




Motion for Rehearing Overruled; Opinion of October 14, 2008 Withdrawn;
Affirmed  and Opinion on Rehearing filed March 5, 2009







 
Motion
for Rehearing Overruled; Opinion of October 14, 2008 Withdrawn; Affirmed  and
Opinion on Rehearing filed March
5, 2009.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-07-00161-CV
____________
 
IN THE INTEREST OF S.N., S.M.N.,
AND D.A.N., CHILDREN
 

 
On Appeal from the 314th
District Court
Harris County, Texas
Trial Court Cause No. 2005-10415J
 

 
O P I N I O N   O N   R E H E A R I N G
We overrule appellant=s motion for
rehearing, vacate and withdraw our prior opinion and judgment dated October 14,
2008, and issue this opinion on rehearing and judgment in their place.




Appellant David Allen Neuenschwander, Jr. appeals from the
trial court=s order terminating his parental rights to his three
children.  In five issues, he challenges (1) the legal and factual sufficiency
of the evidence underlying the termination findings, (2) the legal and factual
sufficiency of the evidence supporting the trial court=s findings of fact
related to his paternity, and (3) the constitutionality of section 263.405(i)
of the Texas Family Code.  In his sixth issue, he asserts that if we reverse
the trial court=s termination of his parental rights, we
should also reverse the trial court=s appointment of
the Department of Family & Protective Services as sole managing
conservator.  We affirm.
I.  FACTUAL AND PROCEDURAL BACKGROUND
On November 25, 2005, DFPS received a referral alleging
neglectful supervision and physical neglect of S.N., S.M.N., and D.A.N. by
their mother, Angel Vidaure.  When officers from the Baytown Police Department
arrived at the home, they discovered that the children were home alone and had
been so for several hours.  After waiting forty-five minutes, during which time
Vidaure did not return, the officers took the children to the police
department.  Thereafter, DFPS took the children into custody.
On November 28, 2005, DFPS filed an Original Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit Affecting
the Parent-Child Relationship.  The children were subsequently placed together
in a foster home.  At the time, the daughters, S.N. and S.M.N, were eight years
old and six years old, respectively, and the son, D.A.N., was two years old.
At the time DFPS took the children into custody, appellant
was in jail serving a seventy-five day sentence for driving with a suspended
license for failure to maintain liability insurance.  He was released from jail
on December 8, 2005 after serving thirty-five days.  On January 9, 2006,
appellant attended a Permanency Plan Team meeting during which a DFPS case
worker reviewed appellant=s family service plan with him.  On
January 19, 2006, appellant signed the plan which required, among other things,
that he complete parenting classes, participate in individual therapy, and
obtain and maintain stable employment or provide proof of disability.  On
January 19, 2006, the court signed additional temporary orders that reiterated
the requirements of the plan as well as ordered both appellant and Vidaure to
complete all services outlined in the family service plans.




A bench trial was held on January 16, 2007.  In the final
termination order signed on February 6, 2007, the trial court terminated
Vidaure=s parental rights
based on her voluntary affidavit of relinquishment.  The court terminated
appellant=s parental rights based on Family Code section 161.001(1),
subsection (N) for constructive abandonment and subsection (O) for failure to
comply with the court-ordered family service plan and found that termination
was in the children=s best interest.  The decree established appellant=s paternity to D.A.N. only.  It also
terminated the parental rights of the unknown fathers of S.N. and S.M.N. based
on Family Code section 161.002(B)(2)(a).  DFPS was appointed sole managing
conservator of the three children.
On February 20, 2007, appellant filed a motion for new
trial and statement of appellate points.  The following day, he filed a request
for findings of fact and conclusions of law.  On February 23, 2007, appellant
filed his notice of appeal.  On March 2, 2007, DFPS filed proposed findings of
fact and conclusions of law with the court.  On March 13, 2007, the trial court
denied appellant=s motion for new trial and issued findings
of fact and conclusions of law.
II.  STANDARD OF REVIEW
Involuntary termination of parental rights is a serious
matter implicating fundamental constitutional rights.  Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985).  Due to the severity and permanency of the
termination of parental rights, the burden of proof at trial is heightened to
the clear and convincing standard.  See Tex. Fam. Code Ann. ' 161.001 (Vernon
Supp. 2008); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). AClear and
convincing evidence@ means Athe measure or
degree of proof 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 2002); accord In re
J.F.C., 96 S.W.3d at 264.  This heightened burden of proof results in a
heightened standard of review.  In re S.M.L., 171 S.W.3d 472, 476 (Tex.
App.CHouston [14th Dist.]
2005, no pet.).




