                                    NO. 07-05-0424-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL E

                                       JUNE 9, 2006

                          ______________________________

                   IN THE INTEREST OF R.M. AND J.M., CHILDREN,
                        _________________________________

             FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2005-531,942; HONORABLE KEVIN HART, JUDGE
                       _______________________________


Before QUINN, C.J., and HANCOCK, J., and BOYD, S.J.1


                                MEMORANDUM OPINION


       Appellant, Virginia Marlene Castle, appeals from an order terminating her parental

rights to her children. We affirm the trial court.


                           Factual and Procedural Background


       Appellee, the Texas Department of Protective and Regulatory Services

(Department), first had contact with Virginia Marlene Castle in 2001, when the Department

filed an original suit affecting the parent-child relationship in the District Court of Hockley



       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
County. In the ensuing years, Castle’s children, R.M. and J.M., were in and out of the

temporary care of the Department. On August 24, 2005, the Department filed an Original

Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting

the Parent-Child Relationship in the 237th District Court of Lubbock County. On the same

day, the trial court removed the children from Castle’s care by order of protection. At the

adversarial hearing on the order of protection, the Department was once again appointed

temporary managing conservator. A jury trial was scheduled for October 24, 2005. On the

morning of the jury trial, Castle executed an affidavit of voluntary relinquishment of her

parental rights. The order terminating the parental rights of Castle was entered that day.

Two days later, Castle filed a motion for new trial alleging her affidavit was executed under

duress. On November 21, 2005, the trial court entered an order denying the motion for

new trial and deeming Castle’s appeal frivolous. It is from this ruling that Castle appeals.


       By four issues, Castle contends that the trial court committed reversible error. First,

Castle contends that the trial court erred in denying her motion for new trial and finding that

her appeal was frivolous. Second, Castle contends that the trial court erred in denying her

motion to dismiss. Third, Castle contends that her substantive due process rights were

violated by the Department. Finally, Castle contends that the affidavit of relinquishment

was not executed voluntarily.


                                      Frivolous Appeal


       In her first issue, Castle argues that the trial court erred in denying her motion for

new trial and in determining that her appeal was frivolous. The trial court conducted a


                                              2
hearing pursuant to Texas Family Code § 263.405 and deemed that Castle’s appeal was

frivolous, as provided by Texas Civil Practice and Remedies Code § 13.003(b). TEX . FAM .

CODE ANN . § 263.405 (Vernon 2005)2 and TEX . CIV. PRAC . & REM . CODE ANN . § 13.003(b)

(Vernon 2005). An appellate court reviews a trial court’s finding that an appeal is frivolous

under an abuse of discretion standard.      De La Vega v. Taco Cabana, Inc., 974 S.W.2d

152, 154 (Tex.App.–San Antonio 1998, no pet.). Likewise, the decision whether to grant

a motion for new trial is reviewed for an abuse of discretion. See Simon v. York Crane &

Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Strackbein v. Prewitt, 671 S.W.2d 37,

38 (Tex.1984). A contention on appeal “is frivolous when it lacks an arguable basis either

in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d

338 (1989); De La Vega, 974 S.W.2d at 154. Accordingly, a frivolous appellate contention

will not support the granting of a new trial.


       Castle’s sole contention in her motion for new trial was that she signed the voluntary

relinquishment under duress. By extrapolation, we take that to mean that Castle did not

voluntarily sign the relinquishment, rather her signature was obtained by some external

force that overcame her individual will. See generally Tower Contracting Co. v. Burden

Bros, Inc., 482 S.W.2d 330, 335 (Tex.Civ.App.–Dallas 1972, writ ref’d n.r.e.)(discussing

what constitutes duress). Castle testified that, while she was waiting in a witness room near

the courtroom where her jury trial was scheduled, she overheard her attorneys talking to

the attorney representing the Department. Castle testified that she heard the Department’s

attorney say that “I either sign the papers or they’re going to send me to jail.” Castle further


