




Opinion filed June 11, 2009











 








 




Opinion filed June 11,
2009
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh
Court of Appeals
                                                                  ___________
 
                                                           No. 11-08-00166-CV
                                                     __________
 
                      IN
THE INTEREST OF J.S. AND A.S., CHILDREN
 
 

 
                                         On
Appeal from the 326th District Court
 
                                                          Taylor
County, Texas
 
                                                 Trial
Court Cause No. 6446-CX
 

 
                                                                   O
P I N I O N
 
This
is an accelerated appeal from the trial court=s
order terminating appellant=s
parental rights.  We affirm.
                                                               Background
Facts




Krystal
Shelton, appellant, is the mother of J.S. and A.S.  The Department of Family
and Protective Services (the ADepartment@) filed an AOriginal Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit
Affecting the Parent‑Child Relationship@
on April 12, 2007.  The Department=s
original petition contained a pleading to terminate appellant=s parental rights. 
However, this pleading was premised on the condition that the Department would
not seek to terminate appellant=s
parental rights unless Areunification
with the mother [could not] be achieved.@ 

The
Department submitted a family service plan for appellant on June 1, 2007, that
the trial court adopted as its own order on June 8, 2007.  Appellant initially
attempted to comply with the family service plan.  She advised the trial court
at a status hearing conducted on June 7, 2007, that she agreed to do the work
required of her by the plan.  At a hearing conducted on October 3, 2007, the
Department advised the trial court that appellant had not been doing a good job
of fulfilling the requirements of the plan but that it was continuing to work
with her on the plan.
At
some point after the October 3, 2007 hearing, the Department elected to pursue
the  termination of appellant=s
parental rights.  The trial court received evidence pertaining to termination
at a bench trial that occurred on April 18, 2008.  At the conclusion of the
hearing, the trial court orally pronounced that appellant=s parental rights would be
terminated based upon her failure to comply with the family service plan.  The
trial court subsequently entered a written termination order that contained the
following finding: 
[Appellant]
failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return of  the
children who have been in the permanent or temporary managing conservatorship
of the Department of Family and Protective Services for not less than nine
months as a result of the children=s
removal from the parent under Chapter 262 for the abuse or neglect of the
children [Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon
2008)].
 
Section
161.001(1)(O) is the only statutory termination ground that the trial court
relied upon in its written termination order.
The
trial court entered the written termination order on April 21, 2008.  Appellant
filed a notice of appeal on April 30, 2008.  She also filed a statement of
points that she intended to appeal  in compliance with Tex. Fam. Code Ann. '
263.405(b) (Vernon 2008).  She alleged the following:
1. 
Section 263.405(b) violates her constitutional rights to due process and equal
protection;
 
2. 
Tex. Fam. Code Ann. ' 263.405(i) (Vernon 2008)
violates her constitutional rights to due process and equal protection;
 
3. 
The evidence was legally and factually insufficient to establish that
termination of her parental rights was in the best interest of the children;
and




4.  The evidence
was legally and factually insufficient to establish by clear and convincing
evidence a violation of Section 161.001(1)(O).
 
                                                             Issues
Appellant
presents three issues for review challenging the constitutionality of
Section 263.405.  In her first issue, she asserts that Section 263.405(b)
deprives indigent parents of their right to due process.  She contends that
Section 263.405(i) violates the doctrine of separation of powers in her second
issue.  In her third issue, she asserts that Section 263.405(i) deprives
indigent parents of their right to due process.
                                                            Analysis
Appellant
argues in her first issue that Section 263.405(b) violated her rights to
procedural due process.  Section 263.405(b) provides that a parent intending to
appeal a termination order must file a statement of the point or points on
which the parent intends to appeal not later than the fifteenth day after the
date a final order is signed by the trial court.  Appellant contends that the
fifteen-day deadline violated her procedural due process rights because she was
required to file the statement of points that she intended to raise on appeal
before the preparation of the reporter=s
record.  In this regard, three hearings occurred in the case prior to the
appointment of counsel for appellant.
A
parent appealing the termination of his or her parental rights has a right to a
meaningful appeal.  In re M.S., 115 S.W.3d 534, 546-47 (Tex. 2003); In
re S.K.A., 236 S.W.3d 875, 889-90 (Tex. App.CTexarkana
2007, pet. denied).  The trial court appointed an attorney for appellant
approximately six months prior to the final hearing on the issue of terminating
appellant=s parental
rights.  Her appointed counsel remained her attorney throughout the period
immediately following the entry of the termination, and he remains as her
attorney on appeal.  As set forth above, appellant=s appointed counsel timely filed a statement
of points on appeal.  Thus, appellant is not asserting that the fifteen-day
deadline prevented her from presenting any arguments on appeal. 
Instead, appellant asserts that she has been denied Ameaningful appellate review@ because her attorney was
unable to raise errors that might have occurred prior to his appointment
because he did not have the reporter=s
record from the three previous hearings.




