### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00449- CV

Angelica Mitc hell Moore and Ke vin Alexand er M oore, A ppellan ts

v. Donna M. Brow n and Alvin B ernard Brown, Ap pellees

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NO. 235 ,235 -E, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

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

This is an appea l from an order terminating the pare ntal rig hts of appellants Ang elica Mitchell Moore a

nd Kevin Alexander Moore in a suit initiated by appellee s Donna M. B rown a nd Al v i n Be rn ar d Br own. The child, M.K.B., was born on Marc h 8, 2009, in the C ommonwealth o f Virg inia, wher e the Moores reside. On Marc h 10, 2009, the M o o res executed aff idavits relinquishing the ir pare ntal rig hts, designating the B rowns mana g ing c onserva tors of M.K.B., and waiving their rig ht to notice of any future pr ocee dings involving the child. On Marc h 20, 2009, the Br owns filed an Orig inal P et i t ion For Termination and Adoption of M.K.B. in Be ll County district court. I n their petition, they claimed standing o n t h e basis that they had “a court-or dere d rela tionship with the child the subject of this suit.” They further pleade d that M.K.B.’ s birth pare nts, the Moores, had executed unrevoke d or irrevoc able aff idavits of relinquishment of their pare ntal rig hts under chapte r 161 of the Texas Family Code, copies ofwhich they attache d to their petition. After a hear ing, at which the Moores did not appea r, the trial

court found that the Moores had executed irrevoc able aff idavi t s o f relinqui shment and that termination of their pare ntal rig hts was in the best interests of the child. The trial court’s final order of termination wa s signe d April 30, 2009.

On J une 1, 2009, the Moores filed a Motion to Reconsider Orde r in the district court, alleg ing that Donna Br own had misrepre sented herse lf as a r elative of Kevin Moore , that they had filed documents revoking their voluntary relinquishments, and that a case was curr ently pending in the J uvenile and Domestic Relations Court of Petersburg , Virg inia “to terminate temporar y custody and to have the child returne d to her biologica l pare nts.” The r ecor d does not contain a n order on the Moores’ motion to reconsider.

On J une 11, 2 0 0 9 , t h e trial court signe d an order g ranting adoption in favor of the B rowns. On J uly 23, 2009, the Moores filed a notice of appea l of the April 3 0 t er m ination order

. On appea l, they asser t that the aff

idavits of relinquishment on which the order of termination is based are void beca

use they wer e signe d less than 48 hours afte r the birth of M.K.B. in violation of the Texas Family Code. See Tex. Fam. Code Ann. § 161.103(a) (1). (West 2008) (“A n aff idavit 1

The aff idavits of relinquishment signe d by the Moores r efle ct that they wer e both signe d 1 at “2:30 p.m.” on Marc h 10, 2009. At the termination hear ing, Donna Br own testified that M.K.B. was born “ about 1330” ( 1:30 p.m.) on Marc h 8, 2009. Attache d to the Moores’ br ief filed he rein, howe v er , ar e what appea r to be hospital rec ords, including handwr itten notes of the attending phy sician, indicating that M.K.B. as born at “ 1528 ” (3:28 p.m.) on Marc h 8, 2009. These hospital rec ords are not part of the ap p el l at e rec ord, howeve r, and there fore may not be considere d in this appea l. See Sabine Offshore Serv., Inc. v. City of Port Arthur , 595 S.W .2d 8 4 0 , 8 4 1 (Tex. 1979) (appe l l at e courts may not consider matters out side of appellate record) ; Carlis le v. Philip Morris, Inc. , 805 S.W .2d 498, 501 (Tex. App.—Austin 1991, writ denied) (mater ials outside rec ord that are 2for voluntary relinquishment of pare ntal rig h t s m u s t b e s igne d afte r the birth of the child, but not

before 48 hours a

f t er the birth of the child .”) (empha sis added)

. Such a defe ct, if proved, might rende r an aff

idavi t o f relinquishment a nullity , see Sims v. Adoption Alliance , 922 S.W .2d 213, 217-18 (Tex. App.—San Antonio 1996, writ denied) , and arg uably defe at a party ’s standing to file

a suit a ffe cting the pare nt-child rela tionship on the basis that he or she is a person “desig nated as a manag ing conser

vator in an aff

idavit of relinquishment,” see Tex. Fam. Code Ann. § 102.003(a) (10) (West Supp. 2009).

I n this case , howeve r, t he Moores fail ed to timely file t heir noti ce of appea l within twenty day s of the date that the termination order was signe d. See Tex. R. App. P . 26.1(b) ( notice of appea l must be filed within 20 day s afte r judgme nt or order is signe d in acc eler ated appea ls); see also Tex. Fam. Code Ann. § 109.002(a) (West 2008) (proc edure s for acce lera ted appeals apply to suit in which termination of pare nt-child re l at i o n ship is in issue). Nor did they file a motion for leave to extend the time for filing their notice of appea l. See Tex. R. App. P. 26.3. Acc ording ly , we have no c hoice but to dismiss t he appe al for la ck of jurisdiction.

J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Dismissed for Want of J urisdiction Filed: Apr il 20, 2010

improperly

attache d to party ’s brief

may not be consider ed on appe al). 3