




Affirmed and Opinion filed October 19, 2006







Affirmed and Opinion filed October 19, 2006.
 
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-06-00097-CV
_______________
 
IN THE INTEREST OF C.M., A CHILD
 
 
                                                                                                                                               

On Appeal from the County Court at Law
Washington County, Texas
Trial Court Cause No. CCL4350
                                                                                                                                                
 
O P I N I O N
In this
suit affecting the parent-child relationship, Crystal Doyle (ADoyle@) appeals from a final order
appointing the Texas Department of Family and Protective Services (Athe Department@) as the permanent managing
conservator of her child, C.M.  Because Doyle did not present the trial court
with a timely filed statement of the points she now presents on appeal, we may
not consider these points; therefore, we affirm.  See Tex. Fam. Code Ann. ' 263.405(b), (i) (Vernon Supp. 2006);
In re S.E., No. 04-05-00750-CV, 2006 WL 1004724, at *1 (Tex. App.CSan Antonio April 19, 2006, no pet.
h.).
 




Factual and Procedural Background
Doyle is
the biological mother of C.M., who was born October 21, 2002.  In June 2004,
C.M. received a heart transplant at Texas Children=s Hospital (ATCH@).  Before the transplant, members of
the transplant team had concerns about the family=s willingness to provide adequate
care to C.M. and required the family to execute a social contract agreeing to
meet the requirements of C.M.=s care.  The contract provided that non-compliance would
result in referral to Child Protective Services.  After Doyle failed to follow
instructions for C.M.=s care with respect to a post-operative procedure, a TCH
social worker contacted the Department.
A
Department social worker spoke with Doyle, the child=s biological father, the TCH social
worker, and the director of the TCH Cardiac Transplant Program, who wrote a
letter expressing his concerns about C.M.=s remaining in Doyle=s care or the care of her extended family. 
On July 19, 2004, the Department took C.M. into protective custody and filed a
petition for protection of C.M., for conservatorship, and for termination of
Doyle=s and the biological father=s parental rights.  On August 2,
2004, the trial court held an adversary hearing and appointed the Department as
C.M.=s temporary managing conservator. 
The trial court subsequently held a permanency hearing and signed a permanency
hearing order extending the dismissal date to January 25, 2006.[1] 
On December 19, 2005, Doyle filed a motion for continuance and a request for
jury trial.  On December 21, 2005, Doyle filed a motion for summary judgment,
or alternatively, to dismiss.  The trial court subsequently denied the motion
for summary judgment.




The
trial court heard the case without a jury on January 11 and 12, 2006.  On
January 23, 2006, the trial court filed a letter setting forth its findings of
fact and announcing its ruling.  The same day, Doyle filed her notice of
appeal, in which she stated she desired Ato appeal from all portions of the
judgment.@  On January 25, 2006, the trial court signed a final order appointing
the Department as C.M.=s permanent managing conservator and appointing Doyle and the
child=s biological father as possessory
conservators.[2]  Doyle did
not file a motion for new trial.
Discussion
Doyle
raises seven issues on appeal: (1) the trial court abused its discretion when
it denied Doyle=s motion for continuance and request for a jury trial; (2)
the trial court abused its discretion when it denied Doyle=s motion to dismiss; (3) an order
appointing the Department as permanent managing conservator under Texas Family
Code section 263.404, but purportedly not in compliance with Texas Family Code
section 161.001, violates Doyle=s constitutional rights; (4) the evidence was insufficient to
support the trial court=s decision; (5) the trial court abused its discretion by
appointing a non-parent as C.M.=s sole managing conservator; (6) the trial court=s decision to restrict Doyle=s visitation with C.M. was not based
on any evidence; and (7) the trial court=s purported receipt of some
unspecified incompetent evidence violated Doyle=s due process rights.  The Department
responds, in part, that we may not review any of these issues because Doyle did
not present them to the trial court in a timely filed statement of points on
which she intended to appeal or in a statement combined with a motion for new
trial.  We agree.




The
trial court=s order appointing the Department as permanent managing conservator is a
final order.  See Tex. Fam. Code
Ann. ' 263.404(a) (Vernon 2002) (stating court may, on making certain specified
findings, Arender a final order appointing the department as managing conservator of
the child without terminating the rights of the parent of the child@); see also Tex. Fam. Code Ann. ' 263.401(d)(3) (Vernon Supp. 2006)
(stating, for purposes of section providing for dismissal after expiration of
specified time periods, final order includes one that Awithout terminating the parent‑child
relationship, appoints the department as the managing conservator of the child@).
Texas
Family Code section 263.405 governs an appeal of a final order for a child
under Department care.  See Tex.
Fam. Code Ann. ' 263.405 (Vernon Supp. 2006).  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.
 