The
reporter=s record
filed in this appeal includes transcriptions of the hearings that occurred
prior to the appointment of appellant=s
counsel.  Thus, while appellant=s
counsel did not have the reporter=s
record from the previous hearings at the time the statement of points were
required to be filed, they were available for him to review in preparing
appellant=s brief in
this appeal.  It is significant to note that appellant has not identified any
errors that allegedly occurred during the previous hearings that the
fifteen-day deadline prevented her from asserting.  
We
have reviewed the reporter=s
record from the three hearings to determine if any errors possibly occurred. 
The first hearing occurred on April 24, 2007.  It involved the placement of the
children after the initial, emergency placement of them with the Department. 
Appellant appeared at the hearing and announced her agreement for the children
to remain under the conservatorship of the Department.  The second hearing
occurred on June 7, 2007.  It consisted of a status hearing wherein the trial
court adopted the family service plan for appellant.  Appellant appeared at the
hearing and announced that she agreed to the matters contained in the plan and
that she had been working toward achieving the plan=s requirements.[1] 
The third hearing occurred on October 3, 2007.  It consisted of a permanency
hearing to determine if the children should remain in their current placement
with appellant=s
sister.  The Department informed the trial court that appellant had not been
doing a good job of accomplishing the goals set out in the family service plan
but that the Department was still working with her to comply with the plan. 
The hearing concluded with the trial court informing appellant that it was
going to appoint her an attorney to help her communicate with the Department. 
Our review of the reporter=s
record from the three hearings does not indicate the occurrence of any errors
that would be relevant to the issue of termination.  In this regard, the three
hearings occurred at a time when the Department was working with appellant to
achieve family reunification by completing the requirements of the family
service plan as opposed to seeking to terminate her parental rights.




We
conclude that the fifteen-day deadline did not preclude appellant from
obtaining meaningful appellate review of the order terminating her parental
rights.  Appellant has not identified any alleged errors that the deadline
prevented her from raising, and our independent review of the record does not
reveal any potential issues from the previous hearings.  Accordingly, appellant
has not demonstrated an Aerroneous
deprivation of parental rights@
to establish a violation of procedural due process.  Mathews v. Eldridge,
424 U.S. 319, 335 (1976); see In re M.S., 115 S.W.3d at 547.  Appellant=s first issue is
overruled.  
Appellant
argues in her third issue that Section 263.405(i) also violated her rights to
procedural due process.  Section 263.405(i) provides as follows:  
The
appellate court may not consider any issue that was not specifically presented
to the trial court in a timely filed statement of the points on which the party
intends to appeal or in a statement combined with a motion for new trial.  For
purposes of this subsection, a claim that a judicial decision is contrary to
the evidence or that the evidence is factually or legally insufficient is not
sufficiently specific to preserve an issue for appeal.
 
Appellant
incorporates her arguments under her first issue as her arguments in support of
her third issue.  In discussing her first issue, appellant alleges that
subsection (i) precludes any and all challenges to the legal or factual
sufficiency of the evidence supporting a termination order.  In this regard, it
appears that appellant has misinterpreted the second sentence of subsection
(i).  This sentence does not preclude a challenge to the legal and factual
sufficiency of the evidence supporting a termination order.  To the contrary,
it only provides that a general allegation that the evidence is legally or
factually insufficient to support termination will not preserve the issue for
appellate review.   A[S]pecific,
nonglobal claims@ of
insufficiency set out in a statement of points are not precluded from review.  In
re S.K.A., 236 S.W.3d at 899.[2]  The supreme
court=s recent opinion
in In re J.O.A., No. 08-0379, 2009 WL 1165303, at *5 (Tex. May 1, 2009),
reconfirms that termination orders are subject to sufficiency challenges. 
Accordingly, Section 263.405(i) does not violate a parent=s rights to procedural due
process because it does not preclude a challenge to the legal and factual
sufficiency of the evidence supporting termination.  Appellant=s third issue is overruled.




