












 
 
 
 
 
 
                                COURT OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-06-043-CV
 
 
IN THE INTEREST OF D.A.R.                                                                  
 
                                              ------------
 
            FROM THE 362ND
DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
OPINION
 
                                              ------------
 
Appellant K.E.M., biological mother of D.A.R.,
timely filed a notice of appeal in this case on February 6, 2006, contesting
the trial court=s order terminating her parental
rights.  In two points, Appellant
contends that the trial court erred by delaying the appointment of appellate
counsel and that her trial counsel committed ineffective assistance. Appellant
does not challenge the constitutionality of section 263.405(i) of the Texas
Family Code.










Appellant=s two
points on appeal do not appear in her statement of points or motion for new
trial.  Historically, this court has held
that the absence of a point from a statement of points, and, indeed, the
absence of a statement of points, does not deprive us of the ability to review
an issue on appeal in a termination case.[1]  In response to this line of cases and similar
cases from other intermediate appellate courts, the legislature enacted section
263.405(i).[2]        In the appeal of a final order in a
termination case filed by the Texas Department of Family and Protective
Services, section 263.405(i) bars this court from considering any issues not Aspecifically
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.@[3]  Section 263.405(i) is effective for cases,
like this one, appealed on or after September 1, 2005.[4]          We
note that the legislature has also mandated that indigent parents in these
termination cases receive appointed counsel.[5]  The Supreme Court of Texas has held that this
Astatutory
right to counsel in parental‑rights termination cases embodies the right
to effective counsel,@[6] and
this court has specifically held that Athe
statutory right to appointed counsel afforded to indigent parents in
termination proceedings embodies a due process right that counsel render
effective assistance.@[7]  The Supreme Court of Texas has also provided
that Abecause
Texas provides the right of an appeal from a judgment on parental‑rights
termination, part of the process of ensuring the accuracy of judgments
necessarily involves appellate review.@[8]  Finally, we note that, unlike their
counterparts in criminal cases, for whom the legislature has specifically
provided an avenue of adequate relief through a writ of habeas corpus if trial
counsel was ineffective but did not preserve the issue for appeal,[9]
parents in these cases who allege ineffective assistance of counsel apparently
have no recourse other than direct appeal by which to overturn the trial court=s
judgment severing forever the ties with their children.[10]
Nevertheless, while we join Justice Vance of our
sister court in Waco in questioning the practical applications and
constitutional validity of this statute,[11]
we are barred by the legislature from considering Appellant=s points
on appeal because they do not appear in Appellant=s
statement of points or motion for new trial.[12]  Consequently, we affirm the trial court=s order
terminating Appellant=s parental rights.
 




 
 
 
 
 
LEE
ANN DAUPHINOT
JUSTICE
 
PANEL F:    CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
CAYCE, C.J. concurs without opinion.
DELIVERED:  August 10, 2006




[1]See In re D.S.,
176 S.W.3d 873, 876-77 (Tex. App.CFort Worth 2005, no pet.) (holding absence of
statement of points does not preclude our consideration of appellate issues in
termination appeals filed before September 1, 2005); In re B.T., 154
S.W.3d 200, 205 (Tex. App.CFort Worth 2004, no pet.) (providing appellants did
not waive claims raising ineffective assistance of counsel by not including
them in statement of points); In re S.J.G., 124 S.W.3d 237, 243 (Tex.
App.CFort Worth 2003, pet. denied) (holding failure to file
statement of points is no bar to appeal); In re W.J.H., 111 S.W.3d 707,
712 (Tex. App.CFort Worth 2003, pet. denied) (holding failure to
raise issue in statement of points does not forfeit it on appeal); In re
D.R.L.M., 84 S.W.3d 281, 291 (Tex. App.CFort Worth 2002, pet. denied) (holding failure to
timely file statement of points does not forfeit issues on appeal).


[2]See In re
E.A.R., No. 10-06-00037CV, 2006 WL 1642105, at *2 & n.2 (Tex. App.CWaco
June 16, 2006, no pet. h.) (Vance, J., concurring) (referring to and quoting
the House Comm. On Juvenile Justice and
Family Issues, Bill Analysis,
Tex. H.B. 409, 79th Leg., R.S. (2005)).


[3]Tex. Fam. Code Ann. ' 263.405(i) (Vernon Supp. 2005).


[4]D.S., 176
S.W.3d at 876 (examining the enacting legislation of section 263.405(i)).


[5]Tex. Fam. Code Ann. ' 107.013 (Vernon Supp. 2005).


[6]In re M.S., 115 S.W.3d 534, 544
(Tex. 2003).


[7]In re K.L.,
91 S.W.3d 1, 13 (Tex. App.CFort Worth 2002, no pet.).


[8]M.S., 115
S.W.3d at 546 (footnote omitted).


[9]See Tex. Code Crim. Proc. Ann. arts. 11.07,
11.071 (Vernon 2005); see also Ex parte Torres, 943 S.W.2d 469, 475
(Tex. Crim. App. 1997) (holding that rejection of ineffective assistance claim
on direct appeal does not bar relitigation of it on habeas corpus to the extent
that applicant seeks to gather and introduce additional evidence).


[10]See Tex. Fam. Code Ann. ' 161.211
(Vernon 2002) (barring collateral attacks of termination orders after the
expiration of six months); King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 752 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004)
(summarizing the requirements for a bill of review and specifically providing
that Aallegations of fraud or negligence on the part of a
party's attorney are insufficient to support a bill of review@).


[11]See E.A.R.,
No. 10-06-00037CV, 2006 WL 1642105, at *3-4 & n.7 (Vance, J., concurring).


[12]See Tex. Fam. Code Ann. '
263.405(i).


