In the Interest of E.J.S., a Child v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-25-00803-CV

IN THE INTEREST OF E.J.S., a Child

From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 19-041
Honorable Kirsten Cohoon, Judge Presiding

Opinion by: Adrian A. Spears II, Justice

Sitting: Rebeca C. Martinez, Chief Justice
Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice

Delivered and Filed: June 10, 2026

APPEAL DISMISSED FOR LACK OF JURISDICTION

This is an attempted restricted appeal from a judgment terminating parental rights. Because

appellant does not satisfy one of the jurisdictional requirements for a restricted appeal, we dismiss

the appeal for lack of jurisdiction.

BACKGROUND

Appellant (mother) and appellee (father) are the parents of E.J.S., a minor child. Under the

terms of an agreed modification order, appellant was the child’s possessory conservator and

appellee was the child’s sole managing conservator. Both appellant and appellee filed petitions

seeking to modify the terms of the agreed modification order. On May 28, 2025, the trial court
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signed an order setting the case for final hearing on July 17, 2025. The trial court clerk notified the

parties of the setting.

On July 1, 2025, appellant filed a pleading asking the trial court to terminate her parental

rights to E.J.S. The pleading, which contains a verification, stated that appellant would not be

present at the final hearing. It further asked the trial court to terminate appellant’s parental rights

in her absence and stated that appellant would no longer participate in the proceedings and would

not be available for service, contact, or future litigation.

The following day, the trial court clerk sent an email to appellant asking her to file an

affidavit in support of her request for termination of her parental rights. The email, which was sent

to the address provided by appellant, was returned with a message stating that appellant’s email

address was terminated. Appellant did not withdraw her pleading requesting termination, nor did

she file a separate affidavit in support of her termination request.

On July 17, 2025, the trial court held a final hearing. Although appellee appeared at the

hearing in person and through counsel, appellant did not appear. At the hearing, the trial court

asked appellee’s counsel to submit a proposed judgment terminating appellant’s rights. On

September 17, 2025, the trial court signed a judgment terminating appellant’s parental rights and

denying all other relief requested but not expressly granted.

Appellant did not file a timely notice of appeal challenging the termination judgment. See

TEX. R. APP. P. 26.1(a) (stating notice of appeal must generally be filed within 30 days after the

judgment is signed). However, on December 12, 2025, appellant filed a timely notice of restricted

appeal. See TEX. R. APP. P. 26.1(c) (requiring notice of restricted appeal to be filed within six

months after the judgment is signed).

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DISCUSSION

To prevail in this restricted appeal, appellant must demonstrate: (1) her 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. See TEX. R. APP. P. 30; Alexander v. Lynda’s

Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

In his briefing, appellee urges us to dismiss this appeal because appellant does not satisfy

the third requirement for a restricted appeal—non-participation in the hearing that resulted in the

judgment. The non-participation requirement is jurisdictional, meaning that an appellant who fails

to satisfy it is precluded from challenging the judgment via restricted appeal. See Ex parte E.H.,

602 S.W.3d 486, 497 (Tex. 2020).

Because trial courts decide cases in a myriad of procedural settings, the nature and extent

of participation precluding a restricted appeal in any particular case is a matter of degree. Texaco,

Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The question is whether the

appellant participated in the decision-making event that resulted in the judgment adjudicating

appellant’s rights. Id. Participation in the decision-making event may take place when the appellant

signs or otherwise signals her approval of the judgment prior to its entry, even though not present

at the hearing where judgment is rendered. Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.—Austin

2009, no pet.); Pierce v. Abbott, No. 04-98-00150-CV, 1998 WL 201583, at *1 (Tex. App.—San

Antonio 1998, no pet.) (not designated for publication) (concluding party’s absence at the hearing

where divorce decree was signed did not negate participation, and holding waiver of citation,

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making of record, and consenting to terms of divorce decree amounted to participation precluding

review by restricted appeal).

