

NO. 12-10-00024-CV
 
IN THE COURT OF APPEALS          
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN THE MATTER OF                                    
§                   APPEAL FROM THE 
            
E.G.S.,                                                                          
§                   COUNTY COURT AT LAW            
            
A CHILD                                                          
§                   ANDERSON COUNTY, TEXAS     



MEMORANDUM
OPINION
            V.S.
appeals the trial court’s final order in a termination proceeding brought by
the Texas Department of Family and Protective Services (DFPS).  In his sole
issue, he complains the trial court erroneously denied his motion for
mistrial.  We affirm.
 
Background
            E.G.S.
was born on August 9, 2006.  On August 22, 2006, DFPS filed its petition for
protection of E.G.S., for conservatorship, and for termination of the parental
rights of E.G.S.’s parents.  E.G.S. was placed in foster care where she remained
until December 19, 2008.  She stayed with her father, V.S., from that date
until January 23, 2009, when she was removed from his home by DFPS.  E.G.S.’s
mother, J.W., voluntarily relinquished her parental rights in September 2009. 
The issue of V.S.’s parental rights was tried before a jury, which found that
his rights should be terminated.  Appellate counsel was appointed the day after
the trial.  The trial court signed the final order of termination a month later,
and V.S., through appellate counsel, timely filed a motion for new trial and
statement of points on appeal.  The trial court denied the motion, but found
that the appeal is not frivolous.
 
Appellate Review of Termination Orders
            In
his sole issue, V.S. contends the trial court abused its discretion in
overruling his objection and motion for new trial on the ground that DFPS and
the attorney ad litem improperly aligned themselves against him.  He asserts
that they coordinated their peremptory challenges to venire members to avoid
double strikes, effectively giving them twice as many strikes as he had, and
resulting in a materially unfair trial.  
Applicable
Law
            Section
263.405 of the Texas Family Code applies to appeals from final orders rendered
in parental rights termination suits and dictates specific requirements for the
process.  See Tex. Fam. Code Ann.
§ 263.405 (Vernon 2008).  A party intending to appeal a final order terminating
parental rights must file with the trial court, no later than fifteen days
after the final order is signed, a statement of points on which the party
intends to appeal.  Id. § 263.405(b).  The statement may be filed
separately or may be combined with a motion for new trial.  Id.
§ 263.405(b-1).  The statute specifically provides that an appellate court
may not consider any issue that was not specifically presented to the trial
court in a timely filed statement of points.  Id. § 263.405(i); In
re B.G., 317 S.W.3d 250, 252 (Tex. 2010).  Exceptions to this rule have
been made only for claims of ineffective assistance of counsel and certain
constitutional complaints.  See In re J.O.A., 283 S.W.3d 336, 339
(Tex. 2009); In re D.W., 249 S.W.3d 625, 632 (Tex. App.–Fort
Worth 2008, pet. denied).
Analysis
            After
voir dire, challenges for cause were made, the jury was sworn in, and the trial
court gave instructions before recessing.  During the recess, V.S. brought it
to the court’s attention that DFPS and the attorney ad litem apparently
collaborated, selecting strikes together.  He asserted that their collaboration
had put him at a disadvantage and moved for a mistrial.  The court verified
that there was collaboration, but denied V.S.’s motion.  After the lunch
recess, V.S. made a second motion for mistrial because he learned that the
guardian ad litem was in the room with DFPS and the attorney ad litem when they
were determining which jurors to strike.  He again argued that it was
disadvantageous to him.  The court overruled the motion.
            V.S.
timely filed a motion for new trial and statement of points on appeal on
January 22, 2010, listing seventeen points.  None of those points complain that
the trial court abused its discretion in overruling his objection to DFPS’s and
the attorney ad litem’s having aligned themselves to coordinate their
peremptory strikes to avoid double strikes, resulting in a materially unfair
trial.  Nor is there a point complaining of the trial court’s denial of V.S.’s
motion for mistrial on that basis.  On the same day he filed his brief in this
court, June 4, 2010, V.S. filed an “Amended Statement of Points on Appeal” in
this court, stating one point:  
 
The Trial Court abused its discretion in overruling
Appellant’s objection, and Motion for New Trial, to the Appellee and the
Attorney Ad Litem aligning themselves against Appellant and coordinating their
peremptory challenges as to avoid double strikes, resulting in a materially
unfair trial.  
 
