Opinion
05-23-01142-CV
12-20-2023
IN THE INTEREST OF Z.A.-R, A CHILD
On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-22-00707
ORDER
AMANDA L. REICHEK, JUSTICE.
As ordered by this Court, the trial court made a finding that Bryan Adamson is representing appellant in this accelerated appeal involving the termination of parental rights. However, Mr. Adamson has informed the Court that he was hired only to draft the motion for new trial and that he does not handle appeals. Mr. Adamson further informed the Court that he thought Frank Adler had been appointed to represent appellant. The record before this Court reflects that the trial court did appoint Mr. Adler to represent appellant but rescinded the appointment by order signed on November 8, 2023.
So that this appeal can proceed, we ORDER the trial court to appoint counsel to represent appellant. The order appointing counsel shall be signed no later than DECEMBER 28, 2023. This is an accelerated appeal with a 180-day disposition deadline. Until counsel is appointed, this Court is unable to resolve the initial jurisdictional issue addressed below. Accordingly, the trial court shall appoint counsel who can promptly attend to this appeal.
We ORDER Dallas County District Clerk Felicia Pitre to file, no later than December 29, 2023, a supplemental clerk's record with the trial court's order appointing counsel.
Regarding our jurisdiction over this appeal, we note the following. On November 10, 2023, appellant filed a notice of appeal of the trial court's October 31, 2023 judgment terminating her parental rights. However, the trial court signed a decree of termination on August 21, 2023, and no post-judgment plenary-power extending motion was filed. Thus, the October 31st judgment is void because it was signed after the trial court's plenary power expired. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam) ("Judicial action taken after the court's jurisdiction over a cause has expired is a nullity."). Accordingly, the notice of appeal in this accelerated appeal was due September 11, 2023. See Tex. R. App. P. 4.1; 26.1(b).
Upon further review of the clerk's and reporter's records, we note that appellant did not participate either in person or through counsel at trial, appellant did not timely file a post-judgment motion, request for findings of fact and conclusions of law, or a notice of appeal. Thus, it appears this appeal may proceed as a restricted appeal. See Tex. R. App. P. 30; Int. of S.W., 614 S.W.3d 311, 315 (Tex. App.-Fort Worth 2020, no pet.).
Because the notice of appeal does not include the necessary contents for a restricted appeal, we DIRECT newly appointed counsel for appellant to file, no later than January 5, 2024, an amended notice of appeal. See Tex. R. App. P. 25.1(d)(7) (specifying contents for notice of restricted appeal). Should appellant fail to do so, we may dismiss the appeal for want of jurisdiction because the notice of appeal was untimely. See Tex. R. App. P. 26.1(b) (in accelerated appeal, notice of appeal due within twenty days of date of judgment); 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).
We ORDER the trial court to provide newly appointed counsel with a copy of this order.
We DIRECT the Clerk of this Court to send a copy of this order to the Honorable Cheryl Lee-Shannon, Presiding Judge of the 305th Judicial District Court; Ms. Pitre; Bryan Adamson; Frank Adler; and counsel for appellee.