in the Interest of N.J., a Child ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00392-CV
___________________________
IN THE INTEREST OF N.J., A CHILD
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-716584-22
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant C.F. (Mother) attempts to appeal from the trial court’s final “Default
Order of Termination” in a private suit seeking termination of her parental rights to
her daughter N.J. Because Mother did not timely file her notice of appeal, we dismiss
this appeal for want of jurisdiction.
The trial court signed the default order terminating Mother’s parental rights on
July 25, 2022. Because this is an accelerated appeal, Mother’s deadline to file her
notice of appeal was August 15, 2022.1 See Tex. Fam. Code Ann. § 109.002(a-1)
(providing that “[a]n appeal in a suit in which termination of the parent–child
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Mother timely moved for new trial, which the trial court denied. See Tex. R.
Civ. P. 329b(a). In an ordinary civil case, Mother’s filing a new-trial motion would
have extended her notice-of-appeal filing deadline to October 24, 2022. See Tex. R.
App. P. 26.1(a)(1); see also Tex. R. App. P. 4.1(a). But because this is an accelerated
appeal, Mother’s new-trial motion did not extend her appellate deadline. See Tex. R.
App. P. 28.1(b) (stating that filing a new-trial motion “will not extend the time to
perfect an accelerated appeal”); In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005)
(explaining that in an accelerated appeal, absent a timely filed motion for extension of
time to file a notice of appeal under Texas Rule of Appellate Procedure 26.3, “the
deadline for filing a notice of appeal is strictly set at twenty days after the judgment is
signed, with no exceptions”). Additionally, Mother’s timely filed new-trial motion
precludes us from construing Mother’s notice of appeal as a notice of restricted
appeal. See Tex. R. App. P. 26.1(c) (stating that notice-of-appeal deadline for restricted
appeal is six months after judgment is signed), 30 (providing that party who did not
participate in the hearing that resulted in the complained-of judgment and “did not
timely file a postjudgment motion or request for findings of fact and conclusions of
law” may file restricted appeal); cf. M.M.S. v. Tex. Dep’t of Fam. & Protective Servs.,
No. 03-19-00755-CV, 2019 WL 6795867, at *1 n.1 (Tex. App.—Austin Dec. 13, 2019,
no pet.) (mem. op.) (stating that parent’s timely filed request for findings of fact and
conclusions of law in parental-rights-termination case precluded parent from filing a
restricted appeal).
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relationship is ordered” is accelerated and will “follow the procedures for an
accelerated appeal under the Texas Rules of Appellate Procedure”); Tex. R. App. P.
26.1(b) (requiring notice of appeal in an accelerated appeal to be filed within 20 days
after the judgment is signed), 28.1(b) (stating that an accelerated appeal is perfected by
filing a notice of appeal within the time allowed by Rule 26.1(b)), 28.4(a)(1) (providing
that appeals in parental-termination cases are governed by the rules of appellate
procedure for accelerated appeals); see also Tex. R. App. P. 4.1(a) (providing that if due
date falls on a Saturday, Sunday, or legal holiday, it is extended until the next day that
is not a Saturday, Sunday, or legal holiday). Mother did not file her notice of appeal
until October 6, 2022, over 50 days past the notice-of-appeal filing deadline. See Tex.
R. App. P. 26.1(b).
On October 7, 2022, we notified Mother that it appeared we lacked jurisdiction
over this appeal because her notice of appeal was untimely. See Tex. R. App. P. 26.1,
28.4. We warned her that we could dismiss this appeal for want of jurisdiction unless
she or any other party wanting to continue the appeal filed a response within ten days
showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3. More
than ten days have passed, and we have not received a response.
The time for filing a notice of appeal is jurisdictional in this court, and without
a timely filed notice of appeal or a timely filed extension request, we must dismiss the
appeal. See Tex. R. App. P. 2, 25.1(b), 26.1, 26.3; Jones v. City of Houston, 976 S.W.2d
676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Here,
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Mother’s notice of appeal was untimely, and she did not move to extend the appellate
deadline.2 See Tex. R. App. P. 26.1(b), 26.3, 28.1(b), 28.4(a)(1). Accordingly, we
dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); K.A.F.,
160 S.W.3d at 924, 928; In re D.A., No. 02-15-00346-CV, 2015 WL 9244637, at
*1 (Tex. App.—Fort Worth Dec. 17, 2015, no pet.) (mem. op.).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: November 17, 2022
2
A motion for extension of time is necessarily implied when an appellant acting
in good faith files a notice of appeal beyond the time allowed by Rule 26.1 but within
the 15-day period in which the appellant would be entitled to move to extend the
filing deadline under Rule 26.3. See Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at
617; see also Tex. R. App. P. 26.1, 26.3, 28.1(b). But Mother filed her notice of appeal
after the 15-day extension period, and we thus cannot imply an extension motion.
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