                                 NO. 07-07-0042-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 FEBRUARY 25, 2008

                         ______________________________



       IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., and C.T.M., CHILDREN

                       _________________________________

      FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;

               NO. 7019; HONORABLE PHIL VANDERPOOL, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.



                                       OPINION



      This is an accelerated appeal of a final order rendered under subchapter E of

chapter 263 of the Texas Family Code pertaining to the placement of four children. As to
two children, J.O.A. and T.J.A.M.,1 the order names a relative of the children as their

managing conservator; and, as to two children, T.J.M. and C.T.M., the order involuntary

terminates the parental rights of Appellants, Timothy and Trena,2 and appoints the Texas

Department of Protective and Regulatory Services as managing conservator. Appellants

jointly raise ten points of error. Points of error one and two challenge the constitutionality

of § 263.405(b) and (i) of the Texas Family Code,3 while points of error three through ten

challenge the findings of the trial court and the sufficiency of the evidence.



       The Department’s brief presents eight issues and the brief filed on behalf of the

children by their attorney ad litem presents four issues. Although not clearly designated

as such, the “issues” presented by the Department and the attorney ad litem are in

actuality responses to Appellants’ points. When practicable, an appellee’s brief should

respond to the appellant’s issues or points in the order that the appellant presented those

issues or points. Tex. R. App. P. 38.2(a)(2). Because both the Department and the



       1
       To protect the parents’ and children’s privacy, we refer to the parents by their first
names and the children by their initials. See Tex. Fam. Code Ann. § 109.002(d) (Vernon
2002).
       2
         The trial court’s order reflects Trena as Treena; however, throughout the record she
is referred to as Trena. Thus, we refer to her as Trena.
       3
       Unless otherwise indicated, this and all future references to sections refer to the
Texas Family Code Annotated (Vernon 2002 & Supp. 2007).

                                              2
attorney ad litem contend that the order of the trial court should be affirmed, we will treat

their issues as a response to Appellants’ points of error and will not otherwise address their

issues individually.



       Relying upon § 263.405(i), the Department contends that Trena and Timothy are

precluded from having any of their arguments addressed because they failed to file a

statement of points with the trial court within fifteen days after the entry of the final order

as required by § 263.405(b).          The Department further contends that constitutional

complaints were waived because they were not timely and properly presented to the trial

court and preserved for review. As to the non-constitutional issues, the Department and

the attorney ad litem contend that the trial court’s order is supported by the law and the

evidence. We affirm in part and reverse and remand in part.



                                    Procedural Background



       The Department of Family and Protective Services filed suit seeking (1)

determination of the parentage of J.O.A.;4 (2) termination of the parental rights of Trena

as to her children J.O.A., T.J.A.M., T.J.M., and C.T.M.; and (3) termination of the parental

rights of Timothy as to his children T.J.A.M., T.J.M., and C.T.M. Following a two-part


       4
           It is undisputed that Timothy is not J.O.A.’s natural father.

                                                 3
hearing conducted on August 16, 2006, and February 8, 2007,5 the court signed an Order

of Termination and Final Order in Suit Affecting the Parent-Child Relationship which

provided:



       (1)    as to J.O.A., the trial court signed an order terminating the
              parental rights, if any, of any alleged or unknown father, did not
              terminate Trena’s parental rights; but did find that the
              appointment of Trena as managing conservator would not be
              in the child’s best interest and then appointed J.O.A.’s
              maternal grandmother as his managing conservator, without
              appointing Trena as a possessory conservator;
       (2)    as to T.J.A.M., the trial court did not terminate either Trena or
              Timothy’s parental rights; however, the court did find that the
              appointment of either parent as managing conservator would
              not be in the child’s best interest and then appointed the child’s
              maternal grandmother as her managing conservator, without
              appointing either Trena or Timothy as a possessory
              conservator; and
       (3)    as to T.J.M. and C.T.M., the trial court terminated Trena and
              Timothy’s parental rights and appointed the Department of
              Family and Protective Services as managing conservator.



       The trial court’s final order was signed on February 16, 2007. On February 21st,

Trena’s trial counsel filed her notice of appeal and also filed a motion to withdraw. On

February 22nd, Timothy’s trial counsel filed his notice of appeal and also filed a motion to


       5
         Although this proceeding was subject to dismissal on August 22, 2006, pursuant
to § 263.401(a), at the conclusion of the hearing on August 16, 2006, without making a
final ruling, the trial court announced that it was taking the matter under advisement. On
August 18, 2006, the trial court granted an extension, pursuant to § 263.401(b), set a new
final hearing date of February 8, 2007, and a new dismissal date of February 17, 2007.

