in the Interest of C.R.G., a Child
05-16-01490-CV
| Tex. App. | Feb 9, 2017Background
- Child C.R.G. born Nov. 16, 2015; mother E.A.G. filed a petition to terminate the parent-child relationship on Feb. 29, 2016, alleging no presumed father and that an alleged father was unknown.
- Petition included a Texas Department of State Health Services certificate showing no notice of intent to claim paternity had been filed.
- Trial court signed an order of termination on May 6, 2016, terminating any parent-child relationship between “Unknown” and C.R.G. and finding no alleged father had registered with the paternity registry.
- On Oct. 28, 2016, Nicholas Vargas IV filed a motion for new trial and a notice of appeal asserting he is the child’s father and had no notice of the termination proceeding.
- The trial court denied Vargas’s post-judgment filing as untimely; Vargas sought a restricted appeal nearly six months after the termination order.
- The Court of Appeals concluded the restricted-appeal jurisdictional requirements were not met and dismissed the appeal for want of jurisdiction.
Issues
| Issue | Plaintiff's Argument (Vargas) | Defendant's Argument (E.A.G.) | Held |
|---|---|---|---|
| Whether Vargas timely and properly brought a restricted appeal | Vargas: filed notice within six months and had no notice of the termination, so restricted appeal applies | E.A.G.: Vargas was not a party to the termination suit and thus cannot use restricted-appeal route | Court: Dismissed for lack of jurisdiction — Vargas failed to meet restricted-appeal requirements |
| Whether Vargas was a party to the underlying suit | Vargas: he was in the class of alleged fathers targeted by the petition | E.A.G.: No record evidence shows Vargas was a party or identified before judgment | Court: Vargas was not a party; his name first appears only in his post-judgment filings |
| Whether virtual representation allows Vargas to appeal | Vargas: doctrine should bind him because his parental rights were terminated | E.A.G.: No party represented Vargas’s interests at trial; doctrine inapplicable | Court: Virtual representation does not apply where no one represented Vargas’s interest; doctrine not met |
| Whether error is apparent on face of record (required for restricted appeal) | Vargas: lack of notice and alleged misrepresentations by mother render error apparent | E.A.G.: Record shows certificate and statutory procedures complied with; no facial error | Court: No facial error in record showing Vargas was a party; restricted-appeal standard not satisfied |
Key Cases Cited
- In re Baby Girl S., 353 S.W.3d 589 (Tex. App.—Dallas 2011) (restricted-appeal requirements are jurisdictional; nonparties cannot secure relief by restricted appeal)
- State v. Naylor, 466 S.W.3d 783 (Tex. 2015) (elements of virtual-representation doctrine)
- Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex. 1965) (biological father not a named party to adoption proceedings could not rely on virtual representation where no one represented his interest)
- Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) (restricts consideration of evidence not before trial court in restricted appeals)