                                           NO. 07-09-0137-CV

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL A

                                          NOVEMBER 9, 2009

                                ______________________________


            IN THE INTEREST OF M.G., D.G., S.G., E.G., AND R.M., CHILDREN

                             _________________________________

               FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 2008-542,603; HONORABLE KEVIN C. HART, ASSOCIATE JUDGE

                               _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       MEMORANDUM OPINION


        Appellant, Harold Gladden, III, challenges an associate judge’s March 30, 2009,

order terminating his parental rights to his children1 and appointing Appellee, the

Department of Family and Protective Services (the “Department”), as permanent sole




        1
          Although there are five children the subject of this proceeding, Appellant seeks to appeal that portion
of the order pertaining to the term ination of his parental rights to M.G., D.G., S.G., and E.G. only. Appellant
is not R.M.’s biological father. As to R.M., the rights of the unknown father were term inated and, as to all
children, the m other’s rights were also term inated. Neither the unknown father nor the m other appeal from
the associate judge’s term ination order.
managing conservator.2 By a sole issue, Appellant contends the evidence is legally and

factually insufficient to support the trial court’s finding that termination of his parental rights

to his four children was in their best interest. The Department contends that this Court is

precluded from considering Appellant’s issue because he failed to comply with the

requirements of Family Code section 263.405.3 Agreeing with the Department, we affirm.


                                           Statement of Points


        Section 263.405 of the Texas Family Code4 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 who intends to request a new trial or appeal the order must file
        with the trial court:
                                                      ***
                 (2) if an appeal is sought, a statement of the point or points on
                 which the party intends to appeal.
        (b-1) The statement under Subsection (b)(2) may be combined with a
              motion for new trial.
                                                      ***


        2
          W here a request for a de novo hearing before the referring court is not tim ely filed, the judgm ent of
the associate judge becom es the judgm ent of the referring court by operation of law without ratification by the
referring court. See Tex. Fam . Code Ann. § 201.2041(a) (Vernon 2008).

        3
         Tex. Fam . Code Ann. § 263.405 (Vernon 2008). Unless otherwise indicated, this and all future
section references refer to the Texas Fam ily Code.

        4
         Recently, som e of the requirem ents of section 263.405(b) and (i) of the Texas Fam ily Code have
been the center of controversy. See In re J.O.A., 283 S.W .3d 336 (Tex. 2009); In re M.N., 262 S.W .3d 799
(Tex. 2008). See also In re S.N., __ S.W .3d __, No. 11-08-002930CV, 2009 W L 2209863, at * 3-5
(Tex.App.–Eastland July 23, 2009, no pet.) (not yet released for publication); In re S.N., 287 S.W .3d 183
(Tex.App.–Houston [14th Dist.] 2009, no pet.); In re D.W ., 249 S.W .3d 625 (Tex.App.–Fort W orth), pet.
denied, 260 S.W .3d 462 (Tex. 2008); In re A.F., 259 S.W .3d 303 (Tex.App.–Beaum ont 2008, no pet.); In re
M.C.T., 250 S.W .3d 161 (Tex.App.–Fort W orth 2008, no pet.).

                                                        2
       (i) The appellate court may not consider any issue that was not specifically
       presented to the trial court in a timely filed statement of 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.


       The trial court’s termination order, signed on March 30, 2009, found that Appellant

had (1) knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endanger their physical or emotional well-being,5 (2) engaged in

conduct or knowingly placed the children with persons who engaged in conduct which

endangered the physical or emotional well-being of the children,6 and (3) knowingly

engaged in criminal conduct that has resulted in the father’s conviction of an offense and

confinement or imprisonment and inability to care for the children for not less than two

years from the date of filing the petition.7 The order of termination also found that

termination of the parent-child relationship was in the children’s best interest. The following

day, without filing a motion for new trial, Appellant filed a pro se notice of appeal in which

he “disagree[d] with statement of points” and set forth the following claims:


       [Appellant] was incarcerated during the pendency of this suit and followed all
       the requests in his “service plan.”
       Evidence established that [Appellant] is eligible for parole and this is not a
       Section 42.12(3)(g) offense.


