                                   NO. 07-10-00436-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                       JULY 27, 2011


                    IN THE INTEREST OF K.L.J., K.N.J. AND B.H.B.,
                                   CHILDREN


            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2000-509,448; HONORABLE KEVIN HART, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, H.P.B.,1 appeals the termination of his parental rights to his child,

B.H.B. We affirm the judgment of the trial court.


                                        Background


       The trial court’s order terminating H.P.B.’s parental rights was entered on

September 29, 2010. The trial court found, by clear and convincing evidence, that

termination would be in the best interest of H.P.B.’s child, B.H.B., because H.P.B.


       1
         In accordance with Texas Rule of Appellate Procedure 9.8(b)(2), appellant and
his child will be identified by their initials to protect the minor child’s identity. See TEX.
R. APP. P. 9.8(b)(2).
knowingly placed or allowed B.H.B. to remain in conditions or surroundings which

endangered the child’s physical or emotional well-being, engaged in conduct or placed

the child with persons that engaged in conduct which endangered the child’s physical or

emotional well-being, and failed to comply with a court order. See TEX. FAM. CODE ANN.

§ 161.001(1)(D), (E), (O) (West Supp. 2010).2 H.P.B.’s appointed trial counsel timely

filed a Motion for New Trial and Notice of Appeal with the trial court.3 H.P.B. filed an

application for appointment of counsel on appeal and affidavit of indigence on October

18. According to the clerk’s record, the trial court held a hearing on H.P.B.’s motion and

application on October 19. As a result of this hearing, the trial court denied H.P.B.’s

new trial motion, denied his claim for indigence, and deemed his appeal not frivolous.

See § 263.405(d).


      Subsequent to the trial court’s October 19 Order, H.P.B. filed a pro se Motion for

New Trial and Notice of Appeal on October 29, in which he raised additional issues he

intends to appeal. However, this pro se motion and notice was untimely filed. See §


      2
        Further reference to provisions of the Texas Family Code will be by reference to
“section ___” or “§ ___.”
      3
          Under Texas Family Code section 263.405(b), an appeal of a final order
terminating a parent’s rights to a child in a suit brought by the Texas Department of
Protective and Regulatory Services (hereafter “Department”) must include a statement
of points on which the party intends to appeal. See § 263.405(b)(2) (West 2008). The
statement of points must be filed within 15 days after the date the final order is signed
by the trial court. See § 263.405(b). The required statement may be combined with a
motion for new trial. § 263.405(b-1). In this case, H.P.B.’s Motion for New Trial
indicates his intent to appeal the Department’s alleged denial of psychological
assistance to H.P.B as well as the legal and factual sufficiency of the evidence to
support the termination. We construe these issues to have been a timely filed
statement of points. See In re T.J.H., No. 13-06-00407-CV, 2009 Tex.App. LEXIS
6688, at *15-*16 (Tex.App.—Corpus Christi Aug. 26, 2009, pet. denied) (mem. op.).

                                            2
263.405(b). As such, these additional issues may not be considered by this Court. See

In re J.O.A., 283 S.W.3d 336, 341 (Tex. 2009) (citing section 263.405(i) as barring an

appellate court from considering any issue not presented to the trial court in a timely

filed statement of points).


       On December 6, the trial court entered an order discharging H.P.B.’s trial counsel

from further representation of H.P.B.4 On December 16, this Court sent H.P.B. notice

that the reporter’s record had not yet been requested and directed H.P.B. to request this

record by December 28, or the Court may set a deadline for H.P.B.’s brief in the

absence of a reporter’s record. See TEX. R. APP. P. 37.3(c)(1). After receiving no

response to our correspondence, on January 7, 2011, we informed H.P.B. that his brief

was due by February 7.        H.P.B. filed three different documents by this February 7

deadline. None of these documents come close to complying with the requirements of

Texas Rule of Appellate Procedure 38.1; however, this Court construed these

documents to collectively constitute H.P.B.’s appellate brief. The Department filed its

brief in response on March 24. H.P.B. filed a document entitled a “Final Summary Brief”

on May 3, that this Court construed to be a reply brief. See TEX. R. APP. P. 38.3.