In
her second issue, appellant asserts that Section 263.405(i) violates the
separation of powers doctrine.   In this regard, appellant contends that the
legislature has impermissibly interfered with a core judicial function by
precluding appellate review of challenges to the sufficiency of the evidence.  
Appellant premises her separation of powers argument on her misinterpretation
of subsection (i).   As we have previously noted, subsection (i) does not
preclude appellate review of the legal and factual sufficiency of the evidence
supporting a termination order.  Accordingly, subsection (i) does not interfere
with a core judicial function because it does not preclude a challenge to the
sufficiency of the evidence.  Appellant=s
second issue is overruled.  
Although
appellant asserts that subsection (i) precludes a review of the legal and
factual sufficiency of the evidence, her brief addresses the sufficiency of the
evidence supporting the trial court=s
determination that she did not comply with the family service plan.  A review
of her sufficiency challenges on appeal is permitted because appellant included
sufficiency challenges in her statement of points on appeal.  Accordingly, we
will address her claim that the evidence supporting the trial court=s termination finding under
Section 161.001(1)(O) is legally and factually insufficient.[3] 

The
supreme court outlined the applicable standards of review for evidentiary
challenges in 
In re J.O.A.,
2009 WL 1165303, at *5-6:
Proceedings
to terminate parental rights under the Family Code require proof by clear and
convincing evidence. Tex. Fam. Code
' 161.001(1). Clear
and convincing evidence is Aproof
that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.@ [Tex. Fam. Code Ann. '
101.007 (Vernon 2008)]; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
When the legal sufficiency of the evidence is challenged:
 




[A] court should look at all the
evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its
finding was true. To give appropriate deference to the factfinder=s conclusions and the role
of a court conducting a legal sufficiency review, looking at the evidence in
the light most favorable to the judgment means that a reviewing court must
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that a court
must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew the
analysis of whether there is clear and convincing evidence. If, after
conducting its legal sufficiency review of the record evidence, a court
determines that no reasonable factfinder could form a firm belief or conviction
that the matter that must be proven is true, then that court must conclude that
the evidence is legally insufficient.
 
In re
J.F.C., 96 S.W.3d at 266.
 
When the factual
sufficiency of the evidence is challenged, only then is disputed or conflicting
evidence under review. As we said in J.F.C.: AIf, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is factually
insufficient.@ Id.
The court of appeals should further explain in its opinion Awhy it has concluded that a
reasonable factfinder could not have credited disputed evidence in favor of the
finding.@ Id.
at 267.
 
To
terminate parental rights based on Section 161.001(1)(O), a trial court must
find by clear and convincing evidence that the parent failed to comply with the
provisions of a court order that specifically established the actions necessary
for the parent to obtain the return of the child who has been in the permanent
or temporary managing conservatorship of the Department for not less than nine
months as a result of the child=s
removal from the parent under Tex. Fam.
Code Ann. ch. 262 (Vernon 2008) for the abuse or neglect of the child. 
Appellant does not dispute that the children were in the Department=s custody for at least nine
months or that the children were removed as a result of abuse or neglect. 
Instead, she argues that the Department did not meet its burden of proof to establish
that she did not comply with the trial court=s
order requiring her to complete the requirements of the family service plan. 