When determining legal sufficiency, we review Aall 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.@  In re J.F.C., 96 S.W.3d at 266.  To give
appropriate deference to the factfinder=s conclusions, we
must assume that the factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could do so.  Id. We disregard all evidence
that a reasonable factfinder could have disbelieved or found to have been
incredible.  Id.  However, this does not mean that we must disregard all
evidence that does not support the finding.  Because of the heightened
standard, we must also be mindful of any undisputed evidence contrary to
the finding and consider that evidence in our analysis.  Id.
When reviewing a factual sufficiency challenge under the
clear and convincing burden, the analysis is somewhat different in that we must
consider all of the evidence equally, both disputed and undisputed.  See
id.  We must consider whether the evidence is sufficient to produce in the
mind of the factfinder a firm belief or conviction as to the truth of the
allegation sought to be established.  In re C.H., 89 S.W.3d 17, 26 (Tex.
2002).  We consider whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its
finding.  J.F.C., 96 S.W.3d at 266.  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.
In a proceeding to terminate the parent-child relationship
brought under section 161.001 of the Texas Family Code, the petitioner must
establish, by clear and convincing evidence, one or more acts or omissions
enumerated under subsection (1) of 161.001 and that termination is in the best
interest of the child under subsection (2). 
Tex. Fam. Code Ann. ' 161.001; In re J.L., 163 S.W.3d
79, 84 (Tex. 2005); In re U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th
Dist.] 2003, pet. denied).
 




III.  ANALYSIS
A.      Failure to
Complete Family Service Plan
In his fourth issue, appellant challenges the trial court=s termination of
his parental rights because he contends the evidence is legally and factually
insufficient to support termination under Texas Family Code section
161.001(1)(O).  To terminate parental rights based on 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 of Family and
Protective Services for not less than nine months as a result of the child=s removal from the
parent under Chapter 262 for the abuse or neglect of the child.
Here, appellant does not dispute that the children were in
the custody of DFPS or that he did not comply with all of the requirements of
the family service plan.  Instead, appellant argues that DFPS cannot meet its
burden of proof on the third element because the children were not removed from
him as the result of abuse or neglect on his part.  He asserts that the
language, Aas a result of the child=s removal from the
parent under Chapter 262 for the abuse or neglect of the child@ in subsection (O)
means that the parent who failed to comply with the court order must be the
same parent whose acts or omissions caused the child to be removed and placed
into DFPS=s care.




DFPS counters that appellant=s interpretation
of subsection (O) imposes a requirement that the statute does not.  It argues
that appellant misreads the final phrase of subsection (O) which Amerely indicates
that it is a situation involving a >child=s removal from the
parent under Chapter 262 for the abuse or neglect of the child.=@  According to
DFPS, if the legislature had intended to require specific proof that the parent
who failed to comply with a court order is the parent whose abuse or neglect of
the child warranted the child=s removal, it could easily have done so.
Statutory interpretation is a legal matter subject to de
novo review.  Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.
2002).  The overriding goal of statutory interpretation is to determine the
legislature=s intent.  Cont=l Cas. Co. v.
Downs, 81 S.W.3d 803, 805 (Tex. 2002).  To glean legislative intent, we look
first to the plain and common meaning of the words used by the legislature.  Argonaut
Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex. 2002); see also Tex. Gov=t Code Ann. ' 311.011(a)
(Vernon 2005).  We begin with the plain language because we assume that the
legislature tried to say what it meant; therefore, its words should be the
surest guide to its intent.  See Fitzgerald v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 866 (Tex. 1999); Segal v. Emmes Capital, L.L.C.,
155 S.W.3d 267, 286 (Tex. App.CHouston [1st Dist.] 2004, pet. dism=d).  It is a
well-settled rule of statutory construction that every word of a statute must
be presumed to have been used for a purpose.  Quick v. City of Austin, 7
S.W.3d 109, 123 (Tex. 1998).  Likewise, every word excluded from a statute must
also be presumed to have been excluded for a purpose.  Id.  This rule
complements another general statutory construction principle that courts should
not insert words into a statute except to give effect to clear legislative
intent.  Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659
(Tex.1995).