       5
           See Tex. Fam . Code Ann. §161.001(1)(D) (Vernon 2008).

       6
           See Tex. Fam . Code Ann. §161.001(1)(E) (Vernon 2008).

       7
           See Tex. Fam . Code Ann. §161.001(1)(Q) (Vernon 2008).

                                                   3
       [Termination] goes against the testimony adduced in that [Appellant] has
       participated in prison activities equivalent to the “service plan” and parental
       duties.
       Texas Government Code § 508.145(f) indicated that inmate is eligible for
       release when actual calendar time plus good time equals one-fourth of the
       sentence. [Appellant] was incarcerated on May 27, 2007, and was before
       the parole board in June, 2008.


               Statement of Points Contained Within Notice of Appeal


       The Department argues that section 263.405 is clear and unambiguous and does

not provide for the filing of a statement of points in combination with a notice of appeal.

Elaborating on that argument, it disagrees with this Court’s opinion considering points

raised in a notice of appeal in In re S.B.R., No. 07-08-00421-CV, 2009 WL 1677836, at *5

n.7 (Tex.App–Amarillo 2009, no pet.).


       We conclude that it is unnecessary for us to determine whether the filing of a

statement of points in combination with a notice of appeal, under the facts of this case,

complies with the requirements of section 263.405. This is so for two reasons: (1) the trial

court construed Appellant’s notice of appeal as a motion for new trial and a statement of

points may be combined with a motion for new trial; and (2) resolution of that issue is not

necessary to our disposition of Appellant’s appeal.


       One of the purposes of requiring points for appeal is to promptly bring reversible

error to the trial court’s attention. In re A.F., 259 S.W.3d 303, 306 (Tex.App.–Beaumont

2008, no pet.). The goal of section 263.405 is to decrease post-judgment delays when


                                             4
children are under the Department’s care. In re M.N., 262 S.W.3d 799, 803 (Tex. 2008).

However, the Legislature intended section 263.405(b) and (i) to yield just, fair, and

reasonable results within the legislative goal of obtaining expedited disposition of appeals.

Id.


         Notwithstanding that Appellant included his points for appeal in his notice of appeal,

the record reflects that the points were “presented” to the trial court for consideration.8 The

trial court held a hearing and signed an order entitled “Corrected Order on Motion for New

Trial and Notice of Appeal,” which recites in part “The Motion for New Trial of this cause

filed by Respondent [Appellant] is hereby DENIED.” Thus, the trial court construed

Appellant’s notice of appeal combined with a statement of points as a motion for new trial.

Under the facts presented in this particular case, we conclude the intent of section 263.405

to expeditiously resolve termination cases was not thwarted by the trial court’s

consideration of Appellant’s statement of points.


         However, even if we were to construe the statements contained within Appellant’s

notice of appeal as a statement of points for purposes of section 263.405, nothing

contained within that document can be construed as contesting the legal or factual

sufficiency of the evidence to support the decision that termination was in the children’s




         8
             Section 263.405(i) provides that issues in a statem ent of points be specifically “presented” to the trial
court.

                                                            5
best interest.9 Inasmuch as the issue being raised by Appellant on appeal was not

presented to the trial court, nothing has been preserved for appeal. See Tex. Fam. Code

Ann. § 263.405(i); In re R.C., 243 S.W.3d 674, 676 (Tex.App.–Amarillo 2007, no pet.).


        Consequently, Appellant’s issue is overruled and the trial court’s order terminating

his parental rights is affirmed.




                                                             Patrick A. Pirtle
                                                                 Justice


Campbell, J., concurring.




        9
          Given the constitutional dim ension of parental rights, Holick v. Smith, 685 S.W .2d 18, 20 (Tex. 1985),
an appellate court should construe pleadings in a generous m anner and with less stringent standards than
form al pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972).

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