COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00249-CV
IN THE INTEREST OF
S.R.B., A CHILD
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FROM COUNTY COURT AT LAW OF HOOD COUNTY
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MEMORANDUM OPINION 1
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Appellant parents filed a notice of appeal on July 17, 2013, seeking to
appeal the trial court’s denial of a writ of habeas corpus in which it found S.R.B.
to be an “Indian Child” as defined under the federal Indian Child Welfare Act
(ICWA) but also found that the ICWA did not apply to this private termination of
parental rights case.
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See Tex. R. App. P. 47.4.
On July 24, 2013, we sent appellants a letter indicating our concern that
we lacked jurisdiction over the appeal because the trial court’s July 9, 2013 order
did not appear to be a final judgment or an appealable interlocutory order.
Accordingly, we informed appellants that unless they or any party desiring to
continue the appeal filed a response showing grounds for continuing the appeal
by August 5, 2013, we could dismiss the appeal for want of jurisdiction. See Tex.
R. App. P. 42.3(a), 43.2(f).
On July 25, 2013, we sent appellants an additional letter, acknowledging
that we had received a copy of the trial court’s “Supplemental Order Denying
Issuance of Writ of Habeas Corpus.” In that order, the trial court again denied
the request for habeas corpus, found that the ICWA did not apply, and attempted
to grant appellants permission to appeal the order with regard to whether the
ICWA applied as a question of law that substantially affected most controlling
questions in the case. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West
2008 & Supp. 2012) (providing for permissive interlocutory appeals under certain
circumstances). We restated our concern that we lacked jurisdiction over the
appeal because of the lack of a final judgment or appealable interlocutory order
in this case. See id. § 51.014(d-1) (West Supp. 2012) (providing that subsection
(d) does not apply to actions brought under the family code). We again informed
appellants that unless they or any party desiring to continue the appeal filed a
response showing grounds for continuing the appeal by August 5, 2013, we
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could dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a),
43.2(f).
Appellants filed a response, but it does not show grounds for continuing
the appeal. Specifically, although appellants argue that the question is whether
the family code or the ICWA applies, the private termination suit at issue here
was brought under the family code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(d-1) (specifically excluding actions brought under the family code from
allowable permissive appeals). And whether the ICWA applies may be raised in
the appeal of the final judgment. See In re J.J.C., 302 S.W.3d 896, 899, 903
(Tex. App.—Waco 2009, no pet.) (finding in termination case brought by the
State that the ICWA protections are mandatory in involuntary termination
proceedings, stating that failure to follow the ICWA may be raised for the first
time on appeal, and abating case to the trial court to determine whether the
children were Indian children under the ICWA), disp. on merits, 2010 WL
1380123, at *1 (Tex. App.—Waco April 7, 2010, no pet.) (mem. op.) (reversing
judgments of termination and remanding cases to the trial court for further
proceedings after trial court’s determination during abatement that the children
were Indian children). 2
2
We note that although appellants may eventually have an appellate
remedy available from a final judgment in this case with regard to the ICWA’s
applicability, under the circumstances here, it may not necessarily be adequate.
Cf. Tex. R. App. P. 52; In re Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007) (orig.
proceeding) (considering whether parent had an adequate remedy by appeal
through a careful balancing of jurisprudential considerations that implicate both
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Further, although appellants argue that the trial court’s orders denying their
application for writ of habeas corpus are “tantamount to a temporary injunction”
that would be appropriate for an interlocutory appeal under civil practice and
remedies code section 51.014(a)(4), habeas proceedings of this nature are
specifically addressed in the family code, which does not provide for an
interlocutory appeal. See Tex. Fam. Code Ann. §§ 157.371–.376 (West 2008)
(addressing habeas proceedings); Armstrong v. Reiter, 628 S.W.2d 439, 439–40
(Tex. 1982) (orig. proceeding) (conditionally granting relief after trial court denied
parent’s application for habeas corpus); Broyles v. Ashworth, 782 S.W.2d 31, 32
(Tex. App.—Fort Worth 1989, orig. proceeding) (conditionally granting relief to
child’s managing conservators from order granting parent’s application for writ of
habeas corpus when trial court was without authority to amend valid and
subsisting order in a habeas corpus proceeding). Therefore, we dismiss the
appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: September 12, 2013
public and private interests); In re Tex. Dep’t of Family & Protective Servs., 348
S.W.3d 492, 498–99 (Tex. App.—Fort Worth 2011, orig. proceeding)
(conditionally granting relief when monitored return order was interlocutory and
no statute authorized interlocutory appeal of it).
4