlying lawsuit, he did not participate in the hearing that resulted in the judgment or timely file any postjudgment motions or requests for findings of fact and conclusions of law, and error is apparent on the face of the record. TEX. R. APP. P. 30; Fid. & Guar. Ins. Co. v. Drewery Constr. Co. Inc., 186 S.W.3d 571, 573 (Tex. 2006) (per curiam).

In this case, Father filed his notice of appeal eighty-one days after the judgment, which complies with the requirement that the notice of appeal be filed within 180 days. The State asserts the notice of appeal is defective because it did not contain the language required by Rule of Appellate Procedure 25.1. See TEX. R. APP. P. 25.1(d)(7). However, Father has amended his notice of appeal, and it now complies with rule 25.1.

Father did not appear in person or through counsel at the trial, and he did not file any post-

judgment motions or request findings of fact and conclusions of law. The State argues Father participated in the hearing that resulted in the judgment by signing the mediated settlement agreement. “[T]he question is whether the appellant has participated in ‘the decision-making event’ that results in judgment adjudicating the appellant’s rights.” Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). “[A] party who has taken part in all steps of a summary judgment proceeding except the hearing on the motion has participated in the ‘actual trial’ that determined the parties[’] rights.” Id. (citing Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985)).

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