                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00054-CV

                   IN THE INTEREST OF M.V.G., A CHILD




                          From the 413th District Court
                             Johnson County, Texas
                           Trial Court No. D200706344


                                    OPINION


      The mother and father of the child the subject of this suit have each perfected an

appeal from the order terminating their parental rights. The mother contends in her

sole issue that the evidence is legally and factually insufficient to support any of the

predicate grounds for termination or the court’s finding that termination is in the best

interest of the child. The father contends in five points that: (1) the court erred by

denying his request for a jury trial; (2) the court erred by rendering a default judgment

against him; (3) the evidence is insufficient to support the termination order; (4) this

appeal is not frivolous; and (5) section 263.405 of the Family Code is unconstitutional.

We will affirm.
                                            BACKGROUND

        The mother “Patricia”1 gave birth to M.V.G. in a Galveston hospital while she

was incarcerated for a state jail felony. The father “Joel” lived in Cleburne. The day

after M.V.G.’s birth, Patricia gave Joel’s contact information to CPS caseworker Linda

Lawrence and told her that he was making arrangements for M.V.G. to live with him.

Two days later, CPS supervisor Marty Samaniego talked to Joel and tried to arrange a

meeting. Joel said that he could not talk at the moment because of work, so Samaniego

advised him that the Department was taking emergency custody of M.V.G. and there

would be an emergency removal hearing. Joel told Samaniego that Patricia and he

wanted custody of M.V.G. and planned to move to Puerto Rico where his family lives.

        During the next eleven months, the usual hearings were conducted.                                 The

Department essentially did not provide services to Patricia for eleven months because

of her incarceration. She was released from custody just over ten months after M.V.G.’s

birth and returned to Cleburne. The court extended the statutory dismissal date for

ninety days. Patricia visited M.V.G. about fourteen times after her release, but she

never completed any of the tasks required by the family service plan. At the last

hearing before trial, Patricia testified about various difficulties in obtaining these

services.

        For his part, Joel visited M.V.G. regularly during the first eight months of the

Department’s involvement but never completed any of the required tasks.                                    He


1
        To protect the identity of the child who is the subject of this suit, we shall refer hereinafter to the
parents by pseudonyms. See TEX. FAM. CODE ANN. § 109.002(d) (Vernon 2008); TEX. R. APP. P. 9.8(b)(2).



In re M.V.G.                                                                                            Page 2
disagreed with the Department’s efforts to pursue drug screening by a hair follicle test,

stating his preference for urinalysis. He filed a motion for visitation which the court

heard shortly after M.V.G.’s first birthday. The court denied the motion after Joel

informed the court that he would not submit to the hair follicle test.

       Joel did not appear for trial. Patricia announced that she was waiving her right

to jury trial. The court ruled that Joel waived his right to jury trial under Rule of Civil

Procedure 220 by failing to appear. See TEX. R. CIV. P. 220. The court also pronounced

its rendition of “a post answer default judgment” against him. At the conclusion of a

three-day bench trial, the court rendered judgment terminating Patricia’s parental

rights. The court signed its Order of Termination almost three weeks later.

                                   PATRICIA’S APPEAL

       In her sole issue, Patricia contends that the evidence is legally and factually

insufficient to support any of the predicate grounds for termination or the finding that

termination is in the best interest of the child.

              In a legal sufficiency review, 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.

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re T.N.F., 205 S.W.3d 625, 630 (Tex. App.—

Waco 2006, pet. denied).


In re M.V.G.                                                                           Page 3
       In conducting a factual sufficiency review, “a court of appeals must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing.” Id.

       [T]he inquiry must be “whether the evidence is such that a factfinder
       could reasonably form a firm belief or conviction about the truth of the
       State’s allegations.” A court of appeals should consider whether disputed
       evidence is such that a reasonable factfinder could not have resolved that
       disputed evidence in favor of its finding. If, 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.

