Opinion
No. 07-20-00267-CV
12-18-2020
In the MATTER OF A.S.H., a Juvenile
Seth E. Lujan, for Appellant. Cheryl Nelson, for Appellee. Seth E. Lujan, Civil - Ad Litem for H., A. S.
Seth E. Lujan, for Appellant.
Cheryl Nelson, for Appellee.
Seth E. Lujan, Civil - Ad Litem for H., A. S.
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
OPINION ON ORDER ON MOTION TO DISMISS
Lawrence M. Doss, Justice Appellant, A.S.H., a juvenile, appeals from the trial court's orders of adjudication and disposition. Now pending before this Court is a motion to voluntarily dismiss the appeal filed by A.S.H.'s counsel. Because the motion to dismiss does not demonstrate that A.S.H. has waived her right to appeal in accordance with section 51.09 of the Family Code, we deny the motion.
To protect the privacy of the minor involved, we refer to her by her initials. See Tex. R. App. P . 9.8(c).
Following bench hearings, the trial court found A.S.H. had engaged in delinquent conduct and committed her to the Lubbock County Juvenile Justice Center for completion of a residential treatment program. The trial court also placed A.S.H. on probation until her eighteenth birthday. A.S.H. was appointed appellate counsel and appealed the trial court's orders. Her counsel has now submitted a motion to voluntarily dismiss the appeal. The motion is not signed by A.S.H.
Under the Family Code, a juvenile has a statutory right to appeal adjudication and disposition orders. TEX. FAM. CODE ANN . § 56.01(c) (West Supp. 2020). Upon entering an appealable order, the trial court is required to advise the child and the child's parent of the right to appeal, to representation by appellate counsel, and to appointed counsel if indigent. TEX. FAM. CODE ANN . § 56.01(d), (e). If the child and parent desire to appeal, the trial court is required to appoint counsel "unless the right to appeal is waived in accordance with Section 51.09." TEX. FAM. CODE ANN . §§ 56.01(f), 51.09. Section 51.09 provides that any constitutional or statutory rights granted to a juvenile may be waived if: "(1) the waiver is made by the child and the attorney for the child; (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it; (3) the waiver is voluntary; and (4) the waiver is made in writing or in court proceedings that are recorded." TEX. FAM. CODE ANN . § 51.09 (West 2014).
A.S.H.'s motion to dismiss is governed by Rule of Appellate Procedure 42.1. See TEX. FAM. CODE ANN . § 56.01(b) (providing that the requirements governing juvenile appeals "are as in civil cases generally"). Rule 42.1 permits an appellant's counsel to submit a voluntary motion to dismiss without the signature of the appellant. TEX. R. APP. P . 42.1(a)(1). However, the rule does not address whether a juvenile who has exercised his statutory right to appeal by filing a notice of appeal must thereafter waive that right in accordance with section 51.09 of the Family Code. In re E.J.E. , 557 S.W.3d 615, 616 (Tex. App.—El Paso 2017, order). This Court has yet to speak on the issue, but other appellate courts have required an affirmative waiver of the juvenile's right to appeal pursuant to section 51.09 before granting a voluntary motion to dismiss. See In re J.Z. , No. 08-19-00049-CV, 2019 WL 3812365, at *1, 2019 Tex. App. LEXIS 7120, at *1 (Tex. App.—El Paso Aug. 14, 2019, no pet.) (mem. op.) (concluding that a motion to dismiss including waiver language and signed by the juvenile sufficiently showed waiver per section 51.09 ); In re C.A. , Nos. 02-19-00060-CV, 02-19-00061-CV, 2019 WL 1716337, 2019 Tex. App. LEXIS 3151 at *1 n.1, (Tex. App.—Fort Worth Apr. 18, 2019, no pet.) (per curiam) (mem. op.) (granting voluntary motions to dismiss after remanding to the trial court to determine whether the juvenile waived his right to appeal); In re C.G. , No. 05-16-00288-CV, 2016 WL 1756785, at *1, 2016 Tex. App. LEXIS 4580, at *1 (Tex. App.—Dallas May 2, 2016, no pet.) (mem. op.) (dismissing appeal pursuant to appellate rule 42.1 after the juvenile waived his right to appeal on remand before the trial court).
Appellate courts have held that section 51.09 does not apply when a juvenile has not timely filed a notice of appeal. See In re C.W. , No. 05-04-00674-CV, 2004 WL 2849150, at *2-3, 2004 Tex. App. LEXIS 11156, at *6-7 (Tex. App.—Dallas Dec. 13, 2004, pet. denied) (mem. op.).
We agree with our sister courts and conclude that section 51.09 of the Family Code requires an affirmative waiver of the right to appeal before we may dismiss a juvenile's appeal pursuant to Rule of Appellate Procedure 42.1. Therefore, when a juvenile seeks to voluntarily dismiss an appeal, the motion to dismiss must (a) include the appropriate waiver language of section 51.09 and be signed by the juvenile; (b) be supported by a waiver of the right to appeal, complying with section 51.09, as an exhibit to the motion; or (c) demonstrate that the juvenile has waived the right to appeal on the record before the trial court. See In re E.J.E. , 557 S.W.3d at 617.
Because the motion to dismiss submitted by A.S.H.'s counsel does not show that A.S.H. has waived her right to appeal in accordance with section 51.09 of the Family Code, we deny the motion without prejudice to its refiling.
It is so ordered.