In re J.L., 04-0307.

• Citation: 163 S.W.3d 79
• Decision Date: 17 June 2005
• Docket Number: No. 04-0307.,04-0307.
• Parties: In the Interest of J.L., a Child.
• Court: Supreme Court of Texas

Page 79

163 S.W.3d 79

In the Interest of J.L., a Child.

No. 04-0307.

Supreme Court of Texas.

Argued November 30, 2004.

Decided April 8, 2005.

Rehearing Denied June 17, 2005.

John F. Healey Jr., Dist. Atty., David Christopher Newell, Catherine Lisa Fisher, Fort Bend County Asst. Dist. Attys., Richmond, Fred M. Felcman, Rosenberg, for the Texas Department of Protective and Regulatory Services.

Samuel Leon Childs, Houston, for J.L.

R.S. (Steve) Monks, Stephen A. Doggett, Richmond, for Betty Chavez.

Teana Viltz Watson, Sugar Land, for Chris Edwards.

Pat King, Richmond, pro se.

Justice MEDINA delivered the opinion of the Court.

In this termination-of-parental-rights case, we decide three issues: (1) whether the notice of appeal was timely filed within 20 days of the date of the modified final judgment; (2) whether the court of appeals erred in taking judicial notice of expert testimony that was not presented in the trial court; and (3) whether the evidence was legally sufficient to support the jury's finding that parental rights should be terminated. We conclude, as did the court of appeals, that the appeal was perfected timely. We, however, also conclude that the court of appeals erred in its analysis of the legal sufficiency of the evidence supporting termination and should not have taken judicial notice of expert testimony. Accordingly, we reverse the judgment of the court of appeals but remand the case to that court for its review of the factual sufficiency of the evidence supporting termination.

I

This case concerns the parental rights of Bettina Lohner Chavez, who had two children out of wedlock with Chris Edwards: J.L., who was born in October 1995, and Hallie, who was born in September 1997. Bettina subsequently met Frank Chavez, whom she and her two children began living with in March 1998. In October 1999, Bettina gave birth to Frank's child. Two months later Frank lost his job and became the primary caretaker for all three children. On April 15, 2000, Bettina and Frank were married.

On May 3, 2000, while Frank was taking care of the children, Hallie became ill with a fever and nausea, which caused her to vomit several times. That night, Bettina noticed Hallie was having trouble breathing and had turned blue. Bettina called 911, and Frank began to perform CPR on Hallie. CPR was continued unsuccessfully in the ambulance, and Hallie was pronounced dead at the hospital.

A couple of weeks later, Bettina and Frank were arrested in connection with Hallie's death and criminal charges were filed. Dr. Patricia Moore, who performed Hallie's autopsy, concluded that Hallie's death was a homicide caused by blunt force trauma to the abdomen. The Texas Department of Protective and Regulatory Services (the Department) took possession of the children, placing J.L. with his biological father, Chris Edwards, and the infant with Frank's sister.

The Department thereafter filed suit to terminate the parental rights of Frank and Bettina. The Department claimed their rights should be terminated because Frank had allegedly caused Hallie's death and Bettina had knowingly endangered the children by leaving them in Frank's care when she knew of the danger he posed. The criminal charges remained pending at the time of this trial but were subsequently dismissed. The parental termination charges, however, were tried to a jury which found that (1) the parent-child relationship between Bettina and J.L. should be terminated; (2) Chris Edwards should be appointed J.L.'s sole managing conservator; (3) Bettina and Frank's parent-child relationship with the infant should not be terminated; and (4) Bettina and Frank should be appointed the infant's sole managing conservators.

The trial court rendered judgment on the jury's verdict, terminating Bettina's parental rights to J.L. Bettina appealed. The Department chose not to appeal the jury's failure to terminate Bettina and Frank's parental rights to the infant.

The court of appeals, after taking judicial notice of the testimony of an expert witness in Frank's criminal prosecution, concluded the evidence was legally insufficient to support the termination of Bettina's parental rights to J.L. 127 S.W.3d 911. The court accordingly reversed the trial court's judgment and rendered judgment restoring Bettina's rights. In reaching this judgment, the court of appeals also denied the Department's motion to dismiss Bettina's appeal as untimely, a jurisdictional issue again raised by the Department in this Court. We begin with that issue.