J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (footnotes

omitted); T.N.F., 205 S.W.3d at 630.

       CPS alleged and the trial court found four predicate grounds for termination,

namely, that Patricia: (1) knowingly placed or allowed M.V.G. to remain in dangerous

conditions or surroundings; (2) engaged in conduct or knowingly placed M.V.G. with

persons who engaged in conduct which endangered her; (3) constructively abandoned

M.V.G.; and (4) failed to comply with a court order that established the actions

necessary for the return of M.V.G. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (N),

(O) (Vernon Supp. 2009). We may affirm if the evidence is sufficient with respect to any

one of these predicate grounds. T.N.F., 205 S.W.3d at 629.

                              Constructive Abandonment

              A parent constructively abandons a child when (1) the child has
       been in the permanent or temporary managing conservatorship of the
       State or an authorized agency for not less than six months, (2) the State or
       the authorized agency has made reasonable efforts to return the child to
       the parent, (3) the parent has not regularly visited or maintained


In re M.V.G.                                                                           Page 4
       significant contact with the child, and (4) the parent has demonstrated an
       inability to provide the child with a safe environment.

In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.); accord Earvin

v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 348 (Tex. App.—Houston [1st Dist.]

2007, no pet.); see TEX. FAM. CODE ANN. § 161.001(1)(N).

                               (1) Purposeful Abandonment

       With regard to the first element, Patricia concedes that M.V.G. was in foster care

for at least six months but disputes that M.V.G. was in foster care because of any

purposeful abandonment on Patricia’s part. See Earvin, 229 S.W.3d at 349 (no evidence

parent “purposefully had little interaction with S.M.E.”). Patricia refers to evidence that

Joel and she planned for him to get M.V.G. from the hospital and take her to Puerto

Rico where they would live with their extended family. Patricia argues that they never

had a chance to carry out their plans because the Department did not contact Joel before

removing M.V.G. even though she had given his contact information to CPS caseworker

Lawrence at the hospital. CPS investigator Tina Herrera confirmed in her testimony

that she did not contact Joel until after taking custody of M.V.G.         However, she

arranged for Joel to visit M.V.G. a few days after she was brought to Cleburne.

       Joel attended the emergency removal hearing the next day. He told the court of

his plans to leave for Puerto Rico thirteen days later and asked if he could take M.V.G.

with him if he had a “clean” drug test. The court advised that another hearing would

need to be held and, if Joel had “some clean drug tests,” then the court would consider

his request. Joel did not take a drug test and left for Puerto Rico. He did not appear in



In re M.V.G.                                                                         Page 5
court again until six months later. He submitted to only one drug test (by oral swab)

during the fourteen months the case was pending, refused to submit to urinalysis or

hair follicle drug tests ordered by the court, and wholly failed to comply with his

service plan.

        Imprisonment, standing alone, does not constitute constructive abandonment. In

re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet. denied); see In re N.S.G.,

235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.).

        [But] it is simply a “cop-out” (in the vernacular of the 70’s) for anyone to
        conclude that prison ipso facto prevents (or relieves) the parent from
        providing the child a safe environment. Again, the incarcerated parent
        may be able to work through surrogates, such as relatives, spouses, or
        friends, to fulfill that obligation. And, if he so arranges and those
        surrogates agree to the arrangement, it is hard to deny that the parent has
        taken steps to provide or effectively provided a safe environment. To
        suggest otherwise would be to suggest that military personnel cannot
        provide for their children because they may be assigned overseas to
        combat duty. In that situation, family is often available to step in and
        help. The same can be no less true when a parent is incarcerated.

In re D.S.A., 113 S.W.3d 567, 573-74 (Tex. App.—Amarillo 2003, no pet.).

        Here, Patricia made arrangements for Joel to take custody of M.V.G. during her

incarceration, but he failed to take the necessary actions to gain custody. Patricia also

informed the Department that relatives in Puerto Rico might be able to care for M.V.G.

