IN THE INTEREST OF E.M.

No. 05-17-00383-CV.

IN THE INTEREST OF E.M., A Child.

Court of Appeals of Texas, Fifth District, Dallas.


Attorney(s) appearing for the Case

Faith Johnson , Laura Anne Coats , for Texas Department of Family and Protective Services, Appellee.

Frank M. Adler , for M.M., Appellant.

Robert James Herrera , for Heather Ammirato, Appellee.

Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart.


ORDER

CRAIG STODDART, Justice.

We questioned our jurisdiction over this accelerated appeal from the trial court's decree of termination as the notice of appeal appeared untimely. See Garza v. Hibernia Nat'l Bank, 227 S.W.3d 233, 233 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (timely filing of notice of appeal is jurisdictional). The decree was signed September 1, 2016, making the notice of appeal due September 21, 2016, or with a timely extension motion, October 6, 2016. See TEX. R. APP. P. 26.1(b), 26.3, 28.1(b), 28.4(a). However, the notice of appeal was not filed until April 17, 2017.

At our request, appellant, who is indigent, filed a letter brief explaining he had requested the appointment of appellate counsel shortly after the termination. When counsel had not been appointed by September 28, 2016, he again requested appointment of counsel. Counsel was finally appointed March 29, 2017.

Our appellate rules provide that an appeal is perfected, and the appellate court's jurisdiction is invoked, when a written notice of appeal is filed with the trial court clerk. See TEX. R. APP. P. 25.1; See In re J.M., 396 S.W.3d 528, 531 (Tex. 2013). . In determining whether our jurisdiction has been invoked, we look not at the form or substance of the instrument filed, but whether a bona fide attempt to invoke appellate jurisdiction was made. See id. at 530.

A review of the record here reflects appellant was appointed counsel at trial. Section 107.016 of the Texas Family Code provides that an attorney appointed to represent an indigent parent in a termination suit "continues to serve in that capacity until the earliest of (A) the date the suit affecting the parent-child relationship is dismissed; (B) the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or (C) the date the attorney is relieved of the attorney's duties or replaced by another attorney after a finding of good cause is rendered by the court on the record." See TEX. FAM. CODE ANN. § 107.016 (West 2014). Despite this statutory mandate, the order appointing trial counsel for appellant provided that "[t]he appointment concludes at the time a final order is entered in this matter," and the record reflects no further appearances or actions by appellant's trial counsel following the termination.

On September 5, 2016, appellant wrote a letter to the trial judge stating he "would like to appeal [the] case" and "need[s] an appeal attorney". The letter is file-stamped by the Dallas County District Clerk's office September 19, 2016.

We conclude, on the record before us, that appellant made a timely, bona fide attempt to invoke our jurisdiction when he filed the September 5th letter. The letter expresses an intent to appeal and was filed with the trial court clerk within twenty days of the date of the judgment. See J.M., 396 S.W.3d at 531 (document expressing intent to appeal and partially entitled "Notice of Appeal" constituted bona fide attempt to invoke appellate jurisdiction).

Having suspended the deadline for filing the reporter's record pending determination of our jurisdiction, we ORDER court reporter Pamela Sumler file the record no later than May 30, 2017. Ms. Sumler is cautioned that extension motions will be disfavored.

We DIRECT the Clerk of the Court to send a copy of this order to the Honorable Cheryl Lee Shannon, Presiding Judge of the 305th Judicial District Court; Ms. Sumler; and, the parties.


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