In re K. A.J. , No. 10-07-00110-CV (Tex.App.- Waco, June 13, 2007) (failure to file timely notice of
appeal, standing to appeal on behalf of party to the proceeding, errors on appeal)
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IN THE
TENTH COURT OF APPEALS
No. 10-07-00110-CV
In the Interest of K.A.J. and Z. J., Children
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. D200500214
MEMORANDUM Opinion
Appellant filed a notice of appeal to the agreed termination of the parental rights of B.J. (biological father to
K.A.J.) and A.J. (biological mother to K.A.J.). Appellant is the mother of B.J. Appellant was not a party to
the termination proceeding. Appellees filed motions to dismiss. In all, three such motions were filed. One
Appellee also filed a motion for damages.
For several reasons mentioned below, this appeal is dismissed. In the alternative, the trial court’s
judgment is affirmed.
The Clerk of this Court notified Appellant by letter dated April 25, 2007 of various defects regarding her
appeal. The first defect noted was that her appeal was subject to dismissal for want of jurisdiction because
Appellant’s notice of appeal was untimely. See Tex. R. App. P. 26.1(b), 42.3(a), 44.3; Tex. Fam Code Ann.
§ 109.002(a) (Vernon 2002). The Clerk further explained that a motion for extension of time to file the
notice of appeal is implied if Appellant files a notice of appeal within 15 days of the date the notice is due;
but Appellant must still supply a reasonable explanation for the late filing of the notice of appeal. See
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The Clerk warned Appellant that the Court may
dismiss the appeal unless, within 21 days of the date of the letter, a response is filed showing grounds for
continuing the appeal.
More than 21 days have passed and, although Appellant filed a motion for extension of time to file a notice
of appeal, Appellant did not provide the Court with a reasonable explanation for the untimely filing of the
notice of appeal. Appellant explains what happened between the judgment and filing the notice of appeal.
But simply explaining what was going on is not a reasonable explanation of why the notice of appeal was
not timely filed. For this reason, we have no jurisdiction and dismiss the appeal.
The second defect noted by the Clerk was that her appeal was also subject to dismissal for want of
jurisdiction because Appellant may not have standing to bring the appeal. The Clerk noted that according
to the docketing statement, an agreed order of termination was signed on March 13, 2007, and Appellant
filed a motion for intervention on March 21, 2007. These facts indicated to the Clerk that Appellant may
not be a party to the appeal. The Clerk warned Appellant that the Court may dismiss the appeal unless,
within 21 days of the date of the letter, a response is filed showing grounds for continuing the appeal. See
Tex. R. App. P. 42.3(a), 44.3.
Appellees raised the issue of standing as well in their motions to dismiss. In the motions, Appellees argue
that section 153.434 of the Texas Family Code bars Appellant from the relief she sought in the trial court –
grandparent access and possession. Section 153.434 provides that a biological or adoptive grandparent
may not request possession of or access to a grandchild if (1) each of the biological parents of the
grandchild has had the person's parental rights terminated, or executed an affidavit of waiver of interest in
the child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates
an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the
managing conservator of the child; and (2) the grandchild has been adopted, or is the subject of a pending
suit for adoption, by a person other than the child's stepparent. Tex. Fam. Code Ann. §153.434 (Vernon
Supp. 2006). Appellees assert that each of these statutory conditions was met and recited in the Agreed
Order of Termination signed by the trial court on March 13, 2007. Appellees are correct.
Appellant has not responded to either the Clerk’s jurisdictional inquiry regarding standing or the Appellees’
motions to dismiss. We have determined that Appellant does not have standing to pursue her appeal.
Therefore, Appellees’ motions are granted, and for this reason, the appeal is also dismissed.
Further, because Appellant failed to timely respond to our jurisdictional inquiry regarding standing to
pursue this appeal, we dismiss this appeal.
Finally, the third defect noted by the Clerk was that there was no indication that Appellant filed a statement
of points as required by the Texas Family Code. See Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp.
2006). Appellant did not respond to the Clerk’s inquiry. Because Appellant failed to provide an
explanation as to how the Court could consider any issue not raised by a statement of points, we dismiss
the appeal for this reason as well.
In the alternative, the trial court’s judgment is affirmed. The clerk’s record was filed on May 1, 2007. No
statement of points has been included in the record presented on appeal. The Clerk warned Appellant in
the April 25 letter that we would affirm the trial court’s judgment unless, within 21 days from the date of the
letter, Appellant filed a response showing grounds for this Court to consider any issue that was not raised
in a statement of points. More than 21 days have passed and Appellant has not responded to the Clerk’s
inquiry. Under the express terms of the statute, we cannot consider any potential issue Appellant might
bring. See Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2006); In re E.A.R., 201 S.W.3d 813, 814
(Tex. App.—Waco 2006, no pet.). Therefore, if, we are wrong in dismissing the appeal for the reasons
stated above, we affirm the trial court’s judgment.
Appellee’s motion for damages is denied. Any other relief requested in the various pending motions is
dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment of dismissal with a note)*
Appeal dismissed; or alternatively, affirmed
Opinion delivered and filed June 13, 2007
[CV06]
“(I join the opinion only to the extent of the first stated reason for dismissal, i.e. failure to file a timely notice
of appeal and explain why it was not timely.)”