However, CASA volunteer Gloria Johnson testified that she talked to one of those

relatives and was convinced from that conversation that there was no appropriate or

safe environment available for M.V.G. in Puerto Rico.2



2
        Joel’s mother lives in Puerto Rico and currently has custody of eight of Patricia’s and his other
children.


In re M.V.G.                                                                                      Page 6
       Considering all the evidence in a neutral light, we hold that the evidence is such

that the court “could reasonably form a firm belief or conviction” that Patricia

constructively abandoned M.V.G. by leaving her in Department custody for at least six

months without providing an alternative, safe, and appropriate custody arrangement

for her. See D.S.A., 113 S.W.3d at 572 (evidence factually sufficient where incarcerated

parent’s mother testified that a relative would take the children but it never happened).

Thus, the evidence is factually sufficient on this element, and because the evidence is

factually sufficient, it is necessarily legally sufficient. Id. at 573.

                            (2) Reasonable Efforts to Return the Child

       The second element is whether the Department “made reasonable efforts to

return the child.” TEX. FAM. CODE ANN. § 161.001(1)(N)(i). Patricia contends that the

Department failed to make reasonable efforts because: (1) it did not formally serve her

with citation until three months after taking M.V.G.; (2) it did not provide services for

her while she was incarcerated; (3) the assigned caseworker sent letters to her in English

even though she speaks Spanish; (4) the Department contacted only one other family

member for alternative placement; and (5) it failed to arrange transportation for her to

obtain counseling and other required services.

       “The State’s preparation and administration of a service plan for the parent

constitutes evidence that the State made reasonable efforts to return the child to the

parent.” M.R.J.M., 280 S.W.3d at 505; accord M.C. v. Tex. Dep’t of Family & Protective

Servs., 300 S.W.3d 305, 309-10 (Tex. App.—El Paso 2009, pet. denied); Liu v. Dep’t of




In re M.V.G.                                                                        Page 7
Family & Protective Servs., 273 S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no

pet.).

         We first observe that Patricia relies in part on testimony from various pretrial

hearings to show that the Department had failed to promptly conduct a home study of

Joel’s mother’s home in Puerto Rico, had been given the names of “more than one”

relative to contact but only contacted one,3 and had assured the court that it would

provide services to Patricia while she was incarcerated. She also relies on her own

testimony from a December permanency hearing to show that the Department had

notice that she did not have reliable transportation to drive to Dallas or Fort Worth for

Spanish counseling and other services. However, this testimony was not admitted at

trial. See In re C.L., No. 10-09-00117-CV, 2009 WL 3319932, at *4-5 (Tex. App.—Waco

Oct. 14, 2009, no pet.) (evidence legally insufficient to support termination where trial

court did not take judicial notice of prior orders or hearings).

         Nevertheless, the testimony at trial established that the Department provided no

services to Patricia while she was incarcerated, but CPS caseworker Tonya Gilley

testified that the Department had no contract services available at the state jail where

she was located. Upon Patricia’s release, a visit with M.V.G. was arranged for her

within a week. She received her first service plan about two weeks later on October 15.

She had more than three months to work on the tasks set out in the service plan but

failed to do any of them.



3
        In fact, the caseworker testified, “The only relatives [sic] available that I’ve been given [who] are
in Puerto Rico is [sic] the grandmother that had received the previous children.”


In re M.V.G.                                                                                          Page 8
       Patricia testified that she does not understand the English language and could

not read the letters sent to her by caseworkers, but Gilley testified that Patricia had

communicated in the past with limited English.                 In any event, once Patricia was

released, a Spanish translator was provided whenever she met with the caseworker,

and Spanish language services were made available to her as well.

       Regarding transportation, Patricia testified that she asked the Department for

help with transportation, but CPS Diann Ames testified that she did not know until

Patricia testified at trial that her van did not have a current registration. She had seen

Patricia driving the van to visits and assumed it was roadworthy. She did recall that

Patricia testified at the December permanency hearing that the van did not have a

current inspection sticker.

