OPINION
No. 04-10-00130-CV
In the INTEREST OF B.H.B., C.M.B., and D.R.B., Children,
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 06-09-0673-CVA
Honorable Stella Saxon, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 15, 2010
MOTION TO DISMISS GRANTED; APPEAL DISMISSED
This is a restricted appeal from the trial court’s termination of appellant mother’s parental
rights. On appeal, mother argues the trial court erred in entering the termination decree (1) based
on insufficient and fraudulent testimony, (2) without notice to any other party, and (3) without
any pleadings to support the termination decree. Appellee father filed a motion to dismiss the
appeal for want of jurisdiction, contending mother failed to meet one of the requirements for
perfecting a restricted appeal and accepted the benefits of the judgment. Because mother
participated in the decision-making event resulting in the termination decree, we conclude we
lack jurisdiction over this restricted appeal. We therefore grant father’s motion to dismiss, and
dismiss mother’s appeal for want of jurisdiction.
04-10-00130-CV
BACKGROUND
On July 2, 2009, mother executed an affidavit of voluntary relinquishment of her parental
rights regarding her children, B.H.B, C.M.B., and D.R.B. On August 26, 2009, a final hearing
was held wherein the trial court terminated mother’s parental rights based on findings that she
“executed an unrevoked or irrevocable affidavit of relinquishment of parental rights,” and that
“termination of the parent-child relationship between [mother] and the children . . . is in the best
interest of the children.” In addition to terminating her parental rights, the decree ended
mother’s obligation to continue making court-ordered child-support payments. Mother filed a
notice of restricted appeal, seeking to reverse the termination of her parental rights. In response,
father filed a motion to dismiss the appeal for want of jurisdiction.
ANALYSIS
To prevail on a restricted appeal, an appellant must demonstrate: (1) the notice of
restricted appeal was filed within six months of the date of the judgment or order; (2) she was a
party to the suit; (3) she did not participate in the hearing that resulted in the judgment
complained of, and did not file a timely post-judgment motion or request for findings of facts
and conclusions of law; and (4) error is apparent from the face of the record. TEX. R. APP. P. 30;
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Seymour v. Seymour, No. 14-
07-00280-CV, 2009 WL 442259, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2009, no pet.)
(mem. op.).
Father contends we have no jurisdiction over this restricted appeal because mother
participated. We agree.
Lack of participation is a jurisdictional requirement for review by restricted appeal.
Alexander, 134 S.W.3d at 848. “The nature and extent of participation precluding a restricted
appeal in any particular case is a matter of degree because trial courts decide cases in a myriad of
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procedural settings.” Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex.1996).
The question is whether appellant has participated in “the decision-making event” that results in
the judgment adjudicating appellant’s rights. Id.; Serna v. Webster, 908 S.W.2d 487, 494 (Tex.
App.—San Antonio 1995, no writ).
Courts have held waiver of service and a party’s statement that she has made a general
appearance for all purposes in proceedings does not rise to the level of participation precluding a
restricted appeal. See, e.g., Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth
2003, no pet.). And, waiver of citation and signing a preliminary divorce agreement do not
establish participation in the decision-making event so as to preclude a restricted appeal. Stubbs
v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). However, a party who waives citation, the making
of a statement of facts, and signs the judgment prior to entry has participated sufficiently to
preclude a restricted appeal. See Blankinship v. Blankinship, 572 S.W.2d 807, 808 (Tex. 1978).
Similarly, a party absent from the hearing wherein a divorce decree is proven up, but who waives
citation, the making of a record, and signs a motion to reinstate requesting the trial court to
finalize the divorce decree, has participated in the entry of judgment. Seymour, 2009 WL
442259, at *2.
Although mother was not present at the hearing in which the termination of parental
rights decree was ordered, she signaled her agreement to the termination by signing a sworn and
very detailed affidavit of relinquishment of her parental rights. In the affidavit, mother stated, “I
freely and voluntarily relinquish to [father] all my parental rights and duties,” and confirmed, “I
fully understand that a lawsuit will be promptly filed in a court of competent jurisdiction to
terminate forever the parent-child relationship between me and the children . . . .” She also
acknowledged, among other things:
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I do not want to go to court in person and choose not to be represented by a
lawyer. I want this Affidavit of Voluntary Relinquishment of Parental Rights
presented to the Court.
Because I do not want to testify in person before the Court, I freely and
voluntarily waive and give up my right to the issuance, service, and return of
citation, notice, and all other process in any suit to terminate my parental rights.
I do not want to be informed further about the lawsuit. I specifically agree that a
final hearing in the lawsuit may be held at any time without further notice to me.
Based on her sworn statements, we hold mother participated in the decision-making event
that resulted in the judgment terminating her parental rights. See id.; see also Pierce v. Abbott,
No. 04-98-00150-CV, 1998 WL 201583, at *1 (Tex. App.—San Antonio 1998, no writ) (noting
absence at time trial court signed divorce decree did not negate participation, and holding waiver
of citation, making of record, and consenting to terms of divorce decree constituted participation
precluding review of restricted appeal). The affidavit of voluntary relinquishment of mother’s
parental rights made the termination possible. See Texaco, Inc., 925 S.W.2d at 589.
Mother claims she did not participate in the underlying litigation, and submits affidavits
and other materials that are not part of the appellate record. The participation issue is limited to
the evidence presented before the trial court at the time it rendered its decision, so we cannot
consider such material in this appeal. See Alexander, 134 S.W.3d at 848 (holding “an affidavit
that was executed after the case had reached this Court . . . constitutes extrinsic evidence that
cannot be considered in a restricted appeal.”). Accordingly, because we conclude mother
participated in the decision-making event resulting in the termination decree, we lack jurisdiction
over this restricted appeal.
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CONCLUSION
We grant father’s motion to dismiss, and dismiss the appeal for want of jurisdiction.
Marialyn Barnard, Justice
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in the Interest of B.H.B., Children
Combined Opinion