in the Interest of A.B.K., a Minor Child

Dismissed and Opinion Filed May 19, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00128-CV
IN THE INTEREST OF A.B.K., A CHILD
On Appeal from the 470th Judicial District Court
Collin County, Texas
Trial Court Cause No. 470-30142-2019
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
This accelerated appeal arises from a suit by the Texas Department of Family
and Protective Services (Department) seeking the termination of parental rights. See
TEX. R. APP. P. 28.4. On August 21, 2020, the trial court signed an order terminating
the parental rights of A.B.K.’s parents. Appellant, A.B.K.’s maternal grandfather,
filed a petition in intervention requesting that the termination order be vacated and
that he be appointed sole managing conservator of the child. The prospective
adoptive parents also filed a petition in intervention requesting that they be appointed
joint managing conservators of the child. After the adoption was finalized, the
Department filed a motion to dismiss its “conservatorship as to the child.” The trial
court granted the motion and dismissed the conservatorship on December 1, 2020.
Appellant then filed both an amended petition in intervention and a motion for new
trial on December 18, 2020. Appellant also filed a notice of restricted appeal of the
dismissal order on February 26, 2021.
By letter dated April 14, 2021, we questioned our jurisdiction over this
accelerated appeal. We instructed appellant to file a letter brief with an opportunity
for appellees to respond.
Appeals in parental termination cases are accelerated. See TEX. R. APP. P.
28.4(a)(1). A “parental termination case” means a suit in which termination of the
parent-child relationship is at issue. See id. 28.4(a)(2)(A). In an accelerated appeal,
a notice of appeal is due within twenty days or, with an extension motion, thirty-five
days after the date the judgment is signed. See id. 26.1(b), 26.3. In the absence of a
timely notice of appeal, this Court lacks jurisdiction over the appeal. See Brashear v.
Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—
Dallas 2009, no pet.) (op. on reh’g) (timely filing of notice of appeal is
jurisdictional).
In his letter brief, appellant agrees this is not a proper restricted appeal because
he filed a timely motion for new trial. See TEX. R. APP. P. 25.1(7)(B) (restricted
appeal not available if party files timely post-judgment motion). However, he asserts
the appeal is a timely regular appeal because it was filed within ninety days of the
date of the order. See id. 26.1. We disagree. In his petition in intervention that was
appellant’s live pleading when the trial court signed the dismissal order, appellant
sought to vacate the trial court’s August 21, 2020 final order terminating the parental
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rights of A.B.K.’s parents. Thus, termination of the parent-child relationship was
still at issue. For this reason, this appeal is controlled by rule 28.4(a)(1)’s accelerated
designation. See id. 28.4(a)(1), (a)(2)(A).
The cases appellant relies on in his letter brief are inapplicable because they
concern the sufficiency of the notice of appeal instead of the timeliness of the notice
of appeal. See In re J.M., 396 S.W.3d 528, 531 (Tex. 2013) (combined motion for
new trial and notice of appeal sufficient to invoke appellate court’s jurisdiction);
Warwick Towers Council of Co-Owners v. Paul Warwick, L.P., 244 S.W.3d 838,
839 (Tex. 2008) (per curiam) (insurer made bona fide attempt to appeal by filing
notice of appeal in name of its insured).
Appellant’s notice of appeal was due December 21, 2020 or, with an extension
motion, January 5, 2021. See TEX. R. APP. P. 26.1(b), 26.3. The notice of appeal
filed on February 26, 2021 was untimely and failed to invoke this Court’s
jurisdiction. Accordingly, we dismiss the appeal. See id. 42.3(a).
/Bill Pedersen, III//
200128f.p05 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.B.K., A On Appeal from the 470th Judicial
CHILD District Court, Collin County, Texas
Trial Court Cause No. 470-30142-
No. 05-21-00128-CV 2019.
Opinion delivered by Justice
Pedersen, III. Justices Partida-
Kipness and Goldstein participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee the Texas Department of Family and Protective
Services recover its costs of this appeal from appellant James Edward Moya, Jr.
Judgment entered this 19th day of May 2021.
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