       There is conflicting testimony on this element, and there probably are things the

Department could have done differently, but the issue is whether the Department made

“reasonable efforts” not ideal efforts.

       Considering all the evidence in a neutral light, we hold that the evidence is such

that the court “could reasonably form a firm belief or conviction” that the Department

made reasonable efforts to return M.V.G. Thus, the evidence is factually sufficient on

this element, and because the evidence is factually sufficient, it is necessarily legally

sufficient. See D.S.A., 113 S.W.3d at 573.

                                          (3) Regular Visits

       The third element is whether Patricia has “regularly visited or maintained

significant contact with [M.V.G.]” TEX. FAM. CODE ANN. § 161.001(1)(N)(ii). On this


In re M.V.G.                                                                             Page 9
issue, Patricia refers to letters she mailed to the caseworker while she was incarcerated,

and the fourteen visits she had with M.V.G. from October to December. However,

Gilley testified that the Department received only two letters from Patricia during the

eleven months she was incarcerated. Also, Patricia refused to submit to a drug test in

early December, missed a scheduled visit one week later, and did not have a single visit

with M.V.G. for more than a month and a half before trial.

       There is conflicting testimony on this element as well. But the court could have

been persuaded more by Patricia’s lack of effort to maintain contact with M.V.G. during

the first eleven months of her life and the lack of visits during the two months before

trial than by the frequent visits she had between October and December.

       Considering all the evidence in a neutral light, we hold that the evidence is such

that the court “could reasonably form a firm belief or conviction” that Patricia failed to

regularly visit or maintain significant contact with M.V.G.         Thus, the evidence is

factually sufficient on this element, and because the evidence is factually sufficient, it is

necessarily legally sufficient. See D.S.A., 113 S.W.3d at 573.

                                    (4) Safe Environment

       The final element is whether Patricia “demonstrated an inability to provide

[M.V.G.] with a safe environment.” Id. § 161.001(1)(N)(iii). Here, Patricia refers to the

Department’s failure to explore placement alternatives in Puerto Rico and the failure to

re-visit her home after an initial visit in early October. However, Ames testified that she

went to Patricia’s home three times after the initial visit but no one answered the door

even though the van was in the driveway. Johnson testified that she visited later and it


In re M.V.G.                                                                          Page 10
did appear that Patricia had been cleaning the house and had obtained a baby bed for

M.V.G., but Johnson also testified that she was aware of “no facts to prove that [Patricia

and Joel] are capable of providing the environment that [M.V.G.] requires.” In addition,

Johnson testified that she made several phone calls to Puerto Rico and was convinced

that there was no appropriate or safe environment available for M.V.G. in Puerto Rico.

       Considering all the evidence in a neutral light, we hold that the evidence is such

that the court “could reasonably form a firm belief or conviction” that Patricia

“demonstrated an inability to provide [M.V.G.] with a safe environment.” Thus, the

evidence is factually sufficient on this element, and because the evidence is factually

sufficient, it is necessarily legally sufficient. See D.S.A., 113 S.W.3d at 573.

                                           Summary

       There is conflicting evidence in the record, but we conclude that the evidence is

legally and factually sufficient to support the court’s finding of constructive

abandonment under section 161.001(1)(N).

                                    Best Interest of Child

       Patricia also challenges the sufficiency of the evidence to support the best interest

finding.

       The primary factors to consider when evaluating whether termination is in the

best interest of the child are the familiar Holley factors, which include:

       (1) the desires of the child; (2) the emotional and physical needs of the
       child now and in the future; (3) the emotional and physical danger to the
       child now and in the future; (4) the parental abilities of the individuals
       seeking custody; (5) the programs available to assist these individuals to
       promote the best interest of the child; (6) the plans for the child by these


In re M.V.G.                                                                          Page 11
       individuals or by the agency seeking custody; (7) the stability of the home
       or proposed placement; (8) the acts or omissions of the parent which may
       indicate that the existing parent-child relationship is not a proper one; and
       (9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); T.N.F., 205 S.W.3d at 632.