Among
other things, the family service plan required appellant to Ademonstrate an ability to
secure basic necessities such as food, clothing, shelter, medical care, and
supervision for the child[ren]@
and Amaintain stable
housing that is safe and appropriate for her children.@  Irene Montez, the children=s caseworker, testified
that appellant had not achieved the goals set out in the family service plan
because she did not have Asafe
and appropriate@
housing at the time of the termination hearing.  In this regard, Montez
testified that appellant did not currently have a permanent residence.   In the
year preceding the termination hearing, appellant had lived in six or seven
different locations with at least five different men.  Montez additionally
testified that appellant had not maintained gainful employment and that she did
not have any financial resources to provide for her children=s needs.  Conversely,
Montez also admitted that appellant had complied with other goals set out in
the family service plan.  Montez testified that appellant was currently taking
the medications needed to regulate her psychological problems.  Montez also
acknowledged that appellant participated in visitation with the children.
Appellant=s counselor, Phyllis Howard,
testified that appellant had made improvements during the previous year that
she counseled with her, particularly within the last several months.  She
described appellant=s
condition as Aguardedly
stable.@  Cody Stewart
is appellant=s
caseworker at MHMR.  He testified that appellant had been compliant with her
medications for the last several months.
            Appellant
also testified at the termination hearing.  She testified that she is currently
enrolled as a student at Cisco Junior College in a program to become a surgical
tech.  She testified that she supports herself with food stamps and assistance
from her friends.  At the time of the termination, appellant resided with a
friend named David Sikes at his house.  She further testified that it would
take her another year to become financially stable.
The
trial court made an oral pronouncement of its decision at the conclusion of the
termination hearing.  The trial court stated as follows:
As
far as [appellant] is concerned -- you know, [appellant], we were here a year
ago.  We were here in June when I looked right at you and talked to you about
the plan and about the services and specifically admonished you that your
failure to or unwillingness to follow through with what was being asked of you
could terminate your rights.  One of the things that your therapist said was
that ultimately one day you might be able to function appropriately as far as
parenting.  The situation is, though, that the law of Texas is we have
essentially a year, a year in which the Department has to do everything it can,
I have to do everything I can, but the parent also has to do everything that
she can do so that at the end of that year we have a permanent, stable,
healthful, good situation for children, and you are not there.  And as much
progress as you have made in the last few months, this year has gone by for
your kids, so I do find that the evidence is clear and convincing that it=s in the best interest that
your rights be terminated because you did not comply with the plan.
 




Viewing
the evidence in the light most favorable to an affirmative finding under
Section 161.001(1)(O), we conclude that it was sufficiently clear and
convincing that a reasonable factfinder could have formed a firm belief or
conviction that appellant failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the
return of her children.  Specifically, the evidence established that she had
not demonstrated an ability to secure basic necessities for her children and
that she had not maintained stable housing as of the time of the termination
hearing.  Accordingly, appellant=s
challenge to the legal sufficiency of the evidence supporting the trial court=s termination finding is
overruled.
Appellant
directs the bulk of her evidentiary arguments toward her challenge to the
factual sufficiency of the evidence.  She contends that the conflicting
evidence of her compliance with other parts of the family service plan
outweighs the evidence of her shortcomings under the plan.  She additionally
argues that she offered evidence to provide excuses for her failure to achieve
the plan=s goals.  
Section 161.001(1)(O) simply provides that a parent=s rights may be terminated if the parent Afailed to comply with the
provisions of a court order that specifically established the actions necessary
for the parent to obtain the return of the child.@ 
It does not quantify any particular  number of provisions of the family service
plan that a parent must not achieve in order for the parental rights to be
terminated or the degree of a parent=s
conduct that will be deemed to be a failure to achieve a particular requirement
of the plan.  The provision also does not encompass an evaluation of a parent=s partial achievement of
plan requirements to determine whether or not the parent failed to comply with
the plan.  Lastly, Section 161.001(1)(O) does not Amake a provision for excuses@ for the parent=s failure to comply with
the family service plan.  In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.CWaco 2006, pet. denied). 
Despite
appellant=s
achievement of some of the plan=s
goals, the evidence establishes that other requirements of the plan were not
achieved.  Appellant=s
inability to provide stable housing and basic necessities for her children are
significant deficiencies.  The trial court=s
determination that appellant failed to comply with requirements of the family
service plan is supported by factually sufficient evidence.
                                                               This
Court=s Ruling
The
judgment of the trial court is affirmed.
 
 
TERRY McCALL
June 11, 2009                                                                          JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




[1]The second hearing concluded with the trial court
making the following statement to appellant: AKeep
up the good work and don=t give up.@


[2]A statement of points is specific enough when it allows
the trial court to correct any erroneous findings on the challenged grounds.  See
Adams v. Tex. Dep=t of Family & Protective Servs., 236 S.W.3d 271, 278 (Tex. App.CHouston [1st Dist.] 2007, no pet.); In re A.J.H.,
205 S.W.3d 79, 81 (Tex. App.CFort Worth 2006,
no pet.).


[3]Appellant also included in her statement of points a
legal and factual sufficiency challenge to the trial court=s determination that the termination of her parental
rights would be in the best interest of her children.  We will not consider
whether the evidence supports this finding, however, because appellant did not
address this finding in her brief.  


