




 

NUMBER 13-06-351-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



IN THE INTEREST OF R. M. R., A CHILD




On appeal from the 135th District Court 

of Victoria County, Texas.



O P I N I O N


Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Rodriguez


	This appeal arises from the termination of the parental rights of appellant, the
mother of R.M.R.  By five issues, appellant contends that (1) her due process rights
were violated because she was not provided forty-five days notice of the final hearing
on termination, (2) the evidence is insufficient to support any ground of termination
and to support that termination was in the child's best interest, and (3) counsel
provided ineffective assistance.  We affirm.
	Section 263.405 of the Texas Family Code makes parental-termination appeals
subject to the procedures provided in that section.  See Tex. Fam. Code Ann. §
263.405 (Vernon Supp. 2006).  Effective for appeals like this one filed after
September 1, 2005, section 263.405 provides in relevant part:
	(b) Not later than the 15th day after the date a final order is signed by
the trial judge, a party intending to appeal the order must file with the
trial court a statement of the point or points on which the party intends
to appeal.  The statement may be combined with a motion for a new
trial.

* * *

	(i) 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.
Id. § 263.405(b), (i).
	In this case, the final order terminating appellant's parental rights was signed
on May 8, 2006, and the notice of appeal was timely filed.  However, the clerk's
record contains no statement of points to be raised on appeal.  We have contacted the
district clerk's office, and no such statement, either standing alone or with a motion
for new trial, was found in the district clerk's record.  Under the express terms of the
statute, because appellant did not file a statement of points, we cannot consider her
issues on appeal, even ineffective assistance of counsel.  See id. § 263.405(i); In re
D.A.R., 201 S.W.3d 229, 230-31 (Tex. App.-Fort Worth 2006, no pet.); see also In
re J.H., No. 12-06-00002-CV, 2007 Tex. App. LEXIS 407, at *2 (Tex. App.-Tyler,
Jan. 24, 2007, no pet.) (mem. op., designated for publication); Cisneros v. Tex. Dep't
of Family & Protective Servs., No. 13-06-321-CV, 2006 Tex. App. LEXIS 11121, at
*3  (Tex. App.-Corpus Christi Dec. 29, 2006, no pet.) (mem. op.) ("where the
statement of points is not sufficiently specific, the issues have not been preserved for
appeal").
	In reaching our holding above, we join the Fort Worth Court of Appeals, Justice
Vance of the Waco Court of Appeals, and the Houston First District Court of Appeals
in questioning the practical applications and constitutional validity of this statute, but
agree that we are barred by the legislature from considering appellant's issues.  See
In re D.A.R., 201 S.W.3d at 230-31 (noting that the legislature has mandated that
indigent parents receive appointed counsel and that the Texas Supreme Court in In re
M.S., 115 S.W.3d 534, 544 (Tex. 2003), has held that this "statutory right to counsel
in parental-rights termination cases embodies the right to effective counsel"; further
noting "that, unlike their counterparts in criminal cases, for whom the legislature has
specifically provided an avenue of adequate relief through a writ of habeas corpus if
trial counsel was ineffective but did not preserve the issue for appeal, parents in these
cases who allege ineffective assistance of counsel apparently have no recourse other
than direct appeal by which to overturn the trial court's judgment severing forever the
ties with their children"); In re E.A.R., 201 S.W.3d 813, 816 (Tex. App.-Waco 2006,
no pet.) (Vance, J., concurring) ("I thus question whether subsection 263.405(i), as
applied to certain termination cases-especially those cases involving indigent parents
whose appointed appellate counsel is not the same as appointed trial counsel-passes
constitutional muster because it can operate to deprive appellate review of any issues
under its accelerated timetable."); see also Pool v. Tex. Dep't of Family & Protective
Servs., No. 01-05-01093-CV, 2007 Tex. App. LEXIS 1576, at *7 n.11 (Tex.
App.-Houston [1st Dist.] Mar. 1, 2007, no pet.) (same).
	Accordingly, we affirm the judgment of the trial court.
 
								NELDA V. RODRIGUEZ
								Justice

Opinion delivered and filed this
22nd day of March, 2007.