Tex.
Fam. Code Ann. ' 263.405(b), (i).




The
legislature enacted subsection 263.405(b) in 2001 to reduce post‑judgment
appellate delays in termination cases, although subsection 263.405(b) also
applies to final orders appointing the Department managing conservator without
terminating parental rights.  See In re D.R.L.M., 84 S.W.3d 281,
290 (Tex. App.CFort Worth 2002, pet. denied); In re E.A.R., No. 10‑06‑00037‑CV,
2006 WL 1642105, at *2 (Tex. App.CWaco June 14, 2006, no pet.) (Vance,
J., concurring); see also Tex.
Fam. Code Ann. '' 263.404, 263.405.  Historically, some courts of appeals held
that a party did not forfeit appellate review of an issue in a termination case
by failing to include the issue in the statement of points required by
subsection 263.405(b) or by failing to file the statement of points.  See In
re D.A.R., No. 2‑06‑043‑CV, 2006 WL 2309587, at *1 (Tex.
App.CFort Worth Aug. 10, 2006, no pet.
h.).  The legislature subsequently enacted subsection 263.405(i) because of its
displeasure with appellate decisions allegedly undermining the legislative
intent of subsection 263.405(b).  See House
Comm. on Juvenile Justice and Family Issues, Bill Analysis, H.B. 409,
79th Leg., R.S. (2005) (stating recent appellate decisions unfortunately have
effectively repealed the legislature=s attempt to address post-judgment
delay issue and House Bill 409 conclusively establishes that legislature
expects litigants to comply with subsection 263.405(b)); see also In re
D.A.R., 2006 WL 2309587, at *1 (recognizing the legislature enacted
subsection 263.405(i) in response to these appellate decisions).  As the House
Committee explained:
If a mistake is pointed out to the trial court that warrants a new
trial, the trial court can immediately order a new trial, and the Legislature=s goal to decrease post-judgment delays is
accomplished.  Encouraging appellants to ignore the post-judgment procedures
enacted by the Legislature in 2001, not only increases the amount of time that
abused and neglected children spend in foster care, it bogs down the appellate
courts with mistakes that could have been quickly and easily corrected at the
trial level.
 
House
Comm. on Juvenile Justice and Family Issues, Bill Analysis, H.B. 409, 79th Leg., R.S.
Subsection
263.405(i) applies to an appeal filed on or after September 1, 2005.   See
Tex. Fam. Code Ann. ' 263.405.  Doyle filed her notice of
appeal on January 24, 2006.  Accordingly, subsection 263.405(i) applies to her
appeal.




Doyle
did not file with the trial court a statement of points on which she intended
to appeal or a motion for new trial.  Therefore, we may not consider any of the
issues she raises in this court.  See Tex.
Fam. Code Ann. ' 263.405(i); In re E.A.R., 2006 WL 1642105, at *1
(dismissing appellant=s issues and affirming judgment when appellant had not filed
statement of issues or motion for new trial); In re S.E., 2006 WL
1004724, at *1 (declining to consider appellant=s issues and affirming judgment when
appellant had not filed statement of issues or motion for new trial); see
also In re D.A.R., 2006 WL 2309587, at *1 (declining to consider issues not
raised in appellant=s statement of issues or motion for new trial and affirming
judgment).[3]
Accordingly,
we affirm the judgment of the trial court.
 
 
/s/        Maurice E. Amidei
Justice
 
Judgment rendered and Opinion filed
October 19, 2006.
Panel consists of Chief Justice
Hedges and Justices Yates and Amidei.[4]
 




[1]  See Tex.
Fam. Code Ann. ' 263.401(a), (b) (Vernon Supp. 2006).


[2]  C.M.=s biological
father did not appear at the hearing and is not a party to this appeal. 
Although, in its original petition, the Department sought termination of Doyle=s and the father=s
parental rights, the Department indicated at the beginning of the January 2006
hearing it was no longer seeking termination.


[3]  Doyle=s
sole reference to any issues she intends to present on appeal is found in her
notice of appeal, in which she states only, ACrystal
Doyle desires to appeal from all portions of the judgment.@  Even if a notice of appeal could serve as the
statement of points required by subsections (b) and (i) of Texas Family Code
Section 263.405, Doyle=s single reference in her notice of appeal does not
provide the trial court with sufficient information to correct the matters of
which she complains on appeal.  Just as subsection (i) provides that Aa 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,@ Doyle=s general
statement in her notice of appeal is not sufficiently specific to preserve any
of her seven issues for appeal.


[4]  Former Justice Maurice E. Amidei sitting by
assignment.
 