       2
           Future citations to the Texas Family Code will be by “Family Code § ___.”

                                                3
testified that, prior to hearing that statement, she had never considered signing an affidavit

of relinquishment. The Department’s attorney testified about the circumstances that led

to his conversation with Castle’s attorneys outside the witness room. He testified that there

was testimony at the adversarial hearing which he felt obligated to pass along to the

criminal division of the Criminal District Attorney’s office. The discussion that he had with

Castle’s attorneys was to advise them that he had done so. He denied ever having

threatened Castle, directly or indirectly, to gain her signature on the affidavit of

relinquishment. At the conclusion of the hearing, the trial court found that there was no

evidence that anyone had exerted any undue influence over Castle.


       The trial court was the fact finder regarding the circumstances surrounding Castle’s

decision to sign the relinquishment. The fact finder is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638,

358 S.W.2d 547, 549 (1962). The fact finder may believe one witness and disbelieve

another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The fact finder

resolves inconsistencies in testimony. Id. Where enough evidence is before the fact finder

that reasonable minds could differ on the meaning of the evidence, or the inferences and

conclusions to be drawn from the evidence, we may not substitute our judgment for that

of the fact finder. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).


       Based on the record before this court, we cannot say that the trial court abused its

discretion in denying Castle’s motion for new trial3 or finding that Castle’s appeal was


       3
        The trial court further found that Castle had produced no evidence at the motion
for new trial hearing that was newly discovered and on that basis alone relief should be
denied.

                                               4
frivolous. Simon, 739 S.W.2d at 795 (Tex. 1987); De La Vega, 974 S.W.2d at 154.

       Accordingly, Castle’s first issue is overruled.


                                      Motion to Dismiss


       By her second issue, Castle contends that the Department’s filing of the August 24,

2005 petition to terminate her parental rights, after having previously non-suited a

termination action filed in 2004, violated the legislative intent of the 2005 amendment of

Family Code § 263.401 and, therefore, the case must be dismissed.4 Under Castle’s

theory, the trial court committed reversible error when it denied her motion to dismiss.


       In essence, Castle contends that, because the dismissal of the prior suit was

mandated by Family Code § 263.401, the trial court had no jurisdiction to hear the 2005

suit. A challenge to the jurisdiction, based upon the pleadings, is reviewed de novo. State

Dep’t of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2001).

When considering a jurisdictional claim, the court may only consider the plaintiff’s

pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002). When considering a trial court’s order on a plea

to the jurisdiction, we construe the pleadings in the plaintiff’s favor and look to the pleader’s

intent. Id.




       4
        The legislature amended Family Code § 263.401 to limit the 180 day extension of
the dismissal deadline for a suit affecting the parent-child relationship when the child is
under the temporary conservatorship of the Department to cases in which the trial court
finds “extraordinary circumstances” necessitating that the child remain in the temporary
conservatorship of the Department. Amended by Acts 2005, 79th Leg., R.S., ch. 268, §
1.40, 2005 Tex. Gen. Laws 636.

                                               5
       Castle posits that the 2005 amendment to Family Code § 263.401 dictates that the

Department may not non-suit its 2004 petition and, subsequently, file a new petition

seeking temporary managing convservatorship and termination of her parental rights. She

contends that the new amendment was intended to overrule this court’s opinion in In re

L.J.S.. See In re L.J.S., 96 S.W.3d 692 (Tex.App.–Amarillo 2003, no pet.). Castle makes

a blanket assertion that to allow repeated filings to convenience the Department flies in the

face of the legislature and renders Family Code § 263.401 meaningless.


       However, the plain language of Family Code § 263.401, as amended, has no effect

on the Department’s right to re-file suit after non-suit. Further, our opinion in In re L.J.S.

noted that, under the pre-amendment version of Family Code § 263.401, authority existed

to allow the Department to reinitiate previously filed proceedings so long as new facts were

alleged justifying the relief requested, even if the relief requested was the same in both

suits. In re L.J.S., 96 S.W.3d at 694.5 We must presume that, since the 2005 amendment

did not specifically address the Department’s right to re-file suit after non-suit, the

legislature did not intend to change the existing law articulated in In re L.J.S. See Acer v.

Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is presumed to have

been enacted by the legislature with complete knowledge of the existing law and with

reference to it.”). As such, we conclude that the Department may reinitiate a previously




       5
         Further, had the legislature intended to prohibit or limit the Department’s refiling
of a case after non-suit or even involuntary dismissal, it could have done so. See In re
L.J.S., 96 S.W.3d at 695-96 (Johnson, C.J., concurring).

                                              6
dismissed suit affecting the parent-child relationship provided that the new suit alleges new

facts justifying the relief requested.


       Castle asserts that the Department failed to identify new facts to support its re-filed

August 24, 2005 suit and, as such, this suit was simply a continuation of the 2004 suit.

However, Castle has neither presented argument nor authority in support of her assertion.

The Department contends that its August 24, 2005 petition alleged new facts to support

suit. Castle presents no argument that these allegations were not truly new or that they

were insufficient to independently warrant the relief requested by the Department.

Therefore, we conclude that the Department’s pleadings and that portion of the record

necessary to determine the jurisdiction of the court support the trial court’s exercise of its

jurisdiction. County of Cameron, 80 S.W.3d at 555. Therefore, Castle’s second issue is

overruled.


                                         Due Process


       By her third issue, Castle contends that her substantive due process rights were

violated when the Department non-suited the 2004 petition and re-filed a petition to

terminate her parental rights. To support this position, Castle cites the court to the clerk’s

record. A review of that record reveals that the numerous citations to the continuing

scheme of the Department are citations to Castle’s motion to dismiss. Nowhere in the

record are the historical documents necessary to prove the allegation, such as previous

petitions.




                                              7
         The Department posits that Castle’s contention should not be considered because

she has failed to preserve the record. However, this position is without any reference to

how or under what statute Castle failed to preserve the appellate point. The Department

contends that Family Code § 263.4056 required Castle to file a statement of points to

preserve an issue for appeal. While the cited section speaks in terms of preservation, the

balance of case law has held filing a statement of points is neither jurisdictional nor an

additional requirement to preserve error.         See In re S.P., 168 S.W.3d 197, 201

(Tex.App.–Dallas 2005, no pet. h.); In re W.J.H., 111 S.W.3d 707, 712 (Tex.App.–Fort

Worth 2003, pet. denied).


         Whereas Castle’s failure to include this issue in a timely filed statement of points

does not preclude this court from entertaining the contentions of Castle regarding due

process, both the United States and Texas Supreme Courts have consistently held that

even a claim of constitutional error may be waived by a party’s failure to preserve the issue.

Webb v. Webb, 451 U.S. 493, 495, 101 S.Ct. 1889, 68 L.Ed.2d 392 (1981); In re L.M.I.,

119 S.W.3d 707, 710-11 (Tex. 2003) (referencing Texas Rule of Appellate Procedure

33.1).


         Within this framework, a review of the record reveals that Castle never alleged,

either in the motion to dismiss, the motion for new trial or during the actual trial, that the

actions of the Department violated her substantive due process rights under either the

United States or Texas constitutions. Castle’s failure to advise the trial court of the


         6
        Family Code § 263.405(b) imposes the requirement that a party intending to
appeal file a statement of points within 15 days of the signing of the final order being
appealed.

                                              8
perceived error is fatal to her claim. Id. For these reasons, Castle’s third issue is

overruled.


                               Affidavit of Relinquishment


       Castle’s fourth issue contends that the trial court erred when it found that the

affidavit of relinquishment was executed voluntarily. Having determined, in connection with

Castle’s first issue, that the affidavit was not executed as a result of duress, we overrule

Castle’s fourth issue.


                                        Conclusion


       Inasmuch as all of Castle’s issues are overruled, we affirm the judgment of the trial

court terminating Castle’s parental rights to R.M. and J.M.




                                          Mackey K. Hancock
                                              Justice




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