       Desires of the Child: Because of M.V.G.’s age, there is no evidence relevant to this

factor. See In re S.N., 272 S.W.3d 45, 51-52 (Tex. App.—Waco 2008, no pet.).

       Child’s Emotional and Physical Needs: M.V.G. has the usual emotional and physical

needs of a toddler. The foster parents are currently meeting her needs in a safe and

secure environment. There is limited evidence with regard to whether Patricia can

adequately provide for her needs because they have had so little interaction outside of

the scheduled visits.   However, the record does contain evidence giving rise to a

concern about Patricia’s ability to provide for M.V.G.’s needs because she: (1) has not

provided information regarding her family income and expenses; (2) apparently does

not have reliable transportation; (3) has not allowed a follow-up visit inside her home;

(4) declined to submit to drug testing; and (5) did not work on her service plan. In

addition, some testimony was presented at trial raising a possibility that Patricia had

moved out of the house she shared with Joel, but she was not asked about this during

her own testimony. Thus, the record contains conflicting evidence on this issue.

       Emotional and Physical Danger to Child: The primary evidence relevant to this

factor is Patricia’s refusal to submit to a drug test and her failure to allow a follow-up

visit inside her home. This evidence supports a finding that Patricia poses a present or

future risk of danger to M.V.G. Id. at 52-53.



In re M.V.G.                                                                           Page 12
       Parental Abilities: Patricia interacted appropriately with M.V.G. during her visits.

She did not participate in parenting classes and other services which would have

potentially enhanced her parental abilities. Thus, the record contains conflicting

evidence on this issue. Id. at 53.

       Available Programs: Patricia did not participate in the programs that were made

available to her. There is no evidence that this would change in the future. Thus, the

evidence relevant to this factor supports the best-interest finding. Cf. id.

       Plans for the Child: Patricia planned to take M.V.G. to Puerto Rico to be reunited

with her siblings. She was consistent with her plans for M.V.G. from her birth. Thus,

the evidence relevant to this factor does not support the best-interest finding. Id.

       Stability of the Home: We have already discussed at length the evidence relevant to

the stability of Patricia’s home. The evidence relevant to this factor supports the best-

interest finding. See id. at 53.

       Patricia’s Acts and Omissions (and Excuses): Patricia established a good pattern of

visitation with M.V.G. after her release from custody. She also indicated that she was

working to clean up her home to provide a safe environment for M.V.G. However, she

did not perform any of the services ordered by the court and of particular concern

refused to submit to a drug test. In addition, she never allowed Ames to have a follow-

up visit inside her home to confirm her progress, though Ames attempted to do so at

least three times. Although Patricia testified that a lack of reliable transportation was

the reason she was unable to perform the services, Ames and Johnson testified that she

gave other excuses to them including issues with paperwork, language barriers, and not


In re M.V.G.                                                                           Page 13
wanting to use her cell phone minutes waiting on hold when trying to make

appointments with providers.              Here again the record contains conflicting evidence

regarding these factors.

        Summary: To the extent there is conflicting evidence in the record regarding the

best-interest factors, it was within the court’s discretion as finder of fact to resolve those

conflicts against Patricia. See In re A.M.C., 2 S.W.3d 707, 717 (Tex. App.—Waco 1999, no

pet.). Considering all the evidence in a neutral light, we hold that the evidence is such

that the court “could reasonably form a firm belief or conviction” that termination of

Patricia’s parental rights would be in M.V.G.’s best interest. Thus, the evidence is

factually sufficient on this element, and because the evidence is factually sufficient, it is

necessarily legally sufficient. See D.S.A., 113 S.W.3d at 573.