With the foregoing principles in mind, we conclude that
subsection (O) does not require that the parent who failed to comply with a
court order be the same parent whose abuse or neglect of the child warranted
the child=s removal.  Had the legislature intended such a
requirement, it could have easily provided that conservatorship be Aas a result of the
child=s removal from the
parent under Chapter 262 for the abuse or neglect of the child by the parent.@  It did not do
so, and we presume it did not do so for a purpose.  See Quick, 7 S.W.3d
at 123.  Moreover, although no Texas case appears to have addressed this
precise issue, we have identified at least two decisions in which termination
of one parent=s rights under subsection (O) was upheld where the
abuse was committed by the other parent, thereby implying that subsection (O)
does not require that the parent who failed to comply with a court order be the
same parent whose abuse or neglect resulted in the child=s removal.  See
In re C.D.B., 218 S.W.3d 308, 309B12 (Tex. App.CDallas 2007, no
pet.) (upholding termination of mother=s parental rights
under subsection (O) where mother failed to comply with provisions of court
order establishing actions necessary for return of children, who had been in
DFPS conservatorship for not less than nine months as result of their removal
under Chapter 262, for father=s abuse of one of the children during mother=s absence); see
also In re S.M., No. 04-04-00194-CV, 2005 WL 418540, at *2B4 (Tex. App.CSan Antonio Feb.
23, 2005, no pet.) (mem. op.) (finding sufficient evidence to support
termination of mother=s parental rights under subsection (O)
where mother failed to comply with family service plan outlining requirements
to obtain return of children, who had been in DFPS conservatorship for not less
than nine months as result of their removal for boyfriend=s physical abuse
of one of the children).
DFPS
also contends that there is no authority for appellant=s claim that subsection (O) requires
proof of abuse or neglect and cites to In re J.F.C., 96 S.W.3d 256 (Tex.
2002) in support of its argument.  However, this argument was recently rejected
in In re A.A.A., 265 S.W.3d 507, 513B15 (Tex. App.CHouston [1st Dist.] 2008, pet.
denied).[1]  In A.A.A.,
the appellant challenged the termination of her parental rights under
subsection (O) on the grounds that her child was not removed from her as a
result of abuse or neglect but solely because she had been arrested and was
unable to return to the child at the shelter.  See id. at 513.  DFPS
argued, inter alia, that the supreme court had previously addressed the
issue of whether Aabuse or neglect@ are requirements of section
161.001(1)(O) in J.F.C.  Id. at 514. 




 In J.F.C.,
the court held that section 161.001(1)(O) was conclusively established but did
not address whether the child at issue was removed for abuse or neglect.  See
In re J.F.C., 96 S.W.3d at 278B79.  DFPS argued that, by not
mentioning that the child was removed for abuse or neglect, the J.F.C. court
eliminated abuse or neglect as a required element of subsection (O).  See In
re A.A.A., 265 S.W.3d at 514.  The A.A.A. court disagreed, noting
that the specific question of whether a child must be removed under
Chapter 262 for that child=s own abuse or neglect was not brought before the court in J.F.C. 
See id.  Instead, the court had been asked to address the constitutionality of
the broad-form jury charge on parental termination used by the trial court.  In
re J.F.C., 96 S.W.3d at 277.  The court did not reach this issue, however,
because it held that the evidence established parental conduct pursuant to
section 161.001(1)(O) as a matter of law.  Id.
After noting that several decisions had treated a finding
of abuse or neglect of the child to be a required element, the court in A.A.A.
concluded that Abecause the supreme court did not
expressly hold [in J.F.C.] that >removal under
Chapter 262 for abuse or neglect of the child= is not an
element of subsection 161.001(1)(O), we must adhere to the unambiguous language
of the statute.@  In re A.A.A., 265 S.W.3d at 515
(emphasis in original).  The court then proceeded to consider whether DFPS had
proved by clear and convincing evidence that the child was removed under
Chapter 262 for abuse or neglect.  Id. at 515B16.
We agree with the court=s analysis in A.A.A.
and, likewise, conclude that Aabuse or neglect@ is a required
element of section 161.001(1)(O).  Thus, we must determine whether the evidence
is sufficient to support the trial court=s finding that
S.N., S.M.N., and D.A.N. were removed because of abuse or neglect.




On November 25, 2005, DFPS received a referral alleging
neglectful supervision and physical neglect of the children by Vidaure. 
Pursuant to section 262.104, which allows for emergency removal without a court
order, DFPS took the children into custody.  See Tex. Fam. Code
Ann. ' 262.104 (Vernon Supp. 2007).  Attached to DFPS=s Original
Petition is an affidavit, signed by a DFPS case worker on November 28, 2005. 
In it, the case worker stated that when officers from the Baytown Police
Department arrived at the home at 2:15 p.m., they found the children home
alone, as well as two cat litter boxes overflowing with cat feces, cat feces on
Vidaure=s bed, a soiled
mattress in the children=s room, dirty dishes in the sink, and
spoiled milk in the refrigerator.  The children told the officers that their
mother had left at 2:00 a.m., returned to leave doughnuts, and then left
again.  After waiting forty-five minutes for Vidaure, the officers left with
the children.  Vidaure arrived later at the police department and was arrested
for abandonment of the children.  When questioned by one of the officers as to
her whereabouts, Vidaure told the officer that she had gone to the store to
purchase milk.  However, the officer informed the case worker that there was a
corner store that sells milk approximately 300 yards from the house, and that
she had not been in there.  Vidaure later told the case worker that she had
left home at 2:30 p.m. to get some diapers for D.A.N. and that a neighbor had
checked in on the children from time to time.  The trial court subsequently
issued a temporary order naming DFPS as the children=s temporary
managing conservator, finding, in part, that Athere was a danger
to the physical health or safety of the children@ and that Athere is a
substantial risk of a continuing danger if the children are returned home.@  We conclude that
the evidence is legally and factually sufficient to support the trial court=s finding that the
children were removed under Chapter 262 for neglect.  We overrule appellant=s fourth issue.[2]




