                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00249-CV


IN THE INTEREST OF
S.R.B., A CHILD




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             FROM COUNTY COURT AT LAW OF HOOD COUNTY

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                        MEMORANDUM OPINION 1
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      Appellant parents filed a notice of appeal on July 17, 2013, seeking to

appeal the trial court’s denial of a writ of habeas corpus in which it found S.R.B.

to be an “Indian Child” as defined under the federal Indian Child Welfare Act

(ICWA) but also found that the ICWA did not apply to this private termination of

parental rights case.




      1
       See Tex. R. App. P. 47.4.
      On July 24, 2013, we sent appellants a letter indicating our concern that

we lacked jurisdiction over the appeal because the trial court’s July 9, 2013 order

did not appear to be a final judgment or an appealable interlocutory order.

Accordingly, we informed appellants that unless they or any party desiring to

continue the appeal filed a response showing grounds for continuing the appeal

by August 5, 2013, we could dismiss the appeal for want of jurisdiction. See Tex.

R. App. P. 42.3(a), 43.2(f).

      On July 25, 2013, we sent appellants an additional letter, acknowledging

that we had received a copy of the trial court’s “Supplemental Order Denying

Issuance of Writ of Habeas Corpus.” In that order, the trial court again denied

the request for habeas corpus, found that the ICWA did not apply, and attempted

to grant appellants permission to appeal the order with regard to whether the

ICWA applied as a question of law that substantially affected most controlling

questions in the case. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West

2008 & Supp. 2012) (providing for permissive interlocutory appeals under certain

circumstances). We restated our concern that we lacked jurisdiction over the

appeal because of the lack of a final judgment or appealable interlocutory order

in this case. See id. § 51.014(d-1) (West Supp. 2012) (providing that subsection

(d) does not apply to actions brought under the family code). We again informed

appellants that unless they or any party desiring to continue the appeal filed a

response showing grounds for continuing the appeal by August 5, 2013, we



                                        2
could dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a),

43.2(f).

       Appellants filed a response, but it does not show grounds for continuing

the appeal. Specifically, although appellants argue that the question is whether

the family code or the ICWA applies, the private termination suit at issue here

was brought under the family code. See Tex. Civ. Prac. & Rem. Code Ann.

§ 51.014(d-1) (specifically excluding actions brought under the family code from

allowable permissive appeals). And whether the ICWA applies may be raised in

the appeal of the final judgment. See In re J.J.C., 302 S.W.3d 896, 899, 903

(Tex. App.—Waco 2009, no pet.) (finding in termination case brought by the

State that the ICWA protections are mandatory in involuntary termination

proceedings, stating that failure to follow the ICWA may be raised for the first

time on appeal, and abating case to the trial court to determine whether the

children were Indian children under the ICWA), disp. on merits, 2010 WL

1380123, at *1 (Tex. App.—Waco April 7, 2010, no pet.) (mem. op.) (reversing

judgments of termination and remanding cases to the trial court for further

proceedings after trial court’s determination during abatement that the children

were Indian children). 2


       2
       We note that although appellants may eventually have an appellate
remedy available from a final judgment in this case with regard to the ICWA’s
applicability, under the circumstances here, it may not necessarily be adequate.
Cf. Tex. R. App. P. 52; In re Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007) (orig.
proceeding) (considering whether parent had an adequate remedy by appeal
through a careful balancing of jurisprudential considerations that implicate both
                                       3
      Further, although appellants argue that the trial court’s orders denying their

application for writ of habeas corpus are “tantamount to a temporary injunction”

that would be appropriate for an interlocutory appeal under civil practice and

remedies code section 51.014(a)(4), habeas proceedings of this nature are

specifically addressed in the family code, which does not provide for an

interlocutory appeal. See Tex. Fam. Code Ann. §§ 157.371–.376 (West 2008)

(addressing habeas proceedings); Armstrong v. Reiter, 628 S.W.2d 439, 439–40

(Tex. 1982) (orig. proceeding) (conditionally granting relief after trial court denied

parent’s application for habeas corpus); Broyles v. Ashworth, 782 S.W.2d 31, 32

(Tex. App.—Fort Worth 1989, orig. proceeding) (conditionally granting relief to

child’s managing conservators from order granting parent’s application for writ of

habeas corpus when trial court was without authority to amend valid and

subsisting order in a habeas corpus proceeding). Therefore, we dismiss the

appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).


                                                    PER CURIAM


PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: September 12, 2013




public and private interests); In re Tex. Dep’t of Family & Protective Servs., 348
S.W.3d 492, 498–99 (Tex. App.—Fort Worth 2011, orig. proceeding)
(conditionally granting relief when monitored return order was interlocutory and
no statute authorized interlocutory appeal of it).

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