        We overrule Patricia’s sole issue.

                                             JOEL’S APPEAL

        Joel contends in five points that: (1) the court erred by denying his request for a

jury trial; (2) the court erred by rendering a default judgment against him; (3) the

evidence is insufficient to support the termination order; (4) this appeal is not frivolous;

and (5) section 263.405 of the Family Code is unconstitutional.

                                    Frivolousness Determination

        Joel’s fourth point challenges the court’s finding that his appeal is frivolous but

provides no argument or authority.4 Nevertheless, he has briefed the four other points


4
         Instead, Joel has briefed this point together with his fifth point challenging the constitutionality of
section 263.405 “[f]or purposes of brevity and convenience.” He states in conclusory fashion, “Appellant
asserts for all of the reasons set forth in this Brief that his appeal is not frivolous.”


In re M.V.G.                                                                                           Page 14
noted on their merits. “[S]ection 263.405(g) clearly limits this Court’s review at this

juncture to the issue of whether [Joel’s] appeal is frivolous.” In re S.T., 242 S.W.3d 923,

926 (Tex. App.—Waco, order) (per curiam), disp. on merits, 263 S.W.3d 394 (Tex. App.—

Waco 2008, pet. denied); see In re K.D., 202 S.W.3d 860, 865 (Tex. App.—Fort Worth

2006, no pet.); TEX. FAM. CODE ANN. § 263.405(g) (Vernon 2008). Therefore, we construe

Joel’s appellate points as challenging the trial court’s determination that the issues

discussed are frivolous. See, e.g., In re M.L.J., No. 02-07-00178-CV, 2008 WL 1932076, at

*3 (Tex. App.—Fort Worth May 1, 2008, pet. denied) (mem. op.).

        We review the court’s decision under an abuse-of-discretion standard. S.T., 263

S.W.3d at 398; K.D., 202 S.W.3d at 866.             “An appeal is frivolous when it lacks an

arguable basis in law or in fact.” S.T., 263 S.W.3d at 398 (quoting In re M.N.V., 216

S.W.3d 833, 834 (Tex. App.—San Antonio 2006, no pet.); accord K.D., 202 S.W.3d at 866.

For the reasons which follow, we conclude that Joel’s appeal is not frivolous and the

trial court abused its discretion by concluding otherwise. See In re A.S., 241 S.W.3d 661,

666 (Tex. App.—Texarkana 2007, no pet.) (appeal not frivolous where trial court

improperly denied jury request).

                                        Right to Jury Trial

        Joel contends in his first point that the court abused its discretion by denying his

request for a jury trial.5




5
        Joel refers in his brief to Patricia’s jury demand, but the clerk’s record indicates that Joel’s
attorney filed a written jury demand on his behalf.



In re M.V.G.                                                                                    Page 15
       Joel filed a jury demand and tendered the requisite fee. See TEX. R. CIV. P. 216.

When Joel failed to personally appear for trial, the court advised his counsel that Joel

had waived his right to a jury under Rule of Civil Procedure 220. Id. 220.

       Rule 220 provides in pertinent part, “Failure of a party to appear for trial shall be

deemed a waiver by him of the right to trial by jury.” Id. “[F]or purposes of Rule 220, a

party, although not personally present, appears for trial when his attorney is present.”

In re W.B.W., 2 S.W.3d 421, 422 (Tex. App.—San Antonio 1999, no pet.) (quoting

Rainwater v. Haddox, 544 S.W.2d 729, 732 (Tex. Civ. App.—Amarillo 1976, no writ)).

Thus, the court abused its discretion by removing Joel’s case from the jury docket. Id.

Such error requires reversal “when the case contains material fact questions.” Mercedes-

Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex. 1996); accord Hollywood Park Humane

Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 139 (Tex. App.—San Antonio 2008, no

pet.); A.S., 241 S.W.3d at 666.