B.      Best
Interest of the Child
In his fifth issue, appellant challenges the legal and
factual sufficiency of the trial court=s finding that
termination was in the children=s best interest pursuant to section
161.001(2).
There is a strong presumption that the best interest of the
child is served by keeping the child with its natural parent, and the burden is
on the Department to rebut that presumption.  In re S.M.L., 171 S.W.3d
at 480; In re U.P., 105 S.W.3d at 230.  The same evidence of acts or
omissions used to establish grounds for termination under section 161.001(1)
may be probative in determining the best interest of the child.  In re
A.A.A., 265 S.W.3d at 516.  In reviewing the sufficiency of the evidence to
support the second prong, a court examines several factors, including (1) the
desires of the child, (2) the present and future physical and emotional needs
of the child, (3) the present and future emotional and physical danger to the
child, (4) the parental abilities of the persons seeking custody, (5) the
programs available to assist those persons seeking custody in promoting the
best interest of the child, (6) the plans for the child by the individuals or
agency seeking custody, (7) the stability of the home or proposed placement,
(8) acts or omissions of the parent which may indicate the existing parent‑child
relationship is not appropriate, and (9) any excuse for the parent=s acts or
omissions.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re
S.M.L., 171 S.W.3d at 480; In re U.P., 105 S.W.3d at 230.  This list
is not exhaustive, nor is evidence required on all nine factors to support a
finding terminating a parent=s rights.  Holley, 544 S.W.2d at
372; In re U.P., 105 S.W.3d at 230.  With these considerations in mind,
we review the evidence below.




We begin by considering the desires of the children. 
Connie Patterson, the therapist of S.N. and S.M.N., testified that S.N. and
S.M.N. have each told her that they want to move forward and have discussed the
possibility of staying in their foster home on a permanent basis.  Two weeks
before trial, S.N. told Patterson that she had Asomething really
good@ to tell herCher foster parents
wanted to adopt all three of them.  Patterson testified that when S.N. gave her
the news, S.N. was Aextremely excited, jumping all around.@ She further
testified that S.N. and S.M.N. have never talked about appellant unless she
mentions him first and that they consider their foster parents to be their
parents.  Likewise, Patterson testified that D.A.N. is completely attached to
his foster parents and believes they are his parents.  She believes that
although the children have ambivalent feelings about appellant, and it would be
sad for them to lose their parents, they are ready to move forward.  Several
months before trial, S.N. and S.M.N. also told Ed Thompson, the court-appointed
children=s advocate, they
wanted to be adopted by their foster parents.  Thompson testified that, at the
time of trial, the children had not mentioned appellant in over seven months.




We next examine the children=s present
emotional or physical considerations now and in the future.  Patterson
testified that when she first met S.N. and S.M.N., they were traumatized and
very sensitive to the abandonment issue and that it was very difficult to speak
to them without them crying.  S.N. worried a lot about the instability of their
situation.  According to Patterson, S.N. was a very Aparentified@ child, i.e.,
she acted as if she were her younger siblings= mother, and
S.M.N. and D.A.N. deferred to her as if she were their mother.  However,
Patterson also testified that the children=s foster parents
are working with S.N. on her tendency to give her brother and sister
instructions and that S.N. is making consistent progress in that regard.  She
also testified that S.N. and S.M.N. were behind developmentally in school and
that DFPS had received reports from their school regarding acting out
behavior.  In her opinion, the children would not sustain any permanent damage
if appellant=s parental rights were terminated.  She further
testified that she believed termination of appellant=s parental rights
was in the children=s best interest because the children were
in danger of developing reactive attachment disorder if they were returned to
an unstable environment.  Although she acknowledged that she did not know
whether appellant was in an unstable situation, she testified that there was
evidence presented at trial that concerned her.  If appellant=s parental rights
were not terminated, she could prepare the children to return to him provided
that they receive on-going therapy and that a system be put into place to
ensure their safety and nurturing.




