# Fourth Cour **t of Appeals**

**San Antonio, Texas**

June 9, 2014

N o. 04

- 13

- 00665

- CV

IN THE INTEREST OF R.S.D . a child,

From the 408th Judicial District Court, Bexar County, Texas

Trial Court No. 2012

- PA

- 00894 Honorable H. Paul Canales, Judge Presiding



### ORDER

This is an appeal from the July 17, 2013 final order terminating appellant’s parental rights. T EX

. F AM

. C ODE A NN

. § 263.405 (West Supp. 2013). Appellant filed a pro se notice of appeal on September 18, 2013, a fter expiration of the deadlines for filing a motion for extension

and the notice of appeal. See T EX

. R. A PP

. P. 26.1(b), 26.3. In response to our show cause order, appellant replied in writing that she did not receive notice of the signed final judgment until September 9, 2013, when she received a copy of the final judgment from the caseworker for the Department of Family & Protective Services. Construing appellant’s pro se response as a Rule 4.2 motion for additional time to perfect her appeal based on lack of notice of the signed judgment, we abated the appeal to the trial court to determin e the date on which appellant or her attorney first either (i) received the district clerk’s noti ce of the signed judgment or (ii) acquired actual knowledge of the signed judgment. See T EX

. R. A PP

. P. 4.2 (extending the appellate

timetable for perfecting an a ppeal due to lack of notice of the signing of the judgment); T EX

. R.

C IV

. P. 306a(4).

The trial court has held a series of hearings on the matter

, with the State presenting

evidence of the date the district clerk mailed out notice of the judgment at the February 26, 2014 hearing, appellant testifying by t elephone at the March 31, 2014 heari ng
, and appellant’s trial attorney, Mr. David Kaliski, appearing in person at the May 2, 2014 hearing. A supplemental

clerk’s record w as filed on March 12, 2014 containing the trial court’s partial find ings of fact stating that : (1) trial on the merits wa s heard on June 21, 2013; (2) all parties and their attorneys were present either in person or by telephone; (3) judgment was rendered in open court at the conclusion of the trial; (4) the final judgment was signed on July 17, 2013; (5) on July 18, 2013,

t he district clerk sent notice of the judgment pursuant to Rule 306a to all attorneys of record, including the appellant’s attorney, and to appellant; and (6) the attorney ad litem for the child received the notice of judgment in July 2013. A second supple mental clerk’s record filed on May 8 , 2014 contains supplemental findings of fact by the trial court stating in relevant part that : (1) appellant appeared by telephone at the March 31, 2014 hearing ; (2) appellant testified that she received a copy of the O rder of Termination on or about August/September 2013 from thecaseworker assigned to this case; (3) on the date of trial on the merits, appellant was incarcerated at the Plane State Jail and participated in the trial by telephone; (4) appellant was transf erred to a prison facility in Lockhart in July 2013; and (5) trial counsel for appellant, Mr. David Kaliski, appeared in person at the May 2, 2014 hearing on this matter and testified that he does not recall receiving the district clerk’s Rule 306a notice of the judgment or receiving a copy of the signed judgment, he does not have a copy of the signed judgment in his file, and he did not sign the judgment or appear on the date the judgment was signed.

Based on the record before us, we conclude t hat there is no evidence that appellant’s attorney received notice of the signed judgment and that the evidence shows appellant first

received notice and acquired knowledge of the signed final judgment in September 2013 and filed a notice of appeal on Septembe r 18, 2013 , within twenty days of the date of such notice

. See T EX

. R. A PP

. P. 4.2, 26.1(b); T EX

. R. C IV

. P. 306a(4). Therefore, appellant timely perfected her appeal from the final order of termination signed on July 17, 2013

.

The trial court has appoi nted an attorney, Mr. Joe Bohac, 111 Soledad, Suite 300, San Antonio, TX 78205 t o represent appellant in this appeal. According ly , this appeal is REINSTATED on this court’s docket. The appellant’s brief is due twenty (20) days from the

date of thi s order.

_________________________________ Rebeca C. Martinez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said

c ourt on this 9th day of June, 2014

.

___________________________________ Keith E. Hottle

Clerk of Court