In the Interest of J.D.H., a Child

Supreme Court of Texas ══════════ No. 25-0588 ══════════ In the Interest of J.D.H., a Child ═══════════════════════════════════════ On Petition for Review from the Court of Appeals for the Fourteenth District of Texas ═══════════════════════════════════════ JUSTICE SULLIVAN, joined by Justice Young and Justice Hawkins, dissenting.

Federal and state courts alike hold that a timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Because the notice of appeal is a document of jurisdictional significance, a court of appeals is powerless to review a judgment absent a timely notice—even if the failure to file it is a lawyer’s fault. Yet today the Court holds that a parent whose ineffective lawyer files an untimely notice of appeal from a judgment terminating parental rights can still appeal that judgment.

Because my genuine sympathy for this parent can’t confer appellate jurisdiction, I respectfully dissent.

I Five years ago, the Department of Family and Protective Services removed Julian,* who was one year old at the time, from his parents because of concerns about their drug use, criminal history, and domestic violence. The district court entered a temporary order appointing DFPS as Julian’s managing conservator and requiring his parents to participate in services. The services didn’t result in reunification, so DFPS sought termination of parental rights. The district court completed the trial almost four years after DFPS had removed Julian.

Cf. In re J.M., ___ S.W.3d ___, 2026 WL 1614375, at *1 (Tex. June 5, 2026) (Sullivan, J., concurring in the denial of the petition for review) (“District courts dragging out parental-termination trials isn’t a new problem. But it’s a big one.”).

On January 31, 2025, the district court signed a final judgment terminating both parents’ rights based on Section 161.001(b)(1)(D), (E), and (O) of the Family Code. (The court also terminated the father’s rights based on Section 161.001(b)(1)(N), but his rights aren’t at issue here.)

Julian’s mother, Amelia, claims that she wanted to appeal.

In a parental-termination case, a party must file a notice of appeal within 20 days of the date the judgment was signed. See Tex. R. App. P. 26.1(b), 28.4(a)(1). But Amelia didn’t appeal before the February 20 deadline. Just before that date, a new lawyer appeared on Amelia’s behalf and then, eight days after the deadline to appeal, filed a motion for new trial. The motion alleged insufficient evidence

* I refer to the child by the alias “Julian” and his mother by the alias “Amelia.” See Tex. R. App. P. 9.8(b).

and ineffective assistance of counsel on the part of her first lawyer.

The district court didn’t rule on the motion.

Several weeks later, a third lawyer appeared on Amelia’s behalf and, on May 7, filed a document styled as a notice of appeal. A fourth lawyer appeared on Amelia’s behalf in the court of appeals. Two days after the fourth lawyer appeared, the court of appeals notified Amelia that her appeal was untimely and directed her to show cause why the court shouldn’t dismiss the appeal for lack of appellate jurisdiction.

In response, the fourth lawyer argued that trial counsel’s failure to timely appeal amounted to ineffective assistance of counsel. The fourth lawyer asked the court of appeals to abate the appeal and remand for a determination of whether trial counsel had been effective. The court of appeals declined. It explained that an untimely notice of appeal doesn’t invoke appellate jurisdiction, period. No. 14-25-00355-CV, 2025 WL 1587115, at *1 (Tex. App.—Houston [14th Dist.] June 5, 2025) (per curiam). Amelia filed a petition for review through her fourth lawyer.

II “A timely notice of appeal is an essential prerequisite for the appellate court’s jurisdiction.” Mitschke v. Borromeo, 645 S.W.3d 251, (Tex. 2022); see, e.g., In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010); Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005). This is true even in parental-termination cases. See In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Amelia’s lawyers missed the notice-of-appeal deadline, “[a]nd if the notice of appeal was untimely, then the appeal is jurisdictionally barred.” Mitschke, 645 S.W.3d at 259.

In the federal courts, as in Texas courts, “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). But in federal court, it’s because 28 U.S.C. § 2107 prescribes a statutory deadline for the notice of appeal, which is reflected in the Federal Rules of Appellate Procedure. See id. at 211–12 (describing “the jurisdictional distinction between court-promulgated rules and limits enacted by Congress”). “[A] provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time,” for “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction.” Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 19 (2017) (internal quotation marks omitted).

Texas doesn’t have a statutory analogue to 28 U.S.C. § 2107. In most cases, the due date for a notice of appeal is set solely by Rule 26.1 of the Texas Rules of Appellate Procedure. Perhaps a purely rule-based deadline shouldn’t carry jurisdictional consequences. After all, it’s not up to this Court, in promulgating such rules, to decide how much jurisdiction to confer upon the courts of appeals. That power belongs to the Legislature. See Tex. Const. art. V, § 6(a) (“Said Courts of Appeals shall have appellate jurisdiction . . . under such restrictions and regulations as may be prescribed by law.” (emphasis added)).