With regard to appellant=s parental
abilities, appellant was in jail for driving with a suspended license at the
time DFPS removed the children on November 25, 2005.  In February 2006,
appellant was again arrested and served approximately eighteen days in jail.
Appellant visited his children until April 2006 but did not visit them between
April 2006 and the date of trial because he mistakenly believed that his
visitation rights had been terminated.[3] 
If the children were returned to him, appellant testified he would upgrade his
current one-bedroom apartment that he shares with his grandmother to a
three-bedroom apartment.  Appellant testified he is disabled from a
work-related back injury and receives $711 in monthly disability payments.  He
planned to support his children with the disability payments and food stamps. 
Appellant would also have help caring for the children from his grandmother and
has an emergency contact in his apartment complex who could drive to the
doctor.  Prior to his incarceration in February 2006, appellant had attended
two or three parenting classes but did not complete the program and other
aspects of the family services plan because he lacked transportation. 
Patterson testified that S.N. told her that she, rather than appellant, had
been responsible for feeding S.M.N. and D.A.N., putting them to bed, and
dressing them in the morning.  DFPS supervisor Aisha Jones testified she was
concerned that appellant was taking some potentially addictive medications for
his back injury and also for anxiety, but she was unaware of any drug problem. 
Thompson testified that appellant was a very loving father and the children
appeared to bond very well with him during the two family meetings he attended,
but that his visits were inconsistent.  The children eventually quit mentioning
him and now consider the foster parents to be their parents.
As for available programs, appellant testified that he
receives food stamps and $711 in monthly disability income.  With regard to the
plans for the children, the foster parents have expressed a desire to adopt all
three children.  Patterson testified that the children are doing Asuperb@ in their foster
home and are becoming very well adjusted.  Thompson, who saw the children
regularly, testified that they were doing Aexceedingly well@ in their foster
home.
Finally, we consider appellant=s acts or
omissions indicating that the existing parent-child relationship is improper
and any excuses he has for his behavior.  Appellant was incarcerated for a
suspended driver=s license at the time his children were
removed in November 2005 and again in February 2006 for outstanding traffic
violations.  Appellant visited his children until April 2006, but his visits
were inconsistent, and he did not visit them between April 2006 and the date of
trial based on a mistaken belief that his visitation rights had been
terminated.  He subsequently tried to contact DFPS on a couple of occasions and
left several messages for the case worker, but no one ever returned his call. 
He testified that his failure to complete parenting classes and other parts of
the family services plan was due to a lack of transportation.




Viewing the evidence in the light most favorable to the
judgment, we conclude that a reasonable trier of fact could have formed a firm
belief or conviction that the best interest of S.N., S.M.N., and D.A.N. would
be served by termination of appellant=s parental
rights.  Based upon our review of the entire record, we conclude that a fact
finder could reasonably form a firm conviction or belief that the termination
of his parental rights would be in the children=s best interest. 
We therefore find the evidence legally and factually sufficient to support the
trial court=s finding.  We overrule appellant=s fifth issue.
Having overruled issues four and five with regard to the
trial court=s findings under section 161.001(1)(O) and the
children=s best interest,
we need not address appellant=s third issue challenging the trial court=s findings under
subsection (N).  In re T.T., 228 S.W.3d 312, 321 n.8 (Tex. App.CHouston [14th
Dist.] 2007, pet. denied).
C.      Sole
Managing Conservator
Having affirmed the termination of appellant=s parental rights,
we consider his sixth issue, which asks whether the appointment of DFPS as sole
managing conservator should be reversed.  However, because appellant asks us to
consider this issue only if we conclude that the trial court erred in
terminating his parental rights, we need not address it.
D.      Constitutionality
of Family Code Section 263.405(i)
In his
first issue, appellant urges us to consider Awhether ' 263.405 is unconstitutional to the
extent it requires appellant to identify appellate points prior to the appeal
being perfected and before the trial court must file findings of fact and
conclusions of law.@  Specifically, he contends that section 263.405(i) places an
arbitrary and unreasonable barrier to appellate court consideration and, in
doing so, results in an unconstitutional deprivation of a parent=s due process rights, in violation of
the Texas and United States Constitutions.  See U.S. Const. amend. XIV ' 1; Tex.
Const. art. I, ' 19.
1.       Facially Unconstitutional




