On January 31, 2025, the trial court signed a final judgment terminating Mother's parental rights to her child, J.D.H.; Father's rights were also terminated, but he did not appeal.¹ The Department of Family and Protective Services had removed the child about four years earlier because of concerns about the parents' drug use, criminal history, and domestic violence, according to the dissent.² A parental-termination appeal is accelerated, so the notice of appeal was due twenty days after the judgment, on February 20, 2025, and a motion for new trial does not extend that deadline.³ Mother's counsel filed a motion for new trial on February 28, believing it would extend the appellate deadline, and a notice of appeal was not filed until May 7.⁴

This is a petition for review of a court of appeals' dismissal. The Fourteenth Court of Appeals' clerk notified the parties the notice of appeal was untimely and the appeal subject to dismissal unless jurisdiction was shown; Mother moved to abate and remand for a determination whether trial counsel was ineffective, the Department took no position, and the court of appeals denied the motion and dismissed on June 5, 2025, holding that under its precedent counsel's ineffective assistance would not excuse an untimely notice or vest it with jurisdiction.¹ Mother petitioned for review, and the Department responded at the Court's request, again taking no position.² The Court granted the petition without oral argument and decided it per curiam on June 19, 2026, with Justice Sullivan dissenting, joined by Justices Young and Hawkins.³

Petition for review from the Fourteenth Court of Appeals; granted and decided by per curiam opinion under Texas Rule of Appellate Procedure 59.1, without oral argument, on June 19, 2026, with a dissent by Justice Sullivan joined by Justices Young and Hawkins.⁴

Mother presents one issue: whether the constitutional right to effective counsel in parental-termination suits extends to a duty to timely file a notice of appeal, so that an out-of-time appeal can be granted.¹ The Court framed it as whether a parent who fails to timely appeal a termination judgment because of ineffective assistance of counsel may pursue an out-of-time appeal.²

The Court evaluates an ineffective-assistance claim in a termination case under the two-prong standard of Strickland v. Washington, as in criminal cases: counsel's performance must be so grossly deficient as to render the proceedings fundamentally unfair, and the deficient performance must have prejudiced the defense.¹ Mother's petition states the same standard.²

Whether a parent may pursue an out-of-time appeal after counsel's ineffective assistance.

Petitioner (Mother): Parental-termination cases receive the same constitutional protection for effective counsel as criminal cases, and when a criminal defense attorney fails to file a timely notice of appeal and is found ineffective, the defendant is entitled to an out-of-time appeal; lower courts consistently refuse the same relief to parents, so the Court should hold that counsel's duty to advise about and perfect an appeal applies.¹ Trial counsel apparently believed a motion for new trial would extend the appellate deadline, and the proper remedy is abatement for an evidentiary hearing on ineffective assistance and, if proved, an out-of-time appeal.²

Respondent (Department): It takes no position on the issue, which appears to be one of first impression in a termination suit, and offers an overview of authority: the twenty-day accelerated-appeal deadline has no exceptions and post-judgment motions do not extend it, no Texas authority allows an appeal to continue for this reason, the Court of Criminal Appeals grants out-of-time appeals for ineffective counsel, and the child's interest in permanency and the six-month limit of Family Code Section 161.211 would bar any later claim.³

Justice Sullivan (dissenting): A timely notice of appeal is a prerequisite to appellate jurisdiction, and the deadline here is set by statute because Section 263.405(a) incorporates the accelerated-appeal rules; this Court has no authority to create equitable exceptions to jurisdictional requirements.⁴

Mother argued that the court of appeals decided an important question of state law that should be, but has not been, resolved by this Court, involving a constitutional issue, and that lower courts are not applying the criminal-case standard to out-of-time appeals in termination cases.¹

None

Holding

When a parent's counsel in a parental-termination case renders ineffective assistance by failing to timely perfect an appeal the parent requested, the parent may pursue an out-of-time appeal; the Court remanded for a hearing on whether counsel was in fact ineffective.¹

Reasoning

Right to effective counsel. Parents have a statutory right to counsel in termination cases, which In re M.S. held embodies the right to effective counsel and In re D.T. extended to parents with retained counsel, because the state is seeking to end a fundamental liberty interest.² The Court had previously been asked this question in K.A.F. but did not decide it because the parent had not raised it in the court of appeals; here Mother did.³

Criminal-case analogy. In Ex parte Axel and later cases, the Court of Criminal Appeals granted out-of-time appeals when counsel failed to assist a client who wanted to appeal; the Court concluded it must follow a similar course, because 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".⁴

Two caveats. A failure to file a timely notice does not necessarily equal ineffective assistance, which is why the remedy is abatement for an evidentiary hearing, and the child's interest in permanency remains paramount, so the six-month limit in Family Code Section 161.211 still places a hard deadline on any challenge, subject to constitutional challenges.⁵

Dissent (Justice Sullivan). A court of appeals is powerless to review a judgment absent a timely notice of appeal, even when a lawyer is at fault, and here the deadline is statutory because Section 263.405(a) incorporates the accelerated-appeal rules; Axel does not help because it involved a successful collateral attack by habeas, which Mother has not sought and this Court lacks jurisdiction to grant.⁶ He wrote that his "genuine sympathy for this parent can't confer appellate jurisdiction".⁷

Disposition

Petition granted, the court of appeals' judgment reversed, and the case remanded with instructions to abate the appeal and remand to the trial court for a hearing on whether Mother received ineffective assistance of counsel.⁸

Vote Breakdown

Per Curiam Opinion

Joined by Blacklock, C.J., and Bland, Busby, Devine, Huddle, and Lehrmann, JJ.

Dissent by Justice Sullivan

Joined by Hawkins and Young, JJ.