In re Interest of S.W.

614 S.W.3d 311

In the INTEREST OF S.W., a Child

No. 02-20-00159-CV

Court of Appeals of Texas, Fort Worth.

Delivered: November 19, 2020

ATTORNEY FOR APPELLANT: ALI CROCKER RUSSELL, CROCKER RUSSELL & ASSOCIATES, MANSFIELD, TX.

ATTORNEY FOR APPELLEE: THOMAS M. MICHEL, GRIFFITH, JAY & MICHEL, LLP, FORT WORTH, TX.

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

Opinion by Chief Justice Sudderth

This is a restricted appeal from a default judgment terminating a mother's and unknown biological father's parental rights in a suit brought by a private adoption agency instead of the Department of Family and Protective Services. In four issues with several arguments, Mother and a man claiming to be the child S.W.'s biological father (Father) challenge the validity of the affidavit of relinquishment Mother signed the day before appellee Little Flower Adoptions filed suit. Mother and Father include several arguments within their issues, contending that (1) Mother did not have the capacity to execute the affidavit, (2) Mother had crossed out part of the affidavit's language before signing it, and the unedited version of the affidavit that Little Flower filed with its petition was not the correct version, (3) Mother revoked the affidavit after signing it, (4) Little Flower coerced Mother into signing the affidavit, (5) counsel whom Mother and Father had hired after entry of the termination judgment was ineffective for failing to timely move for a new trial, and (6) Mother and Father were not provided notice of the final trial setting. We affirm the trial court's judgment as to Mother and dismiss Father's restricted appeal for want of jurisdiction.

I. Background

On October 9, 2019, Little Flower filed a petition to terminate Mother's parental rights to S.W. alleging that Mother had (1) voluntarily left S.W. alone or in the possession of another not the parent and expressed an intent not to return or, alternatively, (2) executed an irrevocable affidavit of relinquishment of her parental rights in accordance with the Family Code. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(A), (K), 161.103. The petition also alleged that S.W.'s biological father was unknown; had not (or would not have by the time of trial) registered with the State's paternity registry; and should have his parental rights terminated as well. See id. §§ 160.301–.302, 161.002(b)(3). Little Flower sought to be named S.W.'s managing conservator. The affidavit of relinquishment attached to the petition indicated that Mother "freely and voluntarily waive[d] and g[a]ve up [her] right to the issuance, service, and return of citation, notice, and all other process in any termination suit." The affidavit is dated three days after S.W.'s birth but the day before Little Flower filed suit.

On November 8, 2019, the trial court held a final hearing and signed an order terminating Mother's and the unknown alleged biological father's parental rights. The final order (1) states that Mother "waived issuance of service of citation by Waiver contained in her Mother's Affidavit of Relinquishment of Parental Rights to a licensed Child Placing Agency and did not otherwise appear" and (2) recites that "[t]he Court further finds that all persons entitled to citation were properly cited or have waived citation in the manner provided by law, and that all persons entitled to notice have been notified to the extent required by law." The order also indicates that "[a] jury was waived" and that a record "was waived by the parties with the consent of the Court."

The trial court found both conduct allegations for Mother to be true, found that no man had registered with the State's paternity registry claiming to be S.W.'s father, and found that termination of Mother's and the unknown biological father's rights was in S.W.'s best interest. See id. §§ 161.001(b)(1)(A), (K), (b)(2), 161.002(b)(3). The trial court further named Little Flower as S.W.'s managing conservator and sealed all the case records.

On June 3, 2020, Mother and Father untimely moved for a new trial asking the trial court to set aside the termination order because they claimed that Little Flower had acted deceptively in obtaining the affidavit of relinquishment and termination order. See Tex. R. Civ. P. 329b(a). Mother and Father also alleged that they had not received proper notice of the final trial setting. Mother and Father both signed affidavits that were attached to the motion along with other evidence. The trial court did not rule on the motion for new trial.¹

On June 16, 2020, Mother and Father filed a "Petition for Restricted Appeal." In this court, they filed a motion for an extension of time to file a restricted appeal, which was granted. See Tex. R. App. P. 26.3 ; Supreme Court of Tex., Seventeenth Emergency Order Regarding the COVID-19 State of Disaster, Misc. Dkt. No. 20-9071, 2020 WL 6390650 (May 26, 2020).

