Rosalba Hernandez v. Department of Family and Protective Services

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROSALBA HERNANDEZ §
No. 08-12-00128-CV
Appellant, §
Appeal from the
v. §
65th District Court
§
DEPARTMENT OF FAMILY AND of El Paso County, Texas
PROTECTIVE SERVICES, §
(TC# 2012DCM00064)
Appellee. §
OPINION
Rosalba Hernandez seeks to appeal from an interlocutory order entered pursuant to
TEX.FAM.CODE ANN. § 262.2015 (West 2011). We will treat the motion as a petition filed
pursuant to Section 51.014(d)-(f) of the Civil Practice and Remedies Code and TEX.R.APP.P.
28.3. Finding that Section 51.014(d)-(f) does not apply because the underlying suit was brought
under the Family Code, we deny the petition.
On January 3, 2012, the Department of Family and Protective Services filed suit seeking
to terminate the parental rights of Hernandez. The trial court entered an order granting a motion
filed by the Texas Department of Family and Protective Services pursuant to Section 262.2015
of the Texas Family Code because the trial court found that the children’s father had subjected
the children to aggravated circumstances. The order waived the requirements that a service plan
be prepared and from continuing reunification efforts. Additionally, the court ordered that trial
on the merits be accelerated due to the aggravated circumstances finding. On April 18, 2012,
Hernandez filed with the trial court clerk: (1) a motion with the trial court requesting permission
to appeal this interlocutory order; and (2) notice of appeal. On that same date, she filed with this
Court a motion requesting permission to appeal pursuant to Section 51.014(d) of the Civil
Practice and Remedies Code.
Appellate courts generally have jurisdiction over final judgments, and such interlocutory
orders as the Legislature deems appealable by statute. See TEX.CIV.PRAC.&REM.CODE
ANN. § 51.012 and § 51.014 (West Supp. 2011); Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.--
El Paso 1997, no pet.). The interlocutory order Hernandez seeks to appeal is not appealable.
Under the 2011 amendment to Section 51.014(d) of the Civil Practice and Remedies Code, a trial
court may, by written order, permit an appeal from an order that is not otherwise appealable.
TEX.CIV.PRAC.&REM.CODE ANN. § 51.014(d).1 Section 51.014(f) provides that an
appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later
than the 15th day after the date the trial court signs the order to be appealed, files in the court of
appeals having appellate jurisdiction over the action an application for interlocutory appeal
explaining why an appeal is warranted under Subsection (d). Section 51.014(d) does not,
however, apply to an action brought under the Family Code. TEX.CIV.PRAC.&REM.CODE
ANN. § 51.014(d-1).
Even if Section 51.014(d) applied in this case, we would deny the petition because
Hernandez has not obtained the trial court’s permission to appeal. See TEX.R.CIV.P. 168 (“On a
party’s motion or on its own initiative, a trial court may permit an appeal from an interlocutory
order that is not otherwise appealable, as provided by statute. Permission must be stated in the
order to be appealed.”); TEX.R.APP.P. 28.3(a)(“When a trial court has permitted an appeal from
an interlocutory order that would not otherwise be appealable, a party seeking to appeal must
petition the court of appeals for permission to appeal.”). Further, her petition does not comply
1
The amended version of Section 51.014(d) applies here because the suit was filed after September 1, 2011, the
effective date of the amendment to the statute. See Acts 2011, 82nd Leg., ch. 203, § 6.01; Tex.R.App.P. 28.3 cmt.
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with the requirements of Rule 28.3. The petition does not contain: (1) the information required
by TEX.R.APP.P. 25.1(d) to be included in a notice of appeal; and (2) a table of contents, index
of authorities, issues presented, and a statement of facts. See TEX.R.APP.P. 28.3(e)(1), (3). The
petition is also defective because it does not argue clearly and concisely why the order to be
appealed involves a controlling question of law as to which there is a substantial ground for
difference of opinion and how an immediate appeal from the order may materially advance the
ultimate termination of the litigation. See TEX.R.APP.P. 28.3(e)(4). Accordingly, the petition
seeking leave to appeal the interlocutory order is denied.
May 9, 2012
CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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