In this case, however, the tardiness of Amelia’s lawyers ran afoul of a statute, not just a rule. Section 263.405(a) of the Family Code imposes a 20-day deadline for noticing an appeal from a judgment that terminates parental rights, insofar as it incorporates by reference the timeline set forth in Rule 26.1. See Tex. Fam. Code § 263.405(a) (“An appeal of a final order rendered under this subchapter is governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure.”). It makes no difference that Section 263.405(a) incorporates Rule 26.1 by reference instead of using the words “20 days.” Plenty of statutes incorporate rules by reference, and we routinely treat those incorporations as valid. See, e.g., In re K.M.L., 443 S.W.3d 101, 118 (Tex. 2014); In re YRC Inc., 646 S.W.3d 805, 809 (Tex. 2022) (per curiam).

Amelia’s notice of appeal was therefore due on February 20, 2025, which is 20 days after the judgment terminating her parental rights was signed. See Tex. R. App. P. 26.1(b) (“[I]n an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed . . . .”); see also K.A.F., 160 S.W.3d at 927 (holding that a motion for new trial doesn’t extend this deadline). Her lawyers didn’t file a notice of appeal until May 7, 2025. That should be the end of this case because “the absence of a timely notice of appeal prevents the appellate court from ever exercising jurisdiction in the first place.” Mitschke, 645 S.W.3d at 260.

III A direct attack on a judgment, such as an appeal, “must be brought within a definite time period after the judgment’s rendition.”

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). Given that “the time to bring a direct attack” had already expired when Amelia filed her notice of appeal, she can “only attack [the] judgment collaterally.” Id. at 272. The Court relies on a habeas case that proves the point. Ante at 5–6 (citing Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988)).

In Axel, a robber was unconstitutionally denied effective assistance of counsel when his lawyer failed to help him file a notice of appeal from the judgment of conviction. 757 S.W.2d at 374–75. As a remedy, the Court of Criminal Appeals granted habeas relief, vacated the judgment, and remanded so he could file a timely notice of appeal once the district court entered a fresh judgment. Id. at 375. Thus, a collateral attack (habeas) had to succeed before the robber could pursue a direct attack (appeal) that was foreclosed by the passage of time.

I don’t see how Axel helps Amelia, unless there’s a way for her to collaterally attack this parental-termination judgment. Unlike the robber in that case, she hasn’t asked us to freshen the judgment by issuing a writ of habeas corpus. Even if she had, we lack habeas jurisdiction except where “a person is restrained in his liberty by virtue of an order, process, or commitment issued by a court or judge on account of the violation of an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case.” Tex. Gov’t Code § 22.002(e); see Tex. Const. art. V, § 3(a). That hardly describes this case. * * * Appellate jurisdiction is lacking because Amelia’s notice of appeal was untimely. Her lawyers’ failure to notice an appeal may well be ineffective assistance of counsel, but “this Court has no authority to create equitable exceptions to jurisdictional requirements.” Bowles, 551 U.S. at 214. I respectfully and reluctantly dissent.

James P. Sullivan Justice OPINION FILED: June 19, 2026

Supreme Court of Texas ══════════ No. 25-0588 ══════════ In the Interest of J.D.H., a Child ═══════════════════════════════════════ On Petition for Review from the Court of Appeals for the Fourteenth District of Texas ═══════════════════════════════════════ PER CURIAM JUSTICE SULLIVAN filed a dissenting opinion, in which Justice Young and Justice Hawkins joined.

A judgment terminating parental rights is the “death penalty” of civil judgments. In re D.T., 625 S.W.3d 62, 69 (Tex. 2021) (citing In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)). If a parent fails to timely appeal that judgment because of ineffective assistance of counsel, may the parent pursue an out-of-time appeal? We answer that question yes. Accordingly, we reverse the court of appeals’ judgment of dismissal, and we remand to that court with instructions to abate the appeal and remand to the trial court for a hearing on whether the petitioner’s counsel was ineffective in filing a late notice of appeal.

I On January 31, 2025, the trial court signed a final judgment terminating Mother’s parental rights to her child. 1 Mother filed a motion for new trial on February 28 and a notice of appeal on May 7.

The clerk of the court of appeals notified the parties by letter that the notice of appeal was due on February 20, the motion for new trial had not extended the appellate deadline, and the filed notice of appeal was therefore untimely. The letter stated that the appeal was “subject to dismissal without further notice” unless any party demonstrated within ten days that the court of appeals had jurisdiction.

