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Opinion filed May 10, 2007
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                 ____________
 
                                                          No. 11-06-00228-CV 
                                                    __________
 
                               IN THE INTEREST OF M.N., A CHILD
 

 
                                         On
Appeal from the 326th District Court
 
                                                          Taylor County,
Texas
 
                                                 Trial
Court Cause No. 5969-CX
 

 
                                                                   O
P I N I O N
 
The trial court terminated Mandi Durham=s parental rights to her daughter,
M.N.  Durham filed this accelerated appeal from the
trial court=s
order.  We affirm.
At the outset, we must determine whether Durham has preserved any
points of error for appeal.  The Texas
Department of Family and Protective Services maintains that she has not because
she failed to timely file a statement of points on appeal.
Tex. Fam.
Code Ann. '
263.405(b) (Vernon Supp. 2006) contains the following provision: 
Not later than the 15th day after the date a final
order is signed by the trial judge, a party intending to appeal the order must
file with the trial court a statement of the point or points on which the party
intends to appeal. The statement may be combined with a motion for new trial.
 




Some intermediate appellate courts had been
holding that noncompliance with Section 263.405(b) did not constitute waiver of
non-jurisdictional issues on appeal.  In
re S.J.G., 124 S.W.3d 237, 240-43 (Tex. App._Fort
Worth 2003, pet. denied); In re D.R.L.M., 84 S.W.3d 281, 290 (Tex. App._Fort
Worth 2002, pet. denied).
In response to those holdings, the legislature
added subsection (i) to Section 263.405. 
Tex. Fam. Code Ann. ' 263.405(I) (Vernon Supp. 2006)
provides:
The appellate court may not consider any issue
that was not specifically 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. 
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.
 
Appellant did not file a separate statement of
points on appeal within fifteen days of the date on which the termination order
was signed.  She filed a motion for new
trial after the fifteen-day period and within thirty days after the termination
order was signed.  Tex. R. Civ. P. 329b(a).  Appellant combined her statement of points on
appeal with the motion for new trial. 
The motion for new trial was filed more than fifteen days after the
order of termination.  Appellant,
therefore, did not file a statement of points within fifteen days of the
termination order as required under Section 
263.405(b).  The trial court
attempted to enlarge the time for filing the statement by granting appellant=s motion to extend the time within
which to file her statement of points on appeal.  The statute does not allow for such an
extension.  Given that the policy behind
subsection (b) of the statute is to shorten postjudgment delays, we hold that
the trial court cannot extend the date on which a statement of points is due to
be filed.[1]  See In re D.R.L.M., 84 S.W.3d at 290
(finding that subsection (b) was enacted to reduce postjudgment delays before
the enactment of subsection (i)). 




The statute is clear that a party who does not
file a statement of the points on appeal within fifteen days does not preserve
any issues for appeal.[2]  Section 263.405(b).  Not only does the party waive those issues,
but the statute also prohibits the appellate court  from considering any issues that are not
contained in a statement of points on appeal.[3]  Section 263.405(i).
We affirm the trial court=s
order. 
 
 
JIM R. WRIGHT
CHIEF JUSTICE
 
May 10, 2007
Panel
consists of:  Wright, C.J.,
McCall,
J., and Strange, J.




[1]We join the other courts of appeals that have expressed
due process concerns about applying this statute to termination proceedings of
parental rights that are final, irrevocable and of constitutional
magnitude.  See, e.g., In re R.C.,
No. 07-06-00444-CV, 2007 WL 1219046, at *2 (Tex. App.CAmarillo April 25, 2007, no pet. h.).


[2]We do not address the procedure for determining issues
raised in a motion for new trial that temporally could not have been raised in
a timely filed statement of points on appeal. 


[3]If the trial court finds that an appeal is frivolous
under Tex. Fam. Code Ann. ' 263.405(d)(3) (Vernon Supp. 2006), the aggrieved parent can appeal, but
the appeal is limited to the frivolousness issue. Tex. Fam. Code Ann.  ' 263.405(g) (Vernon
Supp. 2006); In re K.D.,
202 S.W.3d 860, 865 (Tex.
App.CFort Worth 2006, no pet.).  In this case, the trial court did not find
the appeal to be frivolous.


