In Re: K.M.

Texas Family Code �263.405(e) contains language concerning appointment of counsel, but that language does not provide an additional right to counsel on appeal of cases not involving termination of parental rights.

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Click here for the full text of this decision FACTS:In 1999, Scott Reggio was determined to be the father of K.M. based on a proceeding titled “59,825-D.” At that time, Reggio was also appointed possessory conservator of K.M. In January 2003, Reggio filed a petition in that case asking that his mother, Judith Raborn, be named joint possessory conservator, though he asked to retain all of his previously granted rights. In April 2003, the Department of Family and Protective Services filed a request in April 2003 for emergency protection of a child, K.M. That case was titled “67,189-D.” The department asked to be named temporary managing conservator of the child and requested a determination of whether Scott Reggio was the child’s father. Reggio filed a motion in the “67″ case that Raborn be allowed access to K.M. Raborn later filed a petition in intervention seeking managing conservatorship of the child. The department consolidated the pending motions in the “59″ and “67″ cases, putting them both under the “67″ title. Reggio was incarcerated at the time of the final hearing. Raborn was named sole managing conservator of K.M., and K.M.’s mother was named possessory conservator. Reggio was not named a possessory conservator, and the final order dismissed the department as a party. Reggio filed a pro se notice of appeal, a declaration of inability to pay costs and a motion to vacate a default judgment. At this court’s urging, the department was asked to respond to Reggio’s appeal. The department argued that Reggio’s notice of appeal was untimely, and that he had failed to file a statement of points he was going to appeal, as required by Family Code 263.405. HOLDING:Appeal abated. The court first addresses whether Reggio’s appeal was timely. The court notes that the final order naming Raborn as the managing conservator was entered June 28, 2004, and that the order qualified for accelerated appeal. Reggio thus had 20 days to file his notice of appeal, and an appeals court is allowed to extend that period by another 15 days upon proper motion. A motion for extension of time is implied when a notice of appeal is filed in good faith within the 15-day window following the deadline. Reggio filed his notice of appeal on July 28, 30 days after the judgment, but within the 15-day window following the deadline. The court finds that Reggio’s delay in filing was not deliberate or intentional but was the result of a mistaken belief that the regular timetable for appellate appeals applied. The court then finds that although Reggio did not file a statement of points he planned to appeal, he did include in his notice of appeal a statement of the issues he planned to raise. The court next addresses whether Reggio’s affidavit of indigence and request for appointment of counsel were untimely. The affidavit of indigence was filed with the notice of appeal, so the court holds that it was timely filed. Nonetheless, the court agrees with the department that Reggio is not entitled to appointment of appellate counsel, even assuming he is indigent. Appointment of counsel is necessary when the termination of parental rights is being sought, but that was not the case here. Nothing in 263.405(e) extends the right of counsel to the type of case here. The court says that the trial court’s denial of Reggio’s request for a free reporter’s record was made without proper findings under 263.405(d). Therefore, the court abates the appeal and remands to the trial court to conduct a hearing to make those determinations. OPINION:Per curiam; Quinn, Reavis and Campbell, JJ.

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