 
            As
explained above, the family code gives a party fifteen days after the
termination order is signed to file his statement of points and specifies that
it is to be filed in the trial court.  See Tex. Fam. Code Ann. § 263.405(b).  Section 263.405 does
not address whether that deadline can be extended, whether a party’s timely
filed statement of points may be amended later, or whether an amendment can be
filed in the appellate court.  V.S. has provided no explanation for failing to
include this point in his original statement of points on appeal and thus has
not shown good cause for the omission.   See In re M.N., 262
S.W.3d 799, 804 (Tex. 2008) (holding that trial court can grant motion to
enlarge the time for filing a statement of points if good cause is shown for
failing to timely file it).  Further, amendment at the appellate level results
in review of a point not considered by the trial court as contemplated by Section
263.405(d).  See Tex. Fam. Code
Ann. § 263.405(d).  V.S. has not provided us with authority for amending
a statement of points outside the fifteen day time period, in this case four
months later, or for filing an amendment in the court of appeals.  In the
absence of some authority, we cannot say that V.S.’s amendment acts
retroactively to satisfy the requirements of Section 263.405.
Three
months after filing his brief and amended statement of points in this court,
V.S. filed a reply brief arguing that his point fourteen in his original
statement of points on appeal encompasses the issue he raises on appeal,
preserving it for appellate review.  Based on the record of the proceedings in
the trial court, we disagree.
Point
fourteen in V.S.’s original statement of points states:  “The Trial Court
abused its discretion in denying Appellant’s Motion to equalize the number of
peremptory challenges.”    When complaining about DFPS’s collaboration with the
ad litem, V.S. did not move to equalize the number of peremptory challenges,
perhaps because the jury had already been sworn.  Instead, he moved for a
mistrial.  We conclude that V.S.’s point fourteen does not refer to the subject
of his sole issue on appeal and does not preserve error for his current complaint. 
Because V.S. did not include his sole issue on appeal in his timely filed
statement of points as required by the family code, we cannot consider his
issue.  See Tex. Fam. Code Ann.
§ 263.405(i).
Moreover,
assuming preservation of the complaint, and assuming that the trial court
abused its discretion in overruling V.S.’s objection and motion for new trial
on the ground that DFPS and the ad litem improperly coordinated their
peremptory challenges, V.S. would be required to show that he was harmed
thereby.  See In re M.N.G., 147 S.W.3d 521, 533 (Tex. App.–Fort
Worth 2004, pet. denied).  V.S. would be entitled to reversal if he could show
that the trial was materially unfair.  Id.  In doing a harm
analysis, the appellate court examines the entire trial record to determine if
the trial was hotly contested and the evidence sharply conflicting, resulting
in a materially unfair trial.  Id.
A
review of the entire record in this case shows that the evidence presented at
trial was not sharply conflicting.  DFPS witnesses agreed that V.S. attempted
to comply with its requirements from the time he got out of prison in the
spring of 2008 until E.G.S. was placed in his home in December 2008.  However,
it was determined in January 2009 that V.S. was using drugs, leaving E.G.S. in
the care of an individual who had not been approved by DFPS, and not providing
a safe environment for her.  After living with V.S. for thirty-three days,
E.G.S. was removed from his home.
The
evidence shows that V.S. does not have a stable home and, at the time of trial,
was living in a motel known for drug activity and prostitution.  He has neither
transportation nor a steady job, and cannot provide a safe environment for a
child.  Furthermore, he refused drug testing, would not return his case worker’s
phone calls, and would not participate in his service plan with DFPS.  As of
the time of trial, he had not seen E.G.S. for eleven months and had refused to
take the steps necessary to do so.  V.S. admitted that DFPS had not done
anything wrong and that he had.  The evidence does not indicate that V.S.
received an unfair trial.
A
review of voir dire also does not indicate that V.S. was prejudiced by the
selection of any of the jurors on the panel.  None of the jurors selected even
arguably hinted at partiality or bias.  Nothing in the voir dire indicates that
the failure to apportion strikes among the parties resulted in a materially
unfair trial that caused the rendition of an improper judgment.
 
 
Disposition
            We
overrule as moot DFPS’s motion to strike V.S.’s amended statement of points on
appeal.  Because we cannot consider the issue V.S. raises on appeal, we affirm
the trial court’s order of termination.
 
 
                                                                                                Brian Hoyle
                                                                              
    Justice
 
 
 
Opinion delivered December 22, 2010.
Panel
consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(PUBLISH)

