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

Supreme Court of Texas
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No. 25-0588
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In the Interest of J.D.H., a Child

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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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).

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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,
253 (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.

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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

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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

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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

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Supreme Court of Texas
══════════
No. 25-0588
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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

1 Father’s parental rights were also terminated, but he did not appeal

the judgment.

2
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

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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.

2 This right is now expressly enshrined in the Texas Constitution. See
TEX. CONST. art. I, § 37 (“To enshrine truths that are deeply rooted in this
nation’s history and traditions, the people of Texas hereby affirm that a parent
has the responsibility to nurture and protect the parent’s child and the
corresponding fundamental right to exercise care, custody, and control of the
parent’s child . . . .”).

4
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

5
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
73 (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

6
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

3 Rule 329 places deadlines on filing post-judgment motions. TEX. R.
CIV. P. 329, 329b.

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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

8
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

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