In response, Mother filed a motion to abate the appeal and asked for a remand to the trial court to “determine if trial counsel rendered ineffective assistance of counsel for his mistaken belief that filing a motion for new trial would extend the appellate deadlines,” thereby excusing the failure to file a timely notice of appeal. The opposing party, the Department of Family and Protective Services, took no position on the motion. The court of appeals denied the motion and dismissed the appeal, holding that, under that court’s precedent, counsel’s alleged ineffective assistance “would not excuse an untimely notice of appeal or vest this court with appellate jurisdiction.” ___ S.W.3d ___, 2025 WL 1587115, at *1 (Tex. App.—Houston [14th Dist.] June 5, 2025); see also In re R.B.M., 338 S.W.3d 755, 757-58 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“We are aware of no authority allowing an appeal to continue because of ineffective assistance of counsel in failing to timely

file the appeal.”); TEX. R. APP. P. 2 (allowing an appellate court to suspend a rule’s operation for good cause but prohibiting the use of Rule 2 “to alter the time for perfecting an appeal in a civil case”).

Mother petitioned this Court for review, arguing that courts may and should allow a parent to pursue an out-of-time appeal when the parent’s failure to file a timely notice of appeal resulted from ineffective assistance of counsel. The Department filed a response that, as in the court of appeals, took no position on the issue.

II It is undisputed that Mother’s notice of appeal, filed over three months after the judgment was signed, was untimely. An appeal of a judgment terminating parental rights is an accelerated appeal, TEX. FAM. CODE § 109.002(a-1), making the deadline to file a notice of appeal twenty days after the judgment is signed, TEX. R. APP. P. 26.1(b). That deadline is “strictly set” and, absent a motion for extension of time under Rule 26.3, has “no exceptions.” In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). Unlike in an ordinary civil appeal, post-judgment motions in an accelerated appeal—including an appeal of a parental termination judgment—do not extend the notice-of-appeal deadline. Id.; TEX. R. APP. P. 26.1. Accordingly, though Mother’s counsel timely filed a motion for new trial, TEX. R. CIV. P. 329b(a), her notice of appeal was late. Mother claims that the late-filed notice of appeal resulted from ineffective assistance of counsel.

Under the Family Code, indigent parents have a right to counsel in parental termination cases. TEX. FAM. CODE § 107.013(a). In In re M.S., we held that this right to counsel “embodies the right to effective counsel.” 115 S.W.3d 534, 544 (Tex. 2003) (emphasis added). More recently, we concluded that the right to effective assistance of counsel in parental termination cases is not limited to indigent parents with appointed counsel but extends to parents with retained counsel as well.

D.T., 625 S.W.3d at 72-73. We explained: The Legislature determined that when the state seeks to terminate a parent’s fundamental liberty interest in making decisions regarding the care of his or her child, gravely and permanently impacting both, the stakes justify affording all parents the right to effective counsel to reduce the risk of an erroneous deprivation and unjust outcome.

Id. at 73. That determination is consistent with this Court’s longstanding and repeated recognition that the “natural right which exists between parents and their children is one of constitutional dimensions,” D.V. v. Tex. Dep’t of Fam. & Protective Servs., 722 S.W.3d 854, 858 (Tex. 2025) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)), and that a “parental rights termination proceeding encumbers a value ‘far more precious than any property right’ and is consequently governed by special rules,” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky v. Kramer, 455 U.S. 745, 758 (1982)). 2 In evaluating an ineffective-assistance claim in a parental termination case, we employ the same standard applied in criminal cases, as set out by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). M.S., 115 S.W.3d at 545. Under that two-pronged standard, also applied by the Texas Court of Criminal Appeals, see, e.g., Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), the parent must show that (1) counsel’s performance was “so grossly deficient as to render proceedings fundamentally unfair” and (2) “the deficient performance prejudiced the defense,” meaning “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” M.S., 115 S.W.3d at 545 (quoting Strickland, 466 U.S. at 687).

Shortly after issuing M.S., we were posed the same question with which we are presented today: whether a parent whose rights have been terminated may pursue an out-of-time appeal when the untimely notice of appeal resulted from ineffective assistance of counsel. K.A.F., 160 S.W.3d at 928. However, we did not address the issue in K.A.F. because the parent did not raise it in the court of appeals and therefore failed to preserve error. Id. Here, Mother raised the issue in the court of appeals, and we may finally resolve it.