       CPS alleged and the trial court found three predicate grounds for termination,

namely, that Joel: (1) knowingly placed or allowed M.V.G. to remain in dangerous

conditions or surroundings; (2) engaged in conduct or knowingly placed M.V.G. with

persons who engaged in conduct which endangered her; and (3) failed to comply with a

court order that established the actions necessary for the return of M.V.G. See TEX. FAM.

CODE ANN. § 161.001(1)(D), (E), (O).

       As noted, Joel’s third point challenges the sufficiency of the evidence to support

the termination order. He does not, however, clearly specify which of the predicate

grounds for termination he is challenging. Instead, he challenges the findings that: (1)


In re M.V.G.                                                                         Page 16
he “engaged in any act to endanger or abandon the child or leave her at places or with

persons that would either”; (2) “engaged in any of the acts found by the trial court”; or

(3) actively or constructively abandoned the child. Because Joel’s third point challenges

the court’s findings regarding his conduct, we construe it as challenging the second and

third predicate grounds for termination (abuse and failure to comply with court order)

but not the first (neglect).

        A finding under (D) that a parent has knowingly placed or allowed a child to

remain in dangerous conditions or surroundings is based on the child’s “conditions and

surroundings” rather than the parent’s conduct. S.N., 272 S.W.3d at 61; see In re S.K.,

198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied); In re D.J.J., 178 S.W.3d 424,

429 (Tex. App.—Fort Worth 2005, no pet.). Because Joel does not challenge this finding

on appeal, he cannot (and does not)6 contend that a material fact question exists on this

predicate ground for termination. Thus, he cannot show that the error in denying his

jury request requires reversal. See Hollywood Park Humane Soc’y, 261 S.W.3d at 139.

        We overrule Joel’s first point.

                                         Default Judgment

        Joel contends in his second point that the court abused its discretion by

rendering a post-answer default judgment against him.

        There is no default when a party fails to appear for trial but counsel appears on

the party’s behalf. LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (per curiam); In re


6
       In fact, Joel does not even attempt to explain in his brief how he was harmed by the court’s
erroneous denial of his request for a jury trial other than to say he was “adversely affected” because the
judgment “was rendered herein by the Judge.”


In re M.V.G.                                                                                      Page 17
K.C., 88 S.W.3d 277, 279 (Tex. App.—San Antonio 2002, pet. denied). Thus the court

abused its discretion by rendering a default judgment against Joel.

          Joel contends that he was harmed because the court refused to permit his counsel

to call witnesses, present evidence, or present argument on Joel’s behalf.             At the

beginning of trial, Joel’s counsel asked whether he would be permitted to cross-examine

witnesses or call witnesses in view of the court’s oral rendition of a default judgment.

The trial court advised counsel that he could cross-examine witnesses and, if he desired

to call a witness, the court would examine the matter at that point to determine whether

he would be permitted to do so. The court also permitted counsel to make an opening

statement on Joel’s behalf.

          Joel’s counsel actively participated in virtually the entire trial, making objections

which the court ruled on, cross-examining witnesses, and offering exhibits which were

admitted in evidence. Counsel never attempted to call a witness on Joel’s behalf. At the

conclusion of trial, the court overruled Joel’s motion for directed verdict. The court

confirmed its prior ruling that counsel was not permitted to offer evidence or call

witnesses, yet counsel had in fact offered evidence which was admitted and counsel

never attempted to call a witness to testify and never identified any witnesses whom

counsel wanted to call. Counsel was not permitted to make a final argument on Joel’s

behalf.