In addressing appellant=s constitutional
challenges to section 263.405, we begin with the premise that, when possible,
we must interpret a statute in a manner that renders it constitutional.  See
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000); Quick,
7 S.W.3d at 115.  We note that A[a] facial challenge to a statute is the
most difficult challenge to mount successfully because the challenger must
establish that no set of circumstances exists under which the statute will be
valid.@  Santikos v.
State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (citing United States
v. Salerno, 481 U.S. 739, 745 (1987)).  Thus, a party raising a facial
challenge to the constitutionality of a statute must demonstrate that the
statute always operates unconstitutionally.  See Neeley v. West Orange-Cove
Consol. Indep. Sch. Dist., 176 S.W.3d 746, 814 n.94 (Tex. 2005); Wilson
v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999).  As noted by the United States
Supreme Court in Salerno, that a statute Amight operate
unconstitutionally under some conceivable set of circumstances is insufficient
to render it wholly invalid, since we have not recognized an >overbreadth= doctrine outside
the limited context of the First Amendment.@  United States
v. Salerno, 481 U.S. 739, 745 (1987).  In reviewing a facial challenge to a
statute=s
constitutionality, we consider the statute as written, rather than as it operates
in practice.  See FM Props. Operating Co., 22 S.W.3d at 873.
Appellant asserts that section 263.405(i) is facially
unconstitutional to the extent that it requires a party to address in its
statement of points matters not found by the trial court until after the
deadline for filing the statement has expired.  Turning to the language of the
statute at issue, it 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.




Tex. Fam. Code Ann. ' 263.405 (Vernon
Supp. 2006).  Pursuant to Texas Rule of Civil Procedure 296, a party may file a
request for findings of fact and conclusions of law within twenty days from the
date a judgment is signed.  See Tex.
R. Civ. P. 296.  Thus, juxtaposing section 263.405 with Rule 296, it is
possible that a court might issue findings and conclusions after the due date
for the statement of points has expired, as was the case here.
However, as discussed above, just because a statute Amight operate
unconstitutionally under some conceivable set of circumstances is insufficient
to render it wholly invalid.@  See Salerno, 481 U.S. at 745. 
Instead, a party seeking to invalidate a statute must establish that every
application of the statute violates the constitution.  See Nootsie, Ltd. v.
Williamson Co. Appraisal Dist., 925 S.W.2d 659, 663 (Tex. 1996).  We note
that a party who appeals a termination where the only alleged trial court error
occurred prior to the due date for filing a statement of points would not be
required to address in its statement matters found by the trial court after
expiration of the due date.  Moreover, it is conceivable that where a party
promptly requests findings of fact and conclusions of law, a trial court could
file its findings and conclusions prior to expiration of the due date for the
statement of points.  Further, the Texas Supreme Court recently held that,
under Texas Rule of Civil Procedure 5, a trial court may grant a party=s motion to extend
time for filing a statement of points for appeal under section 263.405.  See
In re M.N., No. 07-0698, __ S.W.3d __, 2008 WL 3991189, at *5 (Tex. Aug.
29, 2008).  Thus, a trial court may grant a party=s motion to
enlarge time for filing a statement of points where the party shows good cause
for its failure to timely file it.  Tex.
R. Civ. P. 5.
Appellant=s suggestion that section 263.405 is
unconstitutional to the extent it requires a statement of points to include
matters not found by the trial court until after expiration of the fifteen-day
deadline is insufficient to demonstrate that the statute always operates unconstitutionally. 
Consequently, we reject appellant=s argument that
section 263.405(i) is facially unconstitutional.
2.       Unconstitutional
AAs Applied@




In the alternative, appellant asks us to find that section
263.405, as applied to him, is unconstitutional.  An Aas applied@ challenge only
requires the challenger to demonstrate that the statute operates
unconstitutionally when applied to the challenger=s particular
circumstances.  See Texas Workers= Comp. Comm=n v. Garcia, 893 S.W.2d 504,
518 n.16 (Tex. 1995); In re N.C.M., No. 04-08-00016-CV, __ S.W.3d. __,
2008 WL 3457028, at *1 (Tex. App.CSan Antonio Aug.
13, 2008, no pet. h.); In re B.S.W., 87 S.W.3d 766, 771 (Tex. App.CTexarkana 2002,
pet. denied).  
Here, the trial court signed the termination decree on
February 6, 2007.  On February 20, 2007Cfourteen days
laterCappellant=s appellate
counsel filed a combined statement of appellate points and motion for new
trial.  In his statement, appellant did not raise the issue of paternity as to
S.N. or S.M.N.  On February 21, 2007, appellate counsel filed a request for
findings of fact and conclusions of law.  On March 2, 2007, DFPS filed proposed
findings of fact and conclusions of law.  On March 13, 2007, following a
hearing, the trial court signed an order denying appellant=s motion for new
trial and issuing its findings of fact and conclusions of law.
Among its findings and conclusionsCwhich mirrored
those proposed by DFPS save oneCthe court found that the father of S.N.
and S.M.N. was unknown.  Appellant contends that because the termination decree
identified him as the father of S.N. and S.M.N. and the issue of paternity as
to S.N. and S.M.N. was only raised for the first time in DFPS=s proposed
findings of fact and conclusions of lawCand after the
fifteen-day deadline for filing his statement of points had passedCA[t]here was no
paternity question to raise in the Statement of Appellate Points.@  As such, he
contends that section 263.405(i) is unconstitutional as applied to him because
it required him to address an issue of which he was unaware before filing his
statement.




