in the Interest of R. A. A., T. J. A. and S. M. A., Children ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-19-00213-CV
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IN THE INTEREST OF Appeal from the
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R.A.A., T.J.A., and S.M.A., 65th District Court
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Children. of El Paso County, Texas
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(TC# 2018DCM5057)
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MEMORANDUM OPINION
Appellant has filed a motion to dismiss this parental termination appeal, stating that the
notice of appeal was prematurely filed as the trial court has not yet rendered a final judgment in
this case.1
1
On July 26, 2018, the Texas Department of Family and Protective Services filed an Original Petition for Protection
of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. The parties
listed to be served were L.M. (Mother) and R.A. (Father). On July 16, 2019, the trial court issued an order titled
“Interlocutory Order of Termination on [Mother]” in which Mother’s parental rights were terminated. The order did
not discuss Father. The clerk’s record filed in this case shows that after the notice of appeal was filed in this case, the
trial court issued a “Permanency Hearing Order Before Final Order” in which the trial court stated that Mother “had
her parental rights terminated by interlocutory order signed July 15, 2019” but that Father’s parental rights remained
intact. This order noted that the date of dismissal for the cause was set for January 24, 2020, and that trial was set for
December 13, 2019.
We note that prior to 2007, former TEX.FAM.CODE ANN. § 263.401(d) made it possible in a termination case brought
by the Department for there to be a final order that did not dispose of all parties and claims. See In re J.D., 304 S.W.3d
522, 526 (Tex.App.—Waco 2009, no pet.). However, the Legislature amended the statute in 2007 to remove
Subsection (d). See id. (recounting legislative history)(Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1999
TEX.GEN.LAWS 2108, 2113, replealed by Act of June 15, 2007, 80th Leg., R.S., ch. 866, § 5, 2007 TEX.GEN.LAWS
Rule 42.1(a) governs voluntary dismissals in civil cases.2 That rule states:
In accordance with a motion of appellant, the court may dismiss the appeal . . .
unless such disposition would prevent a party from seeking relief to which it would
otherwise be entitled.
TEX.R.APP.P. 42.1(a).
Granting dismissal in this case would not prejudice the rights of the Appellee in this appeal.
Therefore, the Appellant’s motion for voluntary dismissal is GRANTED.
September 25, 2019
YVONNE T. RODRIGUEZ, Justice
Before Rodriguez, J., Palafox, J., and Barajas, Senior Judge
Barajas, Senior Judge (Sitting by Assignment)
1837, 1838). Since the Legislature removed Subsection (d), courts now use the ordinary final judgment standard in
determining whether a termination order is actually final for purposes of appeal, i.e., whether it disposes of all parties
and all claims. See id.; see also In Interest of C.M., No. 01-15-00830-CV, 2016 WL 1054589, at *5 (Tex.App.—
Houston [1st Dist.] Mar. 17, 2016, no pet.)(mem. op.).
We express no opinion on whether any of the orders identified above are final or interlocutory because such a
determination is unnecessary to the resolution of this motion; Mother (the Appellant) has elected to voluntarily dismiss
her appeal, which is her right under TEX.R.APP.P. 42.1(a).
2
As a basis for the motion to dismiss, Appellant cites TEX.R.APP.P. 27.1, which deals with prematurely filed notices
of appeal. That rule states:
(a) Civil Cases. In a civil case, 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.
Rule 27.1 deals with how the Court calculates appellate deadlines when a notice of appeal is filed before a final order
is signed. However, Rule 42.1(a) sets the standard for when an appellant can voluntarily dismiss his or her own appeal
in a civil case.
2