II. Elements of Restricted Appeal

To prevail in this restricted appeal, Mother and Father must show that (1) they timely filed their notice of restricted appeal; (2) they were parties to the underlying suit; (3) they 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 or a notice of appeal within the time permitted by Rule 26.1(a); and (4) error is apparent from the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique , 134 S.W.3d 845, 848 (Tex. 2004) ; Inlog, Inc. v. Ryder Truck Rental, Inc. , No. 02-19-00283-CV, 2020 WL 1887846, at *1 (Tex. App.—Fort Worth Apr. 16, 2020, no pet.) (mem. op.). The first three elements are necessary to invoke our restricted-appeal jurisdiction, but the fourth is not.

Ex parte E.H. , 602 S.W.3d 486, 496 (Tex. 2020).²

III. Jurisdiction Over Mother's Appeal

Little Flower contends as a preliminary matter that Mother cannot meet the jurisdictional prerequisite of showing that she did not participate in the final termination hearing because she signed an affidavit of relinquishment. In other words, it contends that Mother's election not to participate was in itself an act of participation. Such an argument is not only illogical, it defies common sense and negates the plain meaning of the word "participate." For example, one would not say that an invited guest participated in a wedding by RSVP'ing "no" and declining to attend. In support of its argument, Little Flower cites our sister court's holding in In re B.H.B. , 336 S.W.3d 303, 304–06 (Tex. App.—San Antonio 2010, pet. denied).³

We decline to follow B.H.B. It is undisputed here that Mother was not present at the final termination hearing, and the plain language of the affidavit she signed indicates that she did not want to, or intend to, participate in the final trial. Thus, we hold that Mother did not participate in the decision-making event resulting in the termination order and, therefore, that Mother has shown that we have jurisdiction over her restricted appeal.⁴ See, e.g., Cummings v. Billman , No. 02-20-00034-CV, 2020 WL 938172, at *3 (Tex. App.—Fort Worth Feb. 27, 2020, order) (construing rule of appellate procedure according to its plain language); In re Norris , 371 S.W.3d 546, 553 (Tex. App.—Austin 2012, orig. proceeding) (same).

IV. No Jurisdiction Over Father's Appeal

Father, on the other hand, has not shown that we have jurisdiction over his restricted appeal. The trial court's judgment recites that at the time of the final hearing, no man had filed a paternity acknowledgement in the State's paternity registry, and nothing in the record shows that Father had been named a party or had made an appearance in the suit. Accordingly, Father was not a party to the underlying suit, and we cannot consider his restricted appeal. See In re C.R.G. , No. 05-16-01490-CV, 2017 WL 526611, at *2 (Tex. App.—Dallas Feb. 9, 2017, no pet.) (mem. op.) ; In re Baby Girl S. , 353 S.W.3d 589, 590–91 (Tex. App.—Dallas 2011, no pet.).⁵

V. No Error on Face of Record

All four of Mother's issues rely solely on evidence attached to the untimely motion for new trial.⁶ But in determining whether error is apparent on the face of the record, we may not consider evidence that was not before the trial court when it rendered the final judgment. McCoy v. McCoy , No. 02-17-00275-CV, 2018 WL 5993547, at *2 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.). Although the untimely motion for new trial is included in the clerk's record of this case, it was not properly before the trial court; thus, we cannot consider it. See Duncan v. Educap, Inc. , No. 01-19-00023-CV, 2020 WL 5048139, at *3 (Tex. App.—Houston [1st Dist.] Aug. 27, 2020, no pet. h.) (mem. op.) ; Asset Protection & Sec. Servs. v. Armijo , 570 S.W.3d 377, 385–86 (Tex. App.—El Paso 2019, no pet.) ; ID/Guerra LP v. Tex. Workforce Comm'n , 317 S.W.3d 898, 901–03 (Tex. App.—Austin 2010, no pet.). We thus overrule Mother's four issues.

VI. Conclusion

Having overruled Mother's four issues, we affirm the trial court's judgment terminating Mother's parental rights. We dismiss Father's appeal for want of jurisdiction.

1 Mother and Father also filed a bill of review. Their appeal from the trial court's denial of the bill of review is pending in this court's cause number 02-20-00160-CV.

2 In Ex parte E.H. , the Texas Supreme Court clarified that although language in Brown v. McLennan County Children's Protective Services "suggested" that the fourth element of a restricted appeal is jurisdictional, it is not. 602 S.W.3d at 496 (citing Brown , 627 S.W.2d 390, 392 (Tex. 1982) ). Nevertheless, Brown 's ultimate holding on the merits remains undisturbed.

3 In B.H.B. , the San Antonio court of appeals held that a mother who signed an affidavit of relinquishment had participated in the termination trial even though she did not actually appear because in the affidavit the mother had (1) agreed to relinquish her parental rights and duties, (2) confirmed that she understood...