II

The Family Code provides that an appeal from a final judgment in a parental rights termination suit is governed by the rules for accelerated appeals. TEX. FAM. CODE § 263.405(a). These rules require that the notice of accelerated appeal be filed within 20 days after the final judgment is signed. TEX.R.APP. P. 26.1(b). The Family Code further provides that the deadline for filing the notice of an accelerated appeal is not extended by the filing of post-trial motions. TEX. FAM.CODE § 263.405(c); In re K.A.F., 160 S.W.3d 923, 926 (Tex.2005).

Following the original final judgment in this case, Bettina did not file her notice of appeal within 20 days, although she did timely file a motion for new trial and also a motion to modify, correct, or reform that judgment. The trial court overruled the motion for new trial but granted the other motion, correcting and making a number of changes to its original judgment. Three days after the signing of the corrected judgment, Bettina filed her notice of accelerated appeal.

The Department contends that because Bettina failed to file her notice of appeal within 20 days of the original judgment, she did not perfect her appeal in a timely manner; thus, the court of appeals did not acquire jurisdiction. While the Department does not maintain that Bettina's post-trial motions were untimely, it relies on the Family Code provision which states that such motions do "not extend the deadline for filing a notice of appeal." Id. Moreover, the Department argues that even if a corrected judgment would otherwise have restarted the appellate timetable, it did not do so here because the court's purpose was not to make corrections but to give Bettina a second chance to file her notice of appeal.

In an ordinary appeal, a timely filed post-trial motion extends both the trial court's period of plenary jurisdiction and the time for filing the notice of appeal. TEX.R. CIV. P. 329b(e); TEX.R.APP. P. 26.1(a). The Family Code clearly anticipates the acceleration of this type of case by shortening the appellate deadlines and instructing the appellate court to render its decision "with the least possible delay." TEX. FAM.CODE § 263.405(a). It further provides that the filing of post-trial motions does not extend the time for filing a notice of appeal as might otherwise be the case. Id. § 263.405(c). The Family Code, however, does not purport to eliminate post-trial motions or otherwise constrict the trial court's plenary power. Cf. Johnstone v. State, 22 S.W.3d 408, 410-11 (Tex. 2000) (stating a formal motion for new trial was not a necessary predicate to challenge factual sufficiency of the evidence in an accelerated temporary mental commitment proceeding).

In this case, Bettina's timely filed motion for new trial extended the trial court's plenary power but did not extend the deadline for filing the notice of appeal. See In re K.A.F., 160 S.W.3d at 926. However, because the trial court actually modified and corrected its judgment while it retained plenary power jurisdiction to do so, the time for filing the notice of appeal must be calculated from the date of the new final judgment. The time for filing a notice of accelerated appeal is restarted not by the filing of the motion but by the act of the court. Thus, we conclude that the notice of appeal, filed three days after the signing of the corrected judgment, was timely. See TEX.R. CIV. P. 329b(h) ("If a judgment is modified, corrected, or reformed in any respect, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed. . . .").

The Department contends, however, that the corrected final judgment in this case was simply a sham to extend the time for appeal. Relying on Mackie v. McKenzie and Anderson v. Casebolt, the Department argues that the appellate timetable should not restart when the record reveals that the trial court signed its new judgment "for the sole purpose of extending the appellate timetable." Mackie v. McKenzie, 890 S.W.2d 807, 808 (Tex.1994) (discussing Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973)). The Department submits that any change to the judgment was purely cosmetic and solely for the purpose of extending Bettina's time for appeal.

In Anderson, the modified judgment was identical to the former judgment except for its date. 493 S.W.2d at 510. The trial court even stated that the modified judgment was issued because the "counsel for the plaintiff did not discover such entry [of the former judgment] until too late to file a motion for new trial. . . ." Id. We held the appellate timetable did not restart because the record revealed that the modified judgment "could serve no purpose other than to enlarge the time for appeal." Id. at 510-11.

The changes made to the judgment in this case are not so transparent. They include: revising the docket number to reflect a severance of the case as to J.L. from the case concerning the infant; correcting an attorney's misspelled name; reflecting that the trial court, not just the jury, made the requisite findings for termination; deleting an erroneous reference to an inapplicable statute; and adding language regarding J.L.'s continued right to inherit from Bettina. In Check v. Mitchell, we held that "any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power" will restart the appellate timetable from the date the...