Monica Ramirez v. Texas Department of Family and Protective Services--Appeal from 198th District Court of McCulloch County
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00021-CV
NO. 03-08-00150-CV
Monica Ramirez, Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
NO. 2007019, HONORABLE ROB HOFMANN, JUDGE PRESIDING
MEMORANDUM OPINION
In these accelerated appeals, appellant Monica Ramirez appeals the district court’s
order terminating her parental rights to her minor child R.R. See Tex. Fam. Code Ann. § 161.001
(West Supp. 2008).1
Following a bench trial, Ramirez’s parental rights were terminated on December 19,
2007. The parties agree that Ramirez’s deadline to file her statement of points on appeal was
January 3, 2008, pursuant to the time limit set forth in section 263.405(b) of the family code, and
that she did not file a statement of points on appeal until January 8, 2008. See id. § 263.405(b)
(West Supp. 2008). On January 16, 2008, she filed an amended motion for new trial and statement
of points on appeal and a motion for extension of time to file her statement of points on appeal,
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In Cause No. 03-08-00021-CV, Ramirez appeals the order terminating her parental rights
and, in Cause No. 03-08-00150-CV, she appeals the trial court’s finding that her appeal is frivolous.
contending that her court-appointed counsel did not receive notice of his appointment until
January 8, and that he did not have contact with her until January 14.
At a hearing held on January 16, 2008, the trial court denied Ramirez’s motion to
extend time to file her statement of points on appeal. At that time, whether a trial court had the
authority and what the applicable standard was to grant an extension of the fifteen-day deadline
under section 263.405(b) were unclear. See In re M.N., 230 S.W.3d 248, 249 (Tex. App.—Eastland
2007), rev’d and remanded, In re M.N., No. 07-0698, slip op. at 7 (Tex. Aug. 29, 2008), available
at http://www.supreme.courts.state.tx.us/historical/2008/aug/070698.htm. Ramirez then sought
an extension from this Court to file her statement of points on appeal until January 17, and, on
February 6, 2008, this Court granted the extension. The Texas Department of Family and Protective
Services contends that this Court’s extension was void because “[a]n appellate court has no power
to extend deadlines before the trial court” and that, because Ramirez did not file a timely statement
of points on appeal, she is precluded from raising her issues on appeal. See Tex. Fam. Code Ann.
§ 263.405(i) (West Supp. 2008) (appeal of a termination order is limited to the issues presented in
a timely filed statement of points on appeal); Pool v. Texas Dep’t of Family & Protective Servs.,
227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
The Supreme Court recently held that a trial court may extend the time to file a
statement of points on appeal and set forth the applicable standard—upon a showing of “good
cause.” See In re M.N., slip op. at 5. To establish “good cause,” the supreme court applied the
standard of Texas Rule of Civil Procedure 5 as set forth in Carpenter v. Cimarron Hydrocarbons
Corp., 98 S.W.3d 682, 688 (Tex. 2002):
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“by showing that the failure to timely respond (1) was not intentional or the result of
conscious indifference, but the result of accident or mistake, and (2) that allowing the
late response will occasion no undue delay or otherwise injure the [opposing party].”
Id. at 6 (quoting Carpenter, 98 S.W.3d at 688). In this case, Ramirez’s attorney testified at the
January hearing that he filed the statement of points on appeal on the day that he received notice
of his appointment and that he did not have any contact with his client until January 14. The
Department did not provide contrary evidence or dispute his testimony.
In light of the supreme court’s opinion in In re M.N., which was decided after the
trial court’s decision in this case, we abate the appeal and remand the case to the 198th Judicial
District Court of McCulloch County for the district court to reconsider its decision on Ramirez’s
motion for extension of time to file statement of points on appeal within thirty (30) days from the
date hereof. Additionally, the district court shall cause the supplemental clerk’s record to be filed
with the clerk of this Court within forty-five (45) days from the date hereof.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Waldrop and Henson
Abated
Filed: September 11, 2008
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