In the Interest of J.R.B. and R.R.C., Children v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00164-CV

IN THE INTEREST OF J.R.B. AND R.R.C., CHILDREN,

From the 220th District Court
Hamilton County, Texas
Trial Court No. FM07022

DISSENTING OPINION

The dismissal of this appeal is, at best, premature. At worst, it deprives the

children the subject of the case of the benefit of a proper review of what is in their best

interest.

This is an appeal of an order that, among other things, terminated the parental

rights existing between a mother and her children. The mother/appellant died after

entry of the order and before we had issued an opinion in the appeal. The notice of appeal

was timely filed, and we have the authority to “proceed to adjudicate the appeal as if all

parties were alive.” TEX. R. APP. P. 7.1(a)(1).
The death of the mother was first brought to our attention by the court reporter,

because she did not know if she should complete her portion of the appellate record. The

record was not complete when we learned of the death of the mother. We do not know

if the issues raised on appeal are moot because we do not know what the issues are. The

briefs with the issues therein are not yet filed.

Instead of proceeding with the appeal as provided by the rules when a party dies

during the pendency of the appeal, the Court sent a notice questioning the Court’s

jurisdiction. TEX. R. APP. P. 42.3. In the notice, the Court stated, “The death of a party

sometimes moots an appeal[]” and cited to “Interest of S.R.F., No. 04-21-00049-CV, 2021

WL 3742680, at 2 (Tex. App.—San Antonio Aug. 25, 2021, pet. denied).” It appears we

notified four different persons representing the government, and the attorney

representing the mother on appeal, but only “cc’d” the attorney appointed to represent

the children, and did not notify the terminated fathers, or the intervenors.

The deceased mother responded through her attorney. Counsel asked that the

appeal continue. Counsel specifically argues that the trial court improperly allowed the

foster parents seeking adoption to intervene. The alleged improper intervention was the

subject of an earlier mandamus proceeding which was summarily denied. 1 In re Craig,

No. 10-24-00118-CV, 2024 Tex. App. LEXIS 2987 (Tex. App.—Waco Apr. 30, 2024, orig.

proceeding). Further, counsel argues that the adoption proceedings were commenced

too late to be proper or relevant to the trial regarding termination. Finally, counsel states

1
It makes one wonder if the reason it was summarily denied was because there was an adequate remedy
by appeal because the trial would be over before the mandamus could be ruled upon.

In the Interest of J.R.B. and R.R.C. Page 2
that the maternal grandmother is ready to continue the appeal.

The Court divides the issues for this appeal into two parts; personal rights and

property rights. The Court states that “A party’s death moots an appeal as to the merits

of personal rights but not as to property rights.” After listing counsel’s reasons for

continuing the appeal, the Court summarily dismisses the response to the letter

questioning our jurisdiction as “[n]one of the provided reasons for continuing the appeal

address property rights.” The Court then holds that “any action by this Court on the

merits of this appeal would affect only personal rights.”

My response is to ask how does the Court know? We have seen no issues on

appeal. No briefs have been filed. If mother’s appellate counsel had said in her brief on

appeal that there is no meritorious issue, we still would have been obligated to review

the entire record to determine if we agreed. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396, 18 L. Ed. 2d 493 (1967); In the Interest of P.M., 520 S.W.3d 24, 27 n. 10 (Tex. 2016); In

the Interest of E.L.Y., 69 S.W.3d 838 (Tex. App.—Waco 2002, order). But instead, the Court

here simply dismisses the appeal without even a cursory review of the record.

Whether the termination order is proper has consequences. There is the

fundamental issue of whether the children’s mother died, or if the person who gave birth

to them was essentially a legal stranger to them because her parental rights had been

terminated. If their mother died, there could be a host of legal consequences including

benefits to which they might be entitled by insurance, government programs, or charities.

We do not know what those consequences are. We have not given the parties the

opportunity to make those issues into legal arguments. Moreover, there are other issues

In the Interest of J.R.B. and R.R.C. Page 3
that will arise if the termination order is reversed because it was improper. The reversal

clearly would not change the death of the mother, but it would impact who has standing

to appear in a suit to determine the best interest of what would then be orphaned children

(one parent being deceased and the other parents having died by judicial decree).

I am not a fan of addressing issues in an appeal because of the collateral

consequences of some facet of the facts or law that may arise in the future in other

proceedings. See e.g. In the Interest of N.G., 577 S.W.3d 230 (Tex. 2019). But the Supreme

Court of Texas has determined that some collateral consequences are of such a nature as

to require review in the appeal of the proceeding then before the court because of their

impact on other legal issues that may arise in the future. Id. at 227. And I am not here

advocating that we should decide additional issues because of collateral consequences.

How the mother’s death will impact the future legal rights of the children is not an issue

that we need to decide, and those issues have not been evaluated or briefed by the

appointed attorney for the mother, the State, counsel appointed to represent the interest

of the children, or the intervenors. But the possibility of such issues being raised in future

legal proceedings is adequate to allow the appeal to proceed to determine if the

termination order was proper and, thus, whether the appellant died as a mother or a

stranger to these children.

Finally, if the death of the mother of these children does legally moot the appeal,

the Court errs in failing to vacate the trial court’s orders. Under the Court’s analysis and

holding, the death has rendered the case moot, not some specific currently unbriefed

issue. The Supreme Court of Texas has told us that if a subsequent event renders a case

In the Interest of J.R.B. and R.R.C. Page 4
moot, the proper appellate judgment is to vacate the trial court’s orders and dismiss the

case. Alsobrook v. MTGLQ Inv'rs, LP, 656 S.W.3d 394, 396 (Tex. 2022). We have no

authority to dismiss an appeal and affirm the trial court’s judgment. See Tex. Dep't of

Family & Protective Servs. v. N.J., 644 S.W.3d 189, 192 (Tex. 2022) (“When a case becomes

moot on appeal, a court must vacate any previously issued order or judgment associated

with it.”).

It is ironic that the legal issues that are central to this situation are currently

pending before the Supreme Court of Texas in a case arising from the same court as the

one cited in our notice questioning our jurisdiction. See In re Marriage of Benavides, No.

04-20-00599-CV, 2023 Tex. App. LEXIS 779 (Tex. App.—San Antonio Feb. 8, 2023, pet.

granted)(PR No. 23-0463). In that case, there is $32,000,000 on the line over whether or

not the appellant is a widow or a divorcee. In that case, the issues have been exhaustively

briefed, and oral argument has been set for September 10, 2024. Hopefully, the facts of

this case can be brought to the attention of the Supreme Court of Texas so that the Justices

can consider the impact of their holding regarding the nature of appellate jurisdiction

and relief when a party dies pending the appeal and can thus clarify the law so that

parties can approach the resolution in their case with clarity, predictability, and certainty

that only the Supreme Court of Texas can provide.

I would allow the appeal to proceed, after giving notice to the attorney ad litem,

the fathers, and the intervenors of the pendency of the appeal and the need to evaluate

the merits of the appeal and best interest of the children. Because the Court dismisses

this appeal without a proper evaluation of the issues, without a full development of those

In the Interest of J.R.B. and R.R.C. Page 5
issues, and without vacating the trial court’s orders, I respectfully dissent.

TOM GRAY
Chief Justice

Dissenting opinion delivered and filed August 29, 2024.

In the Interest of J.R.B. and R.R.C. Page 6