Texas SC says mom who missed deadline will be allowed to appeal custody

Steve Korris Sep. 10, 2008, 4:00am

Justice Don Willett

AUSTIN – For a mother's sake, eight justices of the Texas Supreme Court ignored the fact that the woman missed an important deadline and will allow her to appeal.

They ruled Aug. 29 that although Mandi Durham missed a 15 day deadline to appeal an order giving her child to the state, the 11th District appeals court in Eastland must hear her plea.

Justice Don Willett wouldn't let the majority or the mother off the hook. "I would take the lawmakers at their word: 15 days means 15 days," he wrote in dissent.

Taylor County District Judge Thomas Wheeler terminated Durham's parental rights after a bench trial in 2006.

Wheeler appointed the Department of Family and Protective Services as permanent managing conservator of her child.

Durham filed a motion for new trial and a statement of points for appeal, five days too late. At a hearing her lawyer took the blame for missing the deadline.

Wheeler denied a new trial but retroactively extended the deadline so she could appeal.

On appeal, the department argued that the 11th District shouldn't even hear the case because Wheeler lacked authority to extend the deadline.

The 11th District agreed.

Durham appealed again, and she prevailed.

The Supreme Court held that Wheeler could enlarge the time for filing a statement of points if Durham showed good cause for failing to file it on time.

Justice Phil Johnson wrote that the mother "pleaded facts underlying her late filing and her attorney explained the late filing without objection."

The department didn't claim that the late filing prejudiced any party, he wrote.

"Nor do we see how it would be in derogation of the Legislature's clearly manifested intent that the final disposition of cases such as this be expedited," he wrote.

Although the mother challenged the deadline on constitutional grounds, Johnson wrote that the court didn't need to reach that question.

Willet responded in dissent that the court should confront whether the deadline violates due process or any other constitutional provision.

For better or worse, he wrote, the law set a firm deadline.

"I fully understand the court's desire for leniency in enlarging the 15-day deadline beyond the statute's terms," he wrote.
Losing appeal rights due to counsel's mistake is "nigh unfathomable," he wrote.

"On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible," he wrote.

Cynthia Rucker Allen represented Durham.

Erica Hall, James Eidson and Patricia Dyer represented the department.

Kenneth Leggett represented the child, by court appointment.

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