In support of his position that the decree identified him
as S.N. and S.M.N.=s father, appellant points to the heading
of paragraph 8, entitled ATermination of Respondent Father DAVID
ALLEN NEUENSCHWANDER, JR.=S Parental Rights,@ and argues that
if he was not the children=s father, there would have been no need to
terminate his parental rights.  He further asserts that he is not identified as
Aalleged father@ in the
termination decree, and that it is only in the findings of fact that the trial
court specifically stated that he was not the father of S.N. and S.M.N.[4] 
Thus, he concludes that because the trial court did not file its findings of
fact until after the fifteen-day period for filing a statement of points had
expired, he was prevented from raising the issue in his statement.  See Tex. Fam. Code Ann. 263.405(i).  We
disagree.




Contrary to appellant=s assertion,
sub-paragraph 1.3 of the decree provides, ARespondent Alleged
Father DAVID ALLEN NEUENSCHWANDER, JR. . . . duly and properly cited,
appeared in court@ (emphasis added).  Further, although
appellant is correct that paragraph 8 of the decree refers to ATermination of
Respondent Father DAVID ALLEN NEUENSCHWANDER, JR.=S Parental Rights,@ paragraph 6
clearly provides that appellant=s paternity is established as to D.A.N.
only and makes no mention of his paternity with regard to S.N. and S.M.N.[5] 
Moreover, paragraphs 9 and 10 are entitled  ATermination of the
UNKNOWN FATHER of [S.R.N.]=S Parental Rights@ and ATermination of the
UNKNOWN FATHER of [S.M.N.]=S Parental Rights.@  Thus, appellant
can hardly be heard to complain on appeal that he was unaware that the
paternity of S.N. and S.M.N. was in question until the court filed its findings
of fact and conclusions of law.  To the contrary, the decree made clear that
only his paternity as to D.A.N. was established.  As such, section 263.405(i)
did not require him to address an issue in his statement of points of which he
was unaware prior to filing it.  We therefore conclude that section 263.405(i)
is not unconstitutional as applied to him.[6] 
We overrule appellant=s first issue.
E.      Paternity
Findings
In his second issue, appellant contends that the evidence was
legally and factually insufficient to support the trial court=s finding
regarding his paternity as to S.N. and S.M.N.  Specifically, he contends that
there is no evidence to support the court=s Findings of Fact
3, 4, 7, 8, 9, 10, and 21.
On March 13, 2007, the court issued the following relevant
findings of fact:
3.       Appellant did not sign an acknowledgment of
paternity with the intent to establish his paternity for the children, [S.M.N.]
and [S.R.N.].
4.       Appellant did not register with the
paternity registry of the bureau of vital statistics as a father of either
[S.M.N.] or [S.R.N.].
7.       Appellant did not submit to DNA testing to
establish himself as the father of either the child, [S.M.N.] or [S.R.N.].
8.       No father has filed with the paternity
registry of the bureau of vital statistics as the father of either [S.M.N.] or
[S.R.N.].
9.       No man commenced a proceeding to adjudicate
his paternity to the children [S.M.N.] or [S.R.N.] at any time before judgment
was rendered in this case.
10.     The father of [S.M.N.] and [S.R.N.] is
unknown.
21.     There is
clear and convincing evidence that the Department of Family and Protective
Services exercise[] due diligence to determine the location and identify [sic]
of the father(s) of [S.M.N.] and [S.R.N.]. 




DFPS asserts that appellant failed to preserve his
complaint regarding the court=s decision not to declare him the father
of S.N. and S.M.N.  In support of its argument, DFPS emphasizes that the
termination decree declared appellant only to be the father of D.A.N. and also
terminated the parental rights of the unknown fathers of S.N. and S.M.N.  DFPS
contends that because appellant made no attempt to complain about those
portions of the court=s judgment, either in a motion to modify
judgment or for new trial, or in his statement of appellate points, he failed
to preserve his complaint for review.
Appellant disputes this contention, but he does not
demonstrate how he complained about the trial court=s failure to
adjudicate him as the father of S.N. and S.M.N.  In light of our disposition of
his first issue, and because appellant failed to present the issue of his
paternity as to S.N. and S.M.N. to the trial court in his statement of points
as required under section 263.405(i), we are precluded from considering this
issue on appeal.  Issue two is overruled.
IV.  CONCLUSION
For the foregoing reasons, we affirm the trial court=s judgment.
 
/s/      Leslie B. Yates
Justice
 
 
Panel consists of Justices Yates, Anderson, and Brown.




