
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS









IN THE INTEREST OF C.B.M. and M.H.,
CHILDREN

                           

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No. 08-06-00136-CV

Appeal from the

65th Judicial District Court

of El Paso County, Texas 

(TC# 2005CM3068) 





O P I N I O N

            This is an accelerated appeal from a judgment terminating the parental rights of Appellant
Cynthia Hernandez Rodriguez to her two children, C.B.M. and M.H.  In ten issues, Appellant
challenges the legal and factual sufficiency of the evidence supporting the termination order.  We
affirm.
            Appellant first became involved with Appellee, the Department of Family and Protective
Services, as a result of her eldest daughter’s allegations of sexual abuse against Appellant’s then
boyfriend, Frank Falcon (“Falcon”).  According to Appellant’s daughter, Falcon had digitally
penetrated her vagina.  When a caseworker interviewing Appellant first informed her of the
allegations, Appellant revealed that the child had made a similar statement to her approximately
one month prior.  As a result of her daughter’s earlier statement, Appellant confronted Falcon but
he denied the allegation.  Appellant also indicated that she did not believe her daughter’s
allegations.
            After the meeting with Appellant, the children were voluntarily removed from the home
and placed in the care of Appellant’s sister.  During this meeting, Appellant admitted to the use
of cocaine and later submitted to a hair follicle test which tested positive for the use of cocaine. 
Appellee established a safety plan for the family and the children were returned to Appellant. 
Under the plan, Falcon was not allowed to have any contact with the children.  Falcon was
subsequently charged and indicted for aggravated sexual assault of a child.
            A caseworker was assigned to Appellant’s case in order to assist her in receiving
treatment for her substance abuse and sexual abuse counseling for her daughter.  The caseworker
again reviewed a child safety plan with Appellant and she agreed to seek substance abuse
counseling and attend counseling with her daughter.  Despite assurances to the contrary,
Appellant allowed Falcon to return to the home.  Appellant’s caseworker also arranged for her to
receive treatment at a residential treatment center for substance abuse.  However, Appellant
failed to check-in on the day of arrival and ceased all contact with her caseworker.
            Thereafter, Appellant moved to Juarez, Mexico out of fear she would lose her children. 
Appellant’s sister-in-law, who testified at the termination hearing, stated that she visited
Appellant and the children while they were living in Juarez.  She testified that the home
“smelled,” the children’s room was “real dirty,” there appeared to be food which had been left
out for “weeks, maybe months,” and the children were “dirty.”  While in Juarez, Appellant and
Falcon were arrested for possession of cocaine.  As a result of her arrest, the children were
removed from the home by a Mexican child welfare agency.  C.B.H. and M.R. were eventually
returned to the United States and placed in the care of Appellee.
            Appellee then filed an original petition and request for temporary orders.  The trial court
issued an order for the protection of the children in an emergency and found that:  (1) a
continuing danger to the children’s physical health or safety if the children were returned to the
parent; (2) allowing the children to remain in the home would be contrary to their welfare; and
(3) reasonable efforts were made to prevent removal.  In addition, Appellee was named
temporary managing conservator until a full adversarial hearing could be held.  After a full
adversary hearing, the trial court named Appellee temporary managing conservator of both
C.B.H. and M.H. and set the case for a status hearing on June 29, 2005.



            A family plan was developed for Appellant which included submitting to a drug and
alcohol assessment, seeking and participating in therapy for battered women, participating in
parenting classes, seeking and securing employment, demonstrating the ability to provide a safe
home and providing the basic needs of children, maintaining appointments, cooperating with
individuals trying to help her, and not participating in criminal activity.  Appellant did not attend
the service plan meeting nor did she visit or communicate with her children while they were in
foster care.
            The trial court subsequently held a status hearing in which it entered orders setting out the
requirements for the return of the children to Appellant.  Appellant did not attend the status
hearing.  Appellee then filed a second amended petition seeking termination of Appellant’s
parental rights.  Shortly thereafter, Appellant was arrested for attempting to smuggle drugs into
the United States.  Appellant pled guilty and was sentenced to forty-six months in a California
Federal prison for the importation of and possession with intent to distribute marihuana.
            Thereafter, Appellee filed a third amended petition seeking termination of Appellant’s
parental rights.  In its termination order, the trial court found by clear and convincing evidence
that:  (1) termination of the parent child relationship was in the children’s best interest; (2)
Appellant knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered their physical or emotional well-being; (3) Appellant
constructively abandoned the children who were in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services or an authorized agency for
not less than six months and:  (a) the Department or authorized agency made reasonable efforts
to return the children to the mother; (b) Appellant did not regularly visit or maintain significant
contact with the children; and (c) Appellant demonstrated an inability to provide the children
with a safe environment; and (4) Appellant failed to comply with provisions of the court order
specifically establishing the actions necessary for her to obtain the return of the children who had
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 for abuse
or neglect.  The order appointed Appellee as the permanent managing conservator of both
C.B.M. and M.H.



            After the trial court entered its order terminating Appellant’s parental rights, she timely
filed her notice of appeal.  Appellant did not move for a new trial nor did she attempt to comply
with the requirements of Tex.Fam.Code Ann. § 263.405 (Vernon Supp. 2006).  Specifically,
filing a motion for new trial, filing a statement of points on which she intended to appeal, or
requesting a hearing to determine whether the appeal was frivolous.  See id.
            Tex.Fam.Code Ann. § 263.405 governs appeals from final orders in suits affecting the
parent-child relationship.  Section 263.405(i) provides in relevant part:
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.

Tex.Fam.Code Ann. § 263.405(i).
            Since Appellant filed her notice of appeal on May 10, 2006, subsection 263.405(i) applies
to her appeal.  In re D.A.R., 201 S.W.3d 229, 229-30 (Tex.App.--Fort Worth 2006, no
pet.)(noting Section 263.405(i) is effective for cases appealed on or after September 1, 2005). 
However, Appellant failed to file with the trial court a statement of points on which she intended
to appeal or a motion for new trial.  Accordingly, we may not consider any of the issues she
raises and counsel for Appellant conceded as much at oral argument.  See Tex.Fam.Code Ann.
§ 263.405(i); In re C.M., --- S.W.3d ----, 2006 WL 2971318, *3 (Tex.App.--Houston [14th Dist.]
Oct. 19, 2006, no pet.); In re D.A.R., 201 S.W.3d at 230; In re E.A.R., 201 S.W.3d 813, 813
(Tex.App.--Waco 2006, no pet.); In re S.E., 203 S.W.3d 14, 15 (Tex.App.--San Antonio 2006,
no pet.); In re H.H.H., No. 06-06-00093-CV, 2006 WL 2820063, *1 (Tex.App.--Texarkana
Oct. 4, 2006, no pet.)(mem. op.).
            We affirm the trial court’s judgment.



December 14, 2006
DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.)(Sitting by Assignment)
