in the Interest of R.S.D. a Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
June 9, 2014
No. 04-13-00665-CV
IN THE INTEREST OF R.S.D. a child,
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-PA-00894
Honorable H. Paul Canales, Judge Presiding
ORDER
This is an appeal from the July 17, 2013 final order terminating appellant’s parental
rights. TEX. FAM. CODE ANN. § 263.405 (West Supp. 2013). Appellant filed a pro se notice of
appeal on September 18, 2013, after expiration of the deadlines for filing a motion for extension
and the notice of appeal. See TEX. R. APP. P. 26.1(b), 26.3. In response to our show cause order,
appellant replied in writing that she did not receive notice of the signed final judgment until
September 9, 2013, when she received a copy of the final judgment from the caseworker for the
Department of Family & Protective Services. Construing appellant’s pro se response as a Rule
4.2 motion for additional time to perfect her appeal based on lack of notice of the signed
judgment, we abated the appeal to the trial court to determine the date on which appellant or her
attorney first either (i) received the district clerk’s notice of the signed judgment or (ii) acquired
actual knowledge of the signed judgment. See TEX. R. APP. P. 4.2 (extending the appellate
timetable for perfecting an appeal due to lack of notice of the signing of the judgment); TEX. R.
CIV. P. 306a(4).
The trial court has held a series of hearings on the matter, with the State presenting
evidence of the date the district clerk mailed out notice of the judgment at the February 26, 2014
hearing, appellant testifying by telephone at the March 31, 2014 hearing, and appellant’s trial
attorney, Mr. David Kaliski, appearing in person at the May 2, 2014 hearing. A supplemental
clerk’s record was filed on March 12, 2014 containing the trial court’s partial findings of fact
stating that: (1) trial on the merits was heard on June 21, 2013; (2) all parties and their attorneys
were present either in person or by telephone; (3) judgment was rendered in open court at the
conclusion of the trial; (4) the final judgment was signed on July 17, 2013; (5) on July 18, 2013,
the district clerk sent notice of the judgment pursuant to Rule 306a to all attorneys of record,
including the appellant’s attorney, and to appellant; and (6) the attorney ad litem for the child
received the notice of judgment in July 2013. A second supplemental clerk’s record filed on
May 8, 2014 contains supplemental findings of fact by the trial court stating in relevant part that:
(1) appellant appeared by telephone at the March 31, 2014 hearing; (2) appellant testified that
she received a copy of the Order of Termination on or about August/September 2013 from the
caseworker assigned to this case; (3) on the date of trial on the merits, appellant was incarcerated
at the Plane State Jail and participated in the trial by telephone; (4) appellant was transferred to a
prison facility in Lockhart in July 2013; and (5) trial counsel for appellant, Mr. David Kaliski,
appeared in person at the May 2, 2014 hearing on this matter and testified that he does not recall
receiving the district clerk’s Rule 306a notice of the judgment or receiving a copy of the signed
judgment, he does not have a copy of the signed judgment in his file, and he did not sign the
judgment or appear on the date the judgment was signed.
Based on the record before us, we conclude that there is no evidence that appellant’s
attorney received notice of the signed judgment and that the evidence shows appellant first
received notice and acquired knowledge of the signed final judgment in September 2013 and
filed a notice of appeal on September 18, 2013, within twenty days of the date of such notice.
See TEX. R. APP. P. 4.2, 26.1(b); TEX. R. CIV. P. 306a(4). Therefore, appellant timely perfected
her appeal from the final order of termination signed on July 17, 2013.
The trial court has appointed an attorney, Mr. Joe Bohac, 111 Soledad, Suite 300, San
Antonio, TX 78205 to represent appellant in this appeal. Accordingly, this appeal is
REINSTATED on this court’s docket. The appellant’s brief is due twenty (20) days from the
date of this order.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 9th day of June, 2014.
___________________________________
Keith E. Hottle
Clerk of Court