In re D.M., 10-06-00407-CV.

• Citation: 244 S.W.3d 397
• Decision Date: 15 August 2007
• Docket Number: No. 10-06-00407-CV.,10-06-00407-CV.
• Parties: In the Interest of D.M. and W.M., Children.
• Court: Court of Appeals of Texas

244 S.W.3d 397

In the Interest of D.M. and W.M., Children.

No. 10-06-00407-CV.

Court of Appeals of Texas, Waco.

August 15, 2007.

Dissenting Opinion on Rehearing December 12, 2007.

Richard G. Ferguson, Waco, for appellant.

John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.

C. Kevin Keathley, Law Office of C. Kevin Keathley, Waco, for ad litem.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

PER CURIAM.

Rhonda Moncrief brings this appeal from a decree terminating her parental rights. The judgment is affirmed. See Lozano v. Lozano, 52 S.W.3d 141, 143-44 (Tex.2001) (per curiam); see also Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 2727, 33 L.Ed.2d 346 (1972) (per curiam); Gilles v. Ware, 615 A.2d 533, 534 (D.C.1992) (per curiam).

Chief Justice GRAY concurs.

Justice REYNA concurs.

Justice VANCE dissents.

TOM GRAY, Chief Justice, concurring.

The three opinions in this case are all worth study and analysis for a number of reasons. They present issues seldom presented and difficult to resolve as evidenced by the fact that no combination of two of the three judges could agree on how to properly dispose of this appeal. As the third to draft on the issues, I agree with some of each of the opinions presented by Justices Vance and Reyna. I also disagree with each. Because we all three would stop our analysis at different places for various reasons, I felt it was appropriate to address only the single issue" I would decide, jurisdiction, and to concede that while technically this would mean I should vote for dismissal rather than affirmance, why I have made this a concurring rather than a dissenting opinion.

JURISDICTION

Notice of appeal of a judgment which terminates the parent-child relationship, as an accelerated appeal, TEX. FAM.CODE ANN. §§ 109.002(a), 263.405(a) (Vernon 2002 & Supp.2006), must be given within 20 days of the date of the judgment. TEX.R.APP. P. 26.1(b). While a late filed notice implies a motion for extension of time, Verburgt v. Dorner, 959 S.W.2d 615, 616-617 (Tex. 1997), a reasonable explanation for the late filing must still be provided. Id.; In the Interest of B.G., 104 S.W.3d 565, 567 (Tex. App.-Waco 2002, no pet.) (reasonable explanation given); see In the Interest of K.A.J., No. 10-07-00110-CV, 2007 WL 1704815, *1, 2007 Tex.App. LEXIS 4629, * 1-2 (Tex.App.-Waco June 13, 2007, no pet.) (mem. op.) (no reasonable explanation given; appeal dismissed); In the Interest of A.L.B., 56 S.W.3d 651, 652 (Tex.App.-Waco 2001, no pet.) (same).

In this appeal, the notice was filed late but, because it was filed within 15 days of the due date, a motion for extension was properly implied. The explanation provided for the late filing is that the attorney was not advised of the client's desire to appeal until the date the notice was filed, whereupon the notice was immediately prepared and filed. I do not find this explanation a reasonable explanation for late filing.¹

The purpose of the deadline is to require a decision regarding appeal and pursuit of it within the time period provided. The extension is not to allow more time to make the decision. If some event had occurred which had delayed the making of the decision, the communication of the decision to the attorney, or the attorney's preparation and filing of the notice of appeal, a description of that event may suffice as a reasonable explanation. But we have none of that. All we have is that the notice of appeal was filed on the date the decision to appeal was communicated to the attorney. That date was late for the filing of the notice of appeal. Accordingly, I would dismiss this appeal because the late notice of appeal does not invoke our appellate jurisdiction.²

MY VOTE AND TIRE JUDGMENT

If we have jurisdiction, and we do not, if we considered her due process issue, which we could if we had jurisdiction, and if we sustained her due process issue, which we should not, we would then have to decide the merits of her sole issue which is: the trial court erred in failing to extend the final disposition date for 180 days (so that she could have yet another six months in which to bring herself into compliance with the service plans which she had failed to do during the twelve months prior to the requested extension). Neither Justice Vance nor Justice Reyna discuss this issue. Because of the split between the three justices on the proper disposition of the appeal, Justice Vance could proceed with the analysis of the, merits of the issue. He may decide, as I have, that the issue should be overruled. If he did, he could conclude that the judgment should be affirmed, thus casting-the second direct vote for an affirmance, albeit for an entirely different reason than Justice Reyna.

