in the Interest of A.B.K., a Minor Child

Dismissed and Opinion Filed May 19, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00128-CV

IN THE INTEREST OF A.B.K., A CHILD

On Appeal from the 470th Judicial District Court Collin County, Texas Trial Court Cause No. 470-30142-2019

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Goldstein Opinion by Justice Pedersen, III This accelerated appeal arises from a suit by the Texas Department of Family

and Protective Services (Department) seeking the termination of parental rights. See TEX. R. APP. P. 28.4. On August 21, 2020, the trial court signed an order terminating the parental rights of A.B.K.’s parents. Appellant, A.B.K.’s maternal grandfather, filed a petition in intervention requesting that the termination order be vacated and that he be appointed sole managing conservator of the child. The prospective adoptive parents also filed a petition in intervention requesting that they be appointed joint managing conservators of the child. After the adoption was finalized, the Department filed a motion to dismiss its “conservatorship as to the child.” The trial court granted the motion and dismissed the conservatorship on December 1, 2020. Appellant then filed both an amended petition in intervention and a motion for new trial on December 18, 2020. Appellant also filed a notice of restricted appeal of the dismissal order on February 26, 2021.

By letter dated April 14, 2021, we questioned our jurisdiction over this accelerated appeal. We instructed appellant to file a letter brief with an opportunity for appellees to respond.

Appeals in parental termination cases are accelerated. See TEX. R. APP. P. 28.4(a)(1). A “parental termination case” means a suit in which termination of the parent-child relationship is at issue. See id. 28.4(a)(2)(A). In an accelerated appeal, a notice of appeal is due within twenty days or, with an extension motion, thirty-five days after the date the judgment is signed. See id. 26.1(b), 26.3. In the absence of a timely notice of appeal, this Court lacks jurisdiction over the appeal. See 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).

In his letter brief, appellant agrees this is not a proper restricted appeal because he filed a timely motion for new trial. See TEX. R. APP. P. 25.1(7)(B) (restricted appeal not available if party files timely post-judgment motion). However, he asserts the appeal is a timely regular appeal because it was filed within ninety days of the date of the order. See id. 26.1. We disagree. In his petition in intervention that was appellant’s live pleading when the trial court signed the dismissal order, appellant sought to vacate the trial court’s August 21, 2020 final order terminating the parental

–2– rights of A.B.K.’s parents. Thus, termination of the parent-child relationship was still at issue. For this reason, this appeal is controlled by rule 28.4(a)(1)’s accelerated designation. See id. 28.4(a)(1), (a)(2)(A).

The cases appellant relies on in his letter brief are inapplicable because they concern the sufficiency of the notice of appeal instead of the timeliness of the notice of appeal. See In re J.M., 396 S.W.3d 528, 531 (Tex. 2013) (combined motion for new trial and notice of appeal sufficient to invoke appellate court’s jurisdiction); Warwick Towers Council of Co-Owners v. Paul Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (per curiam) (insurer made bona fide attempt to appeal by filing notice of appeal in name of its insured).

Appellant’s notice of appeal was due December 21, 2020 or, with an extension motion, January 5, 2021. See TEX. R. APP. P. 26.1(b), 26.3. The notice of appeal filed on February 26, 2021 was untimely and failed to invoke this Court’s jurisdiction. Accordingly, we dismiss the appeal. See id. 42.3(a).

/Bill Pedersen, III// 200128f.p05 BILL PEDERSEN, III JUSTICE

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF A.B.K., A On Appeal from the 470th Judicial CHILD District Court, Collin County, Texas Trial Court Cause No. 470-30142- No. 05-21-00128-CV 2019. Opinion delivered by Justice Pedersen, III. Justices Partida- Kipness and Goldstein participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee the Texas Department of Family and Protective Services recover its costs of this appeal from appellant James Edward Moya, Jr.

Judgment entered this 19th day of May 2021.

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