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In re H. L. M.

Court of Appeals of Texas, Third District, Austin

December 11, 2019

In the Interest of H. L. M.

          FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-19-002226, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          MEMORANDUM OPINION

          Thomas J. Baker, Justice

         L.L.M. appeals the dismissal for lack of jurisdiction of her petition for bill of review challenging a 2017 order terminating her parental rights to her child, H.L.M. See Tex. Fam. Code § 161.211(a) (providing six-month time limit for collateral or direct attack of order terminating parental rights of person who has been personally served). We will affirm.

         BACKGROUND

         H.L.M. was born in December 2014. In June 2016, the Texas Department of Family and Protective Services (the Department) filed an original petition in suit affecting the parent-child relationship, and H.L.M. was removed from L.L.M.'s care. The Department was appointed H.L.M.'s temporary managing conservator.

         On October 31, 2017, the Department and L.L.M. executed a mediated settlement agreement (the MSA) in which L.L.M. agreed that there was clear and convincing evidence that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain H.L.M.'s return. See id. § 161.001(b)(1)(O) (providing that failure to comply with provisions of court order establishing actions necessary for parent to obtain return of child is ground for termination of parent-child relationship). L.L.M. also agreed that clear and convincing evidence existed that termination of her parental rights to H.L.M. was in the child's best interest. See id. § 161.001(b)(2) (requiring clear and convincing evidence that termination is in child's best interest). The MSA includes L.L.M.'s acknowledgement and agreement that the MSA would be used to terminate her parental rights to H.L.M. On November 13, 2017, the trial court signed a final decree that terminated L.L.M.'s parental rights to H.L.M. and appointed the Department H.L.M.'s sole managing conservator. The decree cautioned the parties that they had a right to appeal but that failure to follow the Texas Rules of Appellate Procedure for accelerated appeals in civil cases could result in dismissal of the appeal. The final decree also provided that L.L.M.'s court appointed attorney was dismissed "upon the date all appeals in relation to this order are exhausted or waived." The deadline for filing a notice of appeal of the final decree of termination was December 4, 2017. See Tex. R. App. P. 26.1(b) (requiring notice of appeal in accelerated appeal to be filed within 20 days after judgment or order is signed), 28.4(a)(1) (appeals in parental termination cases are governed by rules of appellate procedure for accelerated appeals).

         On December 29, 2017, L.L.M. mailed a letter to the district court stating that she wanted to appeal the final decree of termination. The district court received and filed the letter on January 2, 2018. In that letter, L.L.M. stated that, after signing the MSA, she advised her court appointed attorney that she had only done so under duress.[1] L.L.M.'s letter states that she had made unsuccessful attempts to contact her attorney, that she was at Travis County Correctional Complex, and that she "need[ed] to know what to do from here" given that she "signed [the MSA] under complete duress" and "was not properly represented." The district court and this Court treated this letter as a notice of appeal filed January 2, 2018.

         On January 26, 2018, this Court sent a letter to both L.L.M. and the attorney who had represented her during the trial court proceedings stating that the notice of appeal was not timely filed and, consequently, it did not appear that the Court had jurisdiction over the appeal. This Court requested a response explaining how it could exercise jurisdiction over the appeal. The attorney filed a response on February 5 in which she stated that she understood that the notice of appeal was not timely filed and that she was "in a bind because [she] cannot reveal any of [her] discussions with [with L.L.M.] due to the attorney-client privilege." The letter also stated: "If I did anything that was incorrect and caused the Notice of Appeal to be filed late then I would encourage the Court to maintain jurisdiction so that the appeal may move forward. Please do not punish my client for a mistake I may have made." The letter also enclosed an order dated January 23, 2018, substituting a new attorney for L.L.M. The substitute attorney also filed a motion to permit a late filed pro se appeal and requested the Court to exercise jurisdiction over the appeal. This Court denied the motion for extension of time and dismissed the appeal for want of jurisdiction. The Court noted that although L.L.M.'s attorney had filed a motion for extension of time, that motion was not timely filed. See L.L.M. v. Texas Dep't of Family & Protective Servs., No. 03-18-00026-CV, 2018 WL 828972, at *2 (Tex. App.-Austin Feb. 9, 2018, pet. denied) (mem. op.).

         After this Court overruled L.L.M.'s motion for rehearing and motion for en banc reconsideration, L.L.M., represented by the substitute counsel, filed a petition for review with the Texas Supreme Court requesting that the court remand the case to this Court to exercise our jurisdiction based on leniency for a pro se litigant and as a remedy for alleged ineffective assistance of counsel. The Texas Supreme Court denied the petition for review on October 19, 2018. L.L.M. filed two motions for extension of time to file a motion for rehearing in the supreme court. The court granted the extensions and ordered L.L.M. to file her motion for rehearing no later than December 5, 2018. L.L.M. did not file a motion for rehearing.

         On April 2, 2019, L.L.M., represented by new counsel, filed a petition for bill of review in Travis County district court. L.L.M. named the Department, H.L.M.'s attorney ad litem, the Court Appointed Special Advocate of Travis County, H.L.M.'s birth father, and the individuals seeking to adopt H.L.M. as respondents. L.L.M. alleged that, because her court appointed attorney rendered ineffective assistance of counsel, her due process rights were violated when her parental rights to H.L.M. were terminated. The Department filed a motion to strike the petition for bill of review on the ground that it was not timely filed. See Tex. Fam. Code § 161.211(a) ("Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served [] is not subject to collateral or direct attack after the sixth month after the date the order was signed."). The Department argued that L.L.M.'s petition for bill of review, filed more than sixteen months after the order terminating her parental rights to H.L.M. was signed, was untimely and should be dismissed. Following a hearing, the trial court signed an order stating that it construed the motion to strike as a plea to the jurisdiction and found that, under Texas Family Code section 161.211, the petition for bill of review was not timely filed and the court lacked jurisdiction. The trial court granted the plea to the jurisdiction and dismissed the petition for bill of review. This appeal followed.

         DISCUSSION

         L.L.M. filed her petition for bill of review challenging the order of termination more than sixteen months after the district court signed the final decree terminating her parental rights to H.L.M. Accordingly, the petition was untimely under section 161.211, which provides:

Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject ...

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