       4
         H.P.B. requested this Court appoint him appellate counsel, and supported that
request with an affidavit of inability to pay costs. However, this request was submitted
after the trial court held a hearing on H.P.B.’s claim of indigence and denied his claim.
H.P.B. was entitled to appeal the trial court’s denial of his claim of indigence in
accordance with Texas Family Code section 263.405(g). See § 263.405(g). However,
nothing in H.P.B.’s request for appointment of counsel challenged the trial court’s
indigency determination. Further, because no records from the October 19, 2010
hearing on H.P.B.’s motion for new trial are part of the appellate record, we are unable
to review this ruling of the trial court.
                                            3
       In H.P.B.’s four filings with this Court, he does not present any issues with the

trial court’s judgment. See TEX. R. APP. P. 38.3(f). After reading each of H.P.B.’s filings

with this Court, he appears to challenge the trial court’s finding that H.P.B. failed to

comply with a court order, but he does not challenge either of the other bases for

termination of his parental rights or the finding that termination would be in the best

interest of B.H.B.


                         Termination of H.P.B.’s Parental Rights


       Liberally construing H.P.B.’s appellate briefs, he appears to challenge the trial

court’s finding that he failed to comply with a court order.       However, the Order of

Termination challenged by H.P.B. also includes findings that H.P.B. knowingly placed or

allowed B.H.B. to remain in conditions or surroundings which endangered the child’s

physical or emotional well-being, and engaged in conduct or knowingly placed the child

with persons that engaged in conduct which endangered the child’s physical or

emotional well-being. See § 161.001(1)(D), (E). Further, H.P.B. does not challenge the

trial court’s finding that termination of H.P.B.’s parental rights is in the best interest of

B.H.B. See § 161.001(2).


       A parent's rights to "the companionship, care, custody, and management" of his

or her children are constitutional interests "far more precious than any property right."

Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In

a termination case, the State seeks to end parental rights permanently--to divest the

parent and child of all legal rights, privileges, duties, and powers normally existing

between them, except for the child's right to inherit. § 161.206(b) (West 2008). While

                                             4
parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).       Just as it is imperative for courts to recognize the

constitutional underpinnings of the parent-child relationship, it is also essential that

emotional and physical interests of the child not be sacrificed merely to preserve that

right. Id.


       In proceedings to terminate the parent-child relationship brought under section

161.001, the Department must establish one or more of the acts or omissions

enumerated under subsection (1) of the statute, and must also prove that termination is

in the best interest of the child. § 161.001; Texas Dep't of Human Servs. v. Boyd, 727

S.W.2d 531, 533, (Tex. 1987).       While the evidence must establish a violation of

subsection (1) and that termination is in the best interest of the child, only one finding

alleged under subsection (1) is necessary to support a judgment of termination. In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re R.W., 129 S.W.3d 732, 744 (Tex.App.—

Fort Worth 2004, pet. denied).


       An appeal of a termination order is limited to the issues presented in the timely

filed statement of points. See § 263.405(i); see also Pool v. Texas Dep't of Family &

Protective Servs., 227 S.W.3d 212, 215 (Tex. App.--Houston [1st Dist.] 2007, no pet.).

To satisfy the requirements of section 263.405(i), a statement of points must be

"sufficiently specific" to allow the trial court to correct any erroneous findings on the

challenged grounds. In re J.J.C., 302 S.W.3d 436, 444 (Tex. App.--Houston [14th Dist.]

2009, pet. denied). If the statement of points on appeal does not specifically challenge




                                            5
the sufficiency of the evidence supporting the statutory grounds for termination, those

issues are not preserved for appellate review. Id.


      In the present case, H.P.B.’s timely filed statement of points indicate his intent to

appeal the Department’s alleged denial of psychological assistance as well as the legal

and factual sufficiency of the evidence “to support the judgment of the Court.” Nothing

in this statement of points specifically challenges the trial court’s findings that H.P.B.

violated section 161.001(1)(D) and (E) nor that termination would be in the best interest

of B.H.B. As such, those issues are not preserved for appellate review. 5 Id.


                                       Conclusion


      For the foregoing reasons, we affirm the trial court’s Order of Termination.




                                                       Mackey K. Hancock
                                                            Justice




      5
         No reporter’s record was filed in this cause due to H.P.B.’s failure to request
same, and, after notice and a reasonable opportunity to cure was given H.P.B. by this
Court, this Court chose to consider and decide those points that do not require a
reporter’s record. See TEX. R. APP. P. 37.3(c)(1). Thus, even were we to assume that
H.P.B.’s statement of points challenging the sufficiency of the evidence to support the
trial court’s termination was sufficiently specific to preserve a challenge to the
sufficiency of the evidence, in the absence of a reporter’s record, this Court must
assume the sufficiency of the evidence supporting the judgment. See Hebisen v. Clear
Creek Indep. Sch. Dist., 217 S.W.3d 527, 536 (Tex.App.—Houston [14th Dist.] 2006, no
pet.).
                                            6