In In re B.H.B., 336 S.W.3d 303 (Tex. App.—San Antonio 2010, pet. denied), we held that

a similarly situated appellant—a mother who had signed an affidavit requesting termination of her

parental rights—participated in the decision-making event that resulted in a termination judgment

even though she was not present at the hearing where termination was ordered. In that case, the

mother signed a “very detailed affidavit of relinquishment of her parental rights” before the

termination lawsuit was filed. Id. at 305. Her affidavit included statements that she “freely and

voluntarily relinquish[ed] to [father] all [her] parental rights and duties” and “fully underst[ood]

that a lawsuit will be promptly filed in a court of competent jurisdiction to forever terminate the

parent-child relationship between [her] and [her] children.” Id. at 305-06. Her affidavit also stated

that the mother did not want to be informed about the lawsuit any further and she agreed that a

final hearing could be held at any time without further notice to her. Id. at 306. On these facts, we

concluded that the mother signaled her agreement to the termination by signing the affidavit of

relinquishment. Id. We explained that the mother’s affidavit “made the termination possible.” Id.

Because the mother participated in the decision-making event that resulted in the termination

judgment, we held that she did not satisfy the non-participation requirement for a restricted appeal

and we dismissed her appeal for lack of jurisdiction. Id.

Here, appellant filed a pleading titled “Petition for Voluntary Termination of Parental

Rights,” which stated:

There is a hearing scheduled on July 17, 2025. I will not be appearing. I will no
longer participate in these proceedings. I will not be available for service, contact,
or future litigation.

I consent to the Court terminating my parental rights at that hearing in my absence.

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....

I understand this decision is permanent. I understand I will lose all legal rights to
my [child], including custody, visitation, decision-making, and access.
....

WHEREFORE, PREMISES CONSIDERED, I, [appellant], respectfully request
the Court:

1. GRANT this Petition for Voluntary Termination of Parental Rights;

2. TERMINATE my parental rights to [E.J.S.] at the July 17, 2025 hearing
without requiring my appearance. . . .

Below a paragraph with the heading “Verification,” appellant electronically signed the pleading

“under penalty of perjury.”

After filing her termination pleading, appellant underscored the finality of her request by

discontinuing her email address, thereby preventing any communications from the trial court clerk.

Appellant never withdrew her termination pleading. Consistent with the representations in her

pleading, appellant did not appear at the July 17, 2025 hearing.

In her reply brief, appellant attempts to distinguish her case from In re B.H.B. by focusing

on the type of document she signed. Appellant points out that, unlike the mother in In re B.H.B.,

she did not sign an affidavit of voluntary relinquishment of parental rights pursuant to section

161.103 of the Texas Family Code. 1 See TEX. FAM. CODE § 161.103. However, our analysis In re

B.H.B. was not based on the affidavit’s compliance with section 161.103. In fact, our opinion made

no mention of section 161.103. Instead, our analysis was based on the contents of the mother’s

affidavit and whether the mother signaled her agreement to the termination of her parental rights

by signing that document. Both the mother in In re B.H.B. and the appellant in the present case

1
Titled “Affidavit of Voluntary Relinquishment of Parental Rights,” section 161.103 sets out the procedural and
substantive requirements for an affidavit of voluntary relinquishment of parental rights. See TEX. FAM. CODE §
161.103.

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signed documents that unequivocally communicated their requests for termination of their parental

rights and demonstrated their understanding of the consequences of their requests. The fact that

appellant asked for termination of her parental rights in a pleading instead of an affidavit is not

determinative. Like the affidavit signed by the mother in In re B.H.B., appellant’s pleading “made

the termination possible.” See 336 S.W.3d at 306. Appellant’s unwithdrawn signed pleading

asking for termination of her parental rights was the catalyst for the trial court’s termination

judgment.

We conclude appellant participated in the decision-making event that resulted in the

termination judgment. See id.; Pierce, 1998 WL 201583, at *1 (holding that by waiving citation

and the making of a record and consenting to terms of divorce decree, party participated in the

proceedings to an extent sufficient to preclude her from obtaining appellate review by restricted

appeal). Because appellant does not satisfy the non-participation requirement for a restricted

appeal, this appeal is dismissed for lack of jurisdiction.

Adrian A. Spears II, Justice

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