          To the extent counsel was not permitted to present witnesses on Joel’s behalf, he

did not identify a single witness to the trial court (either during the trial or the hearing

on his motion for new trial) whom he wished to call nor the substance of such witness’s


In re M.V.G.                                                                            Page 18
testimony. Neither has he done so in his appellate brief. Thus, it cannot be said that he

was harmed by the trial court’s erroneous rendering of a default judgment. See Hughes

v. Grogan-Lamm Lumber Co., 331 S.W.2d 799, 803 (Tex. Civ. App.—Dallas 1960, writ ref’d

n.r.e.) (“no showing was made on the motion for new trial that McCollough would

probably be present at another trial, or what his testimony would be, nor how or in

what manner it would probably cause the rendition of a different verdict”); Clark v.

Brown, 234 S.W.2d 1013, 1014 (Tex. Civ. App.—San Antonio 1950, no writ); cf. Harrison

v. State, 187 S.W.3d 429, 435 (Tex. Crim. App. 2005) (“If an appellant seeks a new trial

based on the denial of a motion for continuance for an absent witness, he must file a

sworn motion for new trial, stating the testimony that the missing witness would have

provided.”).

       We overrule Joel’s second point.

                              Sufficiency of the Evidence

       Joel challenges the legal and factual sufficiency of the evidence to support the

termination order in his third point. However, he does not challenge the sufficiency of

the evidence to support the affirmative finding on the predicate ground for termination

under (D) that a parent has knowingly placed or allowed a child to remain in dangerous

conditions or surroundings. Nor does he challenge the sufficiency of the evidence to

support the best interest finding. See S.N., 272 S.W.3d at 49 (“to mount a successful

challenge on appeal based on evidentiary insufficiency, a party must challenge each

affirmative finding of a predicate ground for termination or at minimum challenge the

best interest finding”).


In re M.V.G.                                                                      Page 19
       We overrule Joel’s third point.

                           Constitutionality of Section 263.405

       Joel contends in his fifth point that section 263.405 of the Family Code is

unconstitutional because it: (1) interferes with the jurisdiction of the appellate court; (2)

“attempts to deny the right to counsel to an appealing litigant”; (3) “interferes with the

due process and orderly jurisprudence in this Court and its jurisdiction over an appeal”;

and (4) “further attempts to limit the jurisdiction of this Court by requiring a statement

of points for appeal and limits the manner and type of claims that can be preserved in a

motion for new trial.”

       We construe Joel’s complaint to present in essence two constitutional claims: (1)

section 263.405 unconstitutionally limits the appellate issues which may be considered;

and (2) section 263.405 unconstitutionally permits a trial court to deny the right to

counsel to an indigent appellant.

       With regard to his first complaint, he has not identified any issue which he has

been prevented by the statute from presenting to this Court for review. See M.C., 300

S.W.3d at 314; In re S.N., 292 S.W.3d 807, 811-12 (Tex. App.—Eastland 2009, no pet.); In

re E.A.W.S., No. 02-06-00031-CV, 2006 WL 3525367, at *18 (Tex. App.—Fort Worth Dec.

7, 2006, pet. denied) (mem. op.).

       With regard to the second complaint, the trial court advised counsel at the new

trial hearing that the court would not pay for appointed counsel to represent Joel on

appeal after finding that the appeal was frivolous and noting that Joel had failed to

appear for trial and had not recently communicated with counsel. Nevertheless, this


In re M.V.G.                                                                          Page 20
Court by order dated April 10, 2009 advised the parties that “an indigent person has a

statutory right to appointed counsel to represent him in an appeal challenging a court’s

determination under section 263.405(d) that his appeal is frivolous.” In re M.V.G., 285

S.W.3d 573, 576 n.2 (Tex. App.—Waco 2009, order) (quoting In re S.T., 239 S.W.3d 452,

457 (Tex. App.—Waco 2007, order) (per curiam), disp. on merits, 263 S.W.3d 394 (Tex.

App.—Waco 2008, pet. denied)). Joel’s counsel has actively represented him on appeal.

       Joel’s fifth point is overruled.

       The termination order with regard to both Patricia and Joel is affirmed.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 3, 2010
[CV06]




In re M.V.G.                                                                      Page 21