                                              4
withdraw. The trial court never ruled on the motions to withdraw; however, on March 5th,

(seventeen days after the date the final order was signed), the court appointed appellate

counsel to represent Trena, and on March 15th (twenty-seven days after the date the final

order was signed), the same appellate counsel was appointed to represent Timothy.

Neither Trena nor Timothy filed a statement of points within fifteen days afer the date the

final order was signed as required by § 263.405(b) or a timely motion for new trial.



                                  Factual Background



       Trena is the biological mother of J.O.A., a male child born November 10, 1989.

Trena and Timothy are the biological mother and father of T.J.A.M., a female child born

December 29, 1996, and T.J.M. and C.T.M., male twins born July 27, 2005.



       J.O.A. has lived with his maternal grandmother since he was four years old.

T.J.A.M. has primarily lived with Trena, except for a period of approximately one and half

years while Trena was incarcerated. During that period, T.J.A.M. also lived with Trena’s

mother. T.J.M. and C.T.M. have never lived with either Trena or Timothy because they

were removed from their parents and placed in foster care before ever leaving the hospital

after their birth.




                                            5
       Trena and Timothy have had many problems during their marriage, mainly due to

Trena’s persistent drug use. As a result, Trena and Timothy have not always lived

together. During periods of their separation, T.J.A.M. would primarily stay with either Trena

or Trena’s mother. During their marriage, Trena was placed on probation for domestic

violence committed against Timothy. When Timothy was in his teens he was incarcerated

for aggravated robbery.6 His parole was subsequently revoked based upon an incident

of domestic violence committed against Trena.



       For several years, Trena struggled with her use of drugs, primarily cocaine and

marihuana. She would have periods of sobriety and periods of drug use. Timothy also

struggled with the use of marihuana. Trena and Timothy have attended a substance

abuse program together. Trena was using drugs in early 2005 when she learned that she

was pregnant with C.T.M. and T.J.M. When the twins were born, they were premature.

At that time, Trena admitted to marihuana use and tested positive by urine drug screen for

cocaine and barbiturates. At trial, she admitted to going on a five hour cocaine binge on

July 25, 2005, just prior to her giving birth to the twins.




       6
           Timothy was 33 years of age when the final order was entered.

                                               6
      This episode of involvement by the Department began when the twins were born.

On August 15, 2005, prior to the twins being released from the hospital, the Department

intervened on behalf of the children the subject of this suit and removed them from the

custody of Trena and Timothy. The Department’s immediate concern primarily centered

around the twins and Trena’s use of drugs. The two older children, J.O.A. and T.J.A.M.,

were placed with their maternal grandmother and the twins, T.J.M. and C.T.M., were

placed with foster parents.



      After the removal of the children, Trena was incarcerated from August 6, 2005, until

December 12, 2005, for possession of cocaine. In February of 2006, she was asked to

leave a women’s shelter after she tested positive for cocaine. She was incarcerated from

June 5, 2006, until June 16, 2006, for criminal trespass. At the August 2006 hearing,

Trena testified that she last used cocaine on May 25, 2006. She then tested positive for

cocaine on November 1, 2006 and January 3, 2007. During the period subsequent to the

removal of the children, she also failed to maintain steady employment or a place of

residence.



      After the removal of the children, Timothy was allowed supervised visitation with

T.J.M. and C.T.M; however, he was never allowed to have possession of the twins alone.



                                           7
Timothy did receive a copy of his service plan on September 26, 2005.                He was

incarcerated from November 2005 until January 2006 on domestic violence charges that

allegedly took place in 2003. Those charges were subsequently dismissed after Trena

admitted to the prosecutor that she had falsely accused Timothy. In February 2006,

Timothy was advised that he needed to attend parenting classes and go for a drug screen

prior to February 24, 2006. He did not complete that drug screen. Timothy subsequently

moved to California where he attended a substance abuse program in May 2006. He

testified that he also attended parenting classes while in California. Timothy tested positive

for marihuana use in July 2006. At trial, Timothy admitted to using marihuana and testified

that the last time he had used marihuana was on or about June 28, 2006. He missed a

drug screen in October 2006. Additionally, Timothy was delinquent on his child support.