[1]  In his Response to Appellee=s Brief, appellant cites to the court=s original opinion rendered in this case, In re
A.A.A., No. 01-07-00160-CV, 2008 WL 201033 (Tex. App.CHouston [1st Dist.] Jan. 24, 2008).  However, the
court subsequently granted DFPS=s motion for
rehearing, withdrew its original opinion, and issued In re A.A.A., 265
S.W.3d 507 (Tex. App.CHouston [1st Dist.] 2008, pet. denied), in its stead.


[2]  In his Motion for Rehearing, appellant contends the
affidavit could not be considered as evidence to support the trial court=s judgment because DFPS never offered it into evidence
at trial.  DFPS filed the affidavit to provide proof of neglect in support of
its initial request for emergency removal of the children, and the trial court
relied upon the affidavit in granting the request.  In its response, DFPS
counters that the trial court and this court could take notice of the fact that
the affidavit had been provided as proof for its request for emergency
removal.  In support of its position, it cites two opinions in which the
appeals courts considered the affidavits attached to DFPS=s petitions in finding the evidence of abuse or
neglect sufficient to uphold the trial courts= findings.  See In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.CHouston [1st Dist.] 2008, pet. denied); In re M.B.,
No. 07-04-0334-CV, 2004 WL 2867544, at *2 (Tex. App.CAmarillo Dec. 14, 2004, no pet.) (mem. op., not
designated for publication).  However, we need not decide this issue because
the evidence in question also appears in the family service planCwhich was admitted into evidence at trial without
objectionCin nearly identical language.  Moreover, while
questioning DFPS supervisor Aisha Jones about appellant=s failure to comply with the plan requirements,
appellant=s trial counsel stated, AThe main thing [appellant] is here for are things the mother did,
right?  She had a messy apartment.  She didn=t
change the cat=s litter pans.  She walked off to get milk and
abandoned the children.@  Thus, error, if any, was harmless.  See In re
W.E.C., 110 S.W.3d 231, 248 (Tex. App.CFort
Worth 2003, no pet.) (concluding any error in admitting substance of mother=s privileged communications to drug treatment
counselor was harmless, in proceedings to terminate mother=s parental rights, where other evidence, including
mother=s testimony and that of caseworkers, therapists, and
friends, established same facts).


[3]  During this last visit, appellant, his grandmother, Vidaure, and her
boyfriend went to visit the children.  Vidaure entered the building to talk to
the children=s case worker and, upon her return,
she told appellant that their visitation was cancelled.  As they stood outside
talking, a security guard approached them, accompanied by the case worker, and
told them to leave the premises.  Appellant later learned that Vidaure=s visitation had been cancelled
because she had lice.  Appellant did not visit his children again.  He testified that he believed his visitation rights had been
terminated, although he also testified that no one at DFPS told him that he
could not see his children.


[4]  Appellant=s
contention that A[i]t was only in the Findings of Fact that the trial
court specifically stated that appellant was not the older two children=s father@ is
inaccurate.  Finding of Fact No. 10, to which we presume appellant refers,
states, AThe father of [S.M.N.] and [S.R.N.]
is unknown.@  This is not the same as stating
that appellant is not the father of S.N. and S.M.N.  In fact, Finding No. 10 arguably goes no further
regarding appellant=s paternity as to S.N. and S.M.N. than the decree,
which established his paternity as to D.A.N. only and provided for termination
of the unknown fathers= rights to S.N. and S.M.N.


[5]  Paragraph 6 of the decree provides, in relevant
part:
 
Establishment of Paternity: DAVID ALLEN
NEUENSCHWANDER, JR.
 
IT IS
ORDERED AND DECREED that DAVID
ALLEN NEUENSCHWANDER, JR. is, and he is hereby declared to be, the father
of the child [D.A.N.] . . . .@


[6]  We note that one other court of appeals has reached
a similar conclusion, albeit on other grounds.  See In re A.T.S., No.
12-07-00196-CV, 2008 WL 2930392, at *18B19
(Tex. App.CTyler July 31, 2008, no pet. h.) (mem. op.).  In that
case, the appellants argued that section 263.405 was unconstitutional in its
application because the fifteen-day deadline for filing a statement of points
required them to address findings of fact and conclusions of law that had not
yet been filed.  See id. at 18.  The court stated A[b]ecause interpreting Section 263.405(i) to mean that
[the appellants] cannot complain of alleged errors involving findings of fact
and conclusions of law filed or omitted after Section 263.405(b)=s deadline leads to an absurd result, we conclude that
Section 263.405(i) does not apply to alleged errors occurring after the fifteen
day deadline.  Therefore, Section 263.405(i) is not unconstitutional on this
basis.@  Id. at 19.