And there is nothing, however, to be achieved by further delay in this already tardy disposition of a termination proceeding by me conducting a full-blown discussion and analysis of the argument and authorities cited by the parties. It is sufficient to state that, after careful consideration of the issue, as ably presented and argued in the briefs of the parties, I would overrule the sole issue and affirm the trial court's judgment—if I ever reached this point in the analysis.

Because I have determined we have no jurisdiction for the reasons stated, I would dismiss this proceeding But because there would be no majority to vote for a judgment if I voted to dismiss, Justice Vance votes to reverse, and Justice Reyna votes to affirm; and further because the result of a dismissal is functionally equivalent to a judgment of affirmance because the trial court's judgment remains undisturbed, to facilitate the disposition of this appeal as quickly as possible so as to bring certainty to the lives of these two young children, I concur in the judgment which affirms the trial court's judgment terminating the parental rights.

FELIPE REYNA, Justice, concurring.

Rhonda Moncrief contends in her sole issue that the court abused its discretion by refusing her request for a 180-day extension under section 263.401(b) of the Family Code. I concur in the judgment affirming the termination decree because Moncrief did not specifically present this issue to the trial court in a timely filed statement of points. See Tn. FAM.CODE ANN. § 263.405(b), (i) (Vernon Supp.2006). Thus, she has not properly preserved this issue for appellate review. Id. § 263.405(i); In re J.W.H., 222 S.W.3d 661, 662 (Tex.App.-Waco 2007, no pet.); In re A.H.L., 214 S.W.3d 45, 54 (Tex.App.-El Paso 2006, pet. denied); In re C.M., 208 S.W.3d 89, 92 n. 3 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

I disagree with the Chief Justice's concurring opinion because I believe Moncrief provided a reasonable explanation for the late filing of her notice of appeal. Under Verburgt v. Dorner, an extension motion is implied if a notice of appeal is filed within fifteen days after it was due. 959 S.W.2d 615, 617 (Tex.1997); see also Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex.2003) (per curiam). Although the motion is implied, the appellant must also provide a reasonable explanation for the late filing to avoid dismissal of the appeal. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 571 (Tex.App.-Houston [1st Dist.] 2007, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex.App.-Waco 2002, order); see also Hone, 104 S.W.3d at 886-87.

In Hone, the Supreme Court discussed what it means for an appellant to provide a "reasonable explanation" in this context.

We first considered the meaning of "reasonably explain" in Meshwert v. Meshwert, 549 S.W.2d 383, 383-84 (Tex. 1977) (discussing Texas Rule of Civil Procedure 21c—Rule [of Appellate Procedure] 26.3's predecessor). We held that a reasonable explanation is "any plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance." Id. at 384. In Garcia v. Kastner Farms, Inc., we applied the Meshwert standard to all cases in which an appellant fails to file a notice of appeal timely. 774 S.W.2d [668] at 669-70 [(Tex.1989)]. We explained that, "[w]hile the definition of reasonable explanation is settled, the courts of appeals have not applied the definition consistently." at 669-70. We emphasized that, under the liberal standard of review applied in these cases, "[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance ...." Id. at 670.

Hone, 104 S.W.3d at 886-87 (some citations omitted); accord Doe, 226 S.W.3d at 571; B.G., 104 S.W.3d at 567.

Here, in response to a notice from the Clerk of this Court, Monerief's appellate counsel provided the following explanation for her untimely notice of appeal:

Moncrief did not inform trial counsel ... of her desire to appeal, until Friday afternoon, December 8, 2006. [Trial counsel] immediately drafted a Notice of Appeal and filed it that same day, and moved the trial court that same day to appoint appellate counsel. Thus, the reason for the delay in filing the Notice was the fact that the Respondent did not inform trial counsel to appeal until December 8, 2006. It is not unusual for a party to not understand the importance of deadlines in legal proceedings. Once trial counsel became aware that an appeal was desired, he filed for it at once, still within the extension period. (citations to record omitted)

Moncrief's court-appointed trial counsel filed the notice of appeal eleven days after it was due and contemporaneously with a motion to withdraw because he does "not handle appeals." However, appellate counsel was not appointed until after the deadline for filing an extension motion.

From trial counsel's letter to the trial court explaining the reasons for the withdrawal, it appears that trial counsel did not understand the applicable deadlines for...