After returning to Texas, Timothy had steady employment, a better car and house, had

daycare available, and was attending parenting classes. He also presented evidence of

three negative drug tests.



                             § 263.405(b) Statement of Points



       At the outset, we must address the Department’s contention that the failure to timely

file a statement of points, as required by § 263.405(b) of the Texas Family Code,



                                              8
precludes review of any of the issues raised. A party intending to appeal a final order

rendered under subchapter E of chapter 263 of the Texas Family Code 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. § 263.405(b). The statement of points may be filed

separately or it may be combined with a motion for new trial. Id. An appellate court may

not consider any issue that was not specifically presented to the trial court in a timely filed

statement of points. § 236.405(i).



       While several of our sister courts have questioned the practical application and

constitutional validity of this statute and have recommended that the Legislature reconsider

the statute in light of the potentially harsh effect of its application,7 every intermediate

appellate court in this State has agreed that the clear language of the statute prohibits

appellate courts from considering points not properly preserved by the timely filing of a

statement of points.8


       7
        In re R.M.R., 218 S.W.3d 863, 864 (Tex.App.–Corpus Christi 2007, no pet.); Pool
v. Tex. Dep’t. of Family & Protective Services, 227 S.W.3d 212, 215 (Tex.App.–Houston
[1st Dist.] 2007, no pet.); In re D.A.R., 201 S.W.3d 229, 231 (Tex.App.–Fort Worth 2006,
no pet.); In re E.A.R., 201 S.W.3d 813, 814 (Tex.App.–Waco 2006, no pet.) (Vance, J.,
concurring).
       8
       [1st] Pool v. Tex. Dep’t. of Family & Protective Services, 227 S.W.3d 212, 215
(Tex.App.–Houston [1st Dist.] 2007, no pet.); [2nd] In re D.A.R., 201 S.W.3d 229, 231
(Tex.App.–Fort Worth 2006, no pet.); [3rd] Coey v. Tex. Dep’t of Family & Protective

                                               9
       The order being appealed in this case is a final order rendered under subchapter

E of chapter 263 of the Texas Family Code; therefore, Trena and Timothy were required

to file a statement of points. The failure to timely file a statement of points does not

deprive the appellate court of jurisdiction over the appeal; however, it is a procedural

prerequisite to the appellate court’s authority to consider any issue presented. See §

263.405(i). See also In re R.C., ___S.W.3d___ , No. 07-06-0444-CV, 2007 WL 1219046,

*1 (Tex.App.–Amarillo April 25, 2007, no pet.). Because Trena and Timothy’s points were

not preserved for review as otherwise required by § 263.405(b), we will proceed to consider

their constitutional challenge contending that their federal and State due process right to



Services, No. 03-05-0679-CV, 2006 WL 1358490, *2 (Tex.App.–Austin May 19, 2006, no
pet.) (not designated for publication); [4th] In re S.E., 203 S.W.3d 14, 15 (Tex.App.–San
Antonio 2006, no pet.); [5th] In re M.D., __ S.W.3d __, No. 05-06-0779-CV, 2007 WL
1310966, *1 (Tex.App.–Dallas May 7, 2007, no pet.); [6th] In re H.H.H., No. 06-06-0093-CV,
2006 WL 2820063, *1 (Tex.App.–Texarkana Oct. 4, 2006, no pet.) (not designated for
publication); [7th] In re R.C., __ S.W.3d __, No. 07-06-0444-CV, 2007 WL 1219046
(Tex.App.–Amarillo April 25, 2007, no pet.); [8th] In re C.B.M., 225 S.W.3d 703, 706
(Tex.App.–El Paso 2006, no pet.); [9th] In re J.F.R., No. 09-06-0115-CV, 2007 WL 685640,
*1 (Tex.App.–Beaumont March 8, 2007, no pet.) (not designated for publication); [10th] In
re J.W.H., 222 S.W.3d 661, 662 (Tex.App.–Waco 2007, no pet.); [11th] In re F.C.G., No.
11-07-0068-CV, 2007 WL 2823685, *1 (Tex.App.–Eastland Sept. 27, 2007, pet. filed Nov.
6, 2007) (not designated for publication); [12th] In re J.H., No. 12-06-0002-CV, 2007 WL
685640, *2 (Tex.App.–Tyler Jan. 24, 2007, no pet.) (not designated for publication); [13th]
In re R.M.R., 218 S.W.3d 863, 864 (Tex.App.–Corpus Christi 2007, no pet. h.); [14th] In re
C.M., 208 S.W.3d 89, 92 (Tex.App.–Houston [14th Dist.] 2006, no pet.).



