TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00449-CV

Angelica Mitchell Moore and Kevin Alexander Moore, Appellants

v.

Donna M. Brown and Alvin Bernard Brown, Appellees

FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT

NO. 235,235-E, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from an order terminating the parental rights of appellants Angelica

Mitchell Moore and Kevin Alexander Moore in a suit initiated by appellees Donna M. Brown and

Alvin Bernard Brown. The child, M.K.B., was born on March 8, 2009, in the Commonwealth of

Virginia, where the Moores reside. On March 10, 2009, the Moores executed affidavits

relinquishing their parental rights, designating the Browns managing conservators of M.K.B., and

waiving their right to notice of any future proceedings involving the child.

On March 20, 2009, the Browns filed an Original Petition For Termination and

Adoption of M.K.B. in Bell County district court. In their petition, they claimed standing on the

basis that they had “a court-ordered relationship with the child the subject of this suit.” They further

pleaded that M.K.B.’s birth parents, the Moores, had executed unrevoked or irrevocable affidavits

of relinquishment of their parental rights under chapter 161 of the Texas Family Code, copies of
which they attached to their petition. After a hearing, at which the Moores did not appear, the trial

court found that the Moores had executed irrevocable affidavits of relinquishment and that

termination of their parental rights was in the best interests of the child. The trial court’s final order

of termination was signed April 30, 2009.

On June 1, 2009, the Moores filed a Motion to Reconsider Order in the district court,

alleging that Donna Brown had misrepresented herself as a relative of Kevin Moore, that they had

filed documents revoking their voluntary relinquishments, and that a case was currently pending in

the Juvenile and Domestic Relations Court of Petersburg, Virginia “to terminate temporary custody

and to have the child returned to her biological parents.” The record does not contain an order on

the Moores’ motion to reconsider.

On June 11, 2009, the trial court signed an order granting adoption in favor of

the Browns.

On July 23, 2009, the Moores filed a notice of appeal of the April 30 termination

order. On appeal, they assert that the affidavits of relinquishment on which the order of termination

is based are void because they were signed less than 48 hours after the birth of M.K.B. in violation

of the Texas Family Code. See Tex. Fam. Code Ann. § 161.103(a)(1). (West 2008) (“An affidavit 1

The affidavits of relinquishment signed by the Moores reflect that they were both signed

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at “2:30 p.m.” on March 10, 2009. At the termination hearing, Donna Brown testified that M.K.B.

was born “about 1330” (1:30 p.m.) on March 8, 2009. Attached to the Moores’ brief filed herein,

however, are what appear to be hospital records, including handwritten notes of the attending

physician, indicating that M.K.B. as born at “1528” (3:28 p.m.) on March 8, 2009. These hospital

records are not part of the appellate record, however, and therefore may not be considered in this

appeal. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979)

(appellate courts may not consider matters outside of appellate record); Carlisle v. Philip Morris,

Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied) (materials outside record that are

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for voluntary relinquishment of parental rights must be signed after the birth of the child, but not

before 48 hours after the birth of the child.”) (emphasis added). Such a defect, if proved, might

render an affidavit of relinquishment a nullity, see Sims v. Adoption Alliance, 922 S.W.2d 213,

217-18 (Tex. App.—San Antonio 1996, writ denied), and arguably defeat a party’s standing to file

a suit affecting the parent-child relationship on the basis that he or she is a person “designated as a

managing conservator in an affidavit of relinquishment,” see Tex. Fam. Code Ann. § 102.003(a)(10)

(West Supp. 2009).

In this case, however, the Moores failed to timely file their notice of appeal within

twenty days of the date that the termination order was signed. See Tex. R. App. P. 26.1(b) (notice

of appeal must be filed within 20 days after judgment or order is signed in accelerated appeals); see

also Tex. Fam. Code Ann. § 109.002(a) (West 2008) (procedures for accelerated appeals apply to

suit in which termination of parent-child relationship is in issue). Nor did they file a motion for

leave to extend the time for filing their notice of appeal. See Tex. R. App. P. 26.3. Accordingly, we

have no choice but to dismiss the appeal for lack of jurisdiction.

 

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Dismissed for Want of Jurisdiction

Filed: April 20, 2010

improperly attached to party’s brief may not be considered on appeal).

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