In doing so, we are again guided by the standards employed in criminal cases. In Ex parte Axel, a post-conviction habeas corpus proceeding, the Court of Criminal Appeals held that, although the decision to appeal a judgment belongs to the defendant, the defendant’s trial counsel has a duty to advise his client about the right to appeal and “tak[e] other steps to pursue an appeal,” including assisting his client “in giving notice of appeal” if the client wishes to do so. 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). The defendant’s attorney in Axel knew the defendant wished to appeal the judgment but failed to assist him in doing so, leading the court to conclude that the defendant was “denied effective assistance of counsel on appeal in violation of his due process rights . . . and his due course rights.” Id. at 374-75. Accordingly, the court granted relief and held that the defendant was entitled to an out-of-time appeal. Id. at 375. The Court of Criminal Appeals has continued to grant similar post-conviction relief following a trial court’s determination that counsel rendered ineffective assistance by failing to file a timely notice of appeal. See, e.g., Ex parte Jones, No. AP-75,841, 2008 WL 383688, at *1 (Tex. Crim. App. Feb. 13, 2008) (per curiam) (not designated for publication).

We conclude that we must follow a similar course in parental termination cases. As we recently noted, the fundamental rights at stake in parental termination proceedings generate a right to counsel that “is otherwise practically unheard of in civil litigation.” D.V., 722 S.W.3d at 858. Again, that right “embodies [a] right to effective counsel whose performance may be challenged on appeal.” D.T., 625 S.W.3d at (citing M.S., 115 S.W.3d at 544). It cannot be the case that a parent may pursue an ineffective-assistance claim on appeal unless the ineffective assistance manifested in the failure to timely perfect that appeal. We hold that when a parent’s counsel in a parental termination case renders ineffective assistance by failing to timely perfect an appeal requested by the parent, the parent may pursue an out-of-time appeal.

We conclude, however, with two caveats. First, an attorney’s failure to file a timely notice of appeal does not necessarily equate to ineffective assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (applying Strickland standard to criminal counsel’s failure to file a notice of appeal and holding, among other things, that the defendant must show that “he would have appealed” “but for counsel’s deficient performance”). Mother implicitly recognizes this by the relief she requests: she asks us not to order the court of appeals to accept her notice of appeal but to instruct that court to abate the appeal while the trial court holds an evidentiary hearing on whether her counsel’s failure to file a timely notice of appeal constituted ineffective assistance.

Second, while parental rights are undoubtedly of constitutional magnitude, they are far from the only interests at stake in a parental termination proceeding—the “protection of the child” remains “paramount.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see also TEX. FAM. CODE § 263.307(a) (“[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.”).

Relatedly, a child has “an interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged.” M.S., 115 S.W.3d at 548.

The Legislature has endeavored to further that interest in multiple ways, including in Section 161.211 of the Family Code, which provides: “Notwithstanding Rule 329, Texas Rules of Civil Procedure,[3] the validity of an order terminating the parental rights of a person . . . is not subject to collateral or direct attack after the sixth month after the date the order was signed.” TEX. FAM. CODE § 161.211(a)-(b). The statute thus serves as an important backstop in service of a child’s

interest in permanency and stability. See In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003) (discussing various parental termination statutes, including Section 161.211, that effectuate the policy of “ensur[ing] that children’s lives are not kept in limbo while judicial processes crawl forward”). The Department asserts that the statute “will act as a time bar on a parent’s ability to assert [an ineffective-assistance] claim outside that six-month window.”

Section 161.211 is not at issue here because Mother challenged the termination judgment less than six months after it was signed.

However, we agree that as a general matter, the statute places a hard deadline on a parent’s ability to challenge a termination order, regardless of the reason. See Ramirez v. Dep’t of Fam. & Protective Servs., 667 S.W.3d 340, 344-46 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (holding that Section 161.211(c), which permits an attack on a termination order based on an unrevoked affidavit of relinquishment on grounds of fraud, duress, or coercion, does not authorize such challenges beyond the six-month deadline in subsections (a) and (b)). That provision, of course, is subject to any constitutional challenges that may be asserted. See In re K.S.L., 538 S.W.3d 107, 112-15 (Tex. 2017) (rejecting a due-process challenge to Section 161.211(c)); E.R., 385 S.W.3d at 566 (holding that Section 161.211 did not bar a post-six-month challenge by a parent who was not validly served with citation because “[a] complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time”); see also Ramirez, 667 S.W.3d at 346 (“Absent a showing of a constitutional bar to Section 161.211(a)’s enforcement, . . . we must give effect to the six-month deadline imposed by the Legislature on appellants’ petition challenging the termination orders.” (citing In re D.S., 602 S.W.3d 504, 516 (Tex. 2020))).

* * * In sum, we hold that a parent who fails to timely appeal a judgment terminating her parental rights because of ineffective assistance of counsel may pursue an out-of-time appeal. Without hearing oral argument, TEX. R. APP. P. 59.1, we grant Mother’s petition for review, reverse the court of appeals’ judgment, and remand the case to the court of appeals with instructions to abate the appeal and remand to the trial court to conduct a hearing on whether Mother received ineffective assistance of counsel.

OPINION DELIVERED: June 19, 2026