                                            10
effective assistance of counsel was violated by counsels’ failure to file a statement of

points.



                                 Constitutional Challenge



          Relying on the recent decision in In re B.S., No. 09-06-0293-CV, 2007 WL 1441273

(Tex.App.–Beaumont May 22, 2007, no pet.) (not designated for publication), the

Department contends that Trena and Timothy’s constitutional challenge is precluded

because they failed to raise that challenge in a timely filed statement of points. In re B.S.

is clearly distinguishable from this case. In In re B.S., the appellant’s ineffective assistance

of counsel claims did not pertain to the failure to timely file a statement of points. Two

ineffective assistance claims, which were included in a timely filed statement of points,

were overruled because the appellant failed to establish ineffective assistance, and two

ineffective assistance claims, which were not included in a timely filed statement of points,

were also overruled based upon § 263.405(i). None of the appellant’s constitutionality

claims in In re B.S. rested upon a claim of ineffective assistance of counsel for failure to

timely file a statement of points. In this case, we are squarely faced with that challenge.



          The Department also contends that Trena and Timothy’s constitutional claims were

waived because they were not procedurally preserved by the filing of a motion for new trial.

                                              11
Relying upon In re B.L.D., 113 S.W.3d 340 (Tex. 2003), the Department argues that the

fundamental-error doctrine does not apply to procedural preservation rules, nor does due

process require appellate review of unpreserved complaints in parental termination cases.



       However, Trena and Timothy contend that § 263.405(i) is unconstitutional, as

applied to them, because they were denied their due process right to effective assistance

of counsel. The Department also contends that Trena and Timothy’s constitutional

challenge is precluded because they failed to raise that challenge in a timely filed motion

for new trial. While we note an “as applied” constitutional challenge is waived if not raised

at the trial court level, see In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); In re S.K.A., 236

S.W.3d 875, 887 (Tex.App.–Texarkana 2007, pet. filed Dec. 20, 2007), the very nature of

Trena and Timothy’s complaint is that they are being unconstitutionally deprived of their

right to present the merits of their appeal by being denied effective assistance of counsel.

It matters not whether counsel failed to preserve their right of appeal by failing to file a

statement of points or a motion for new trial, the constitutional principals are the same.



       We further acknowledge that as an established rule of judicial practice, appellate

courts should not decide constitutional questions when an issue can be resolved on non-

constitutional grounds. See, e.g., In re B.L.D., 113 S.W.3d at 349. Therefore, if their



                                             12
counsel was not ineffective we would not need to address their constitutional claims.

Accordingly, we will proceed to discuss Trena and Timothy’s claims of ineffective

assistance of counsel before we address the merits of their constitutional due process

claims.



                           Ineffective Assistance of Counsel



       Trena and Timothy allege that their counsel failed to provide competent assistance

after the termination proceedings in violation of their rights to due process of law.

Specifically, they complain that their respective trial counsel were ineffective because they

failed to preserve a review of their complaints on appeal by neglecting to ensure that a

statement of points, as required by § 263.405(b), was timely filed.



       In a suit filed by a governmental entity in which termination of the parent-child

relationship is requested, indigent parents who respond in opposition to the termination are

entitled to the appointment of counsel to represent their interests. See § 107.013(a)(1).

This statutory right to the appointment of counsel necessarily embodies the right to

effective assistance of counsel at every critical stage of the proceeding. In re M.S., 115

S.W.3d 534, 544 (Tex. 2003). A “critical stage” in a termination proceeding is any stage




                                             13
where substantial rights of the parties may be affected. Cf. Mempa v. Rhay, 389 U.S.128,

134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967).



       Because Texas provides the right of an appeal from a judgment terminating parental

rights, part of the process of ensuring the accuracy of judgments necessarily includes the

right to effective appellate review. In re M.S., 115 S.W.3d at 546. Though avenues of

appeal are not required to be established, it is now fundamental that once established,

these avenues of review must be kept free of unreasoned distinctions that can only impede

open and equal access to the courts. M.L.B. v. S.L.J., 519 U.S. 102, 111, 117 S.Ct. 555,

136 L.Ed. 473 (1996); In re M.S., 115 S.W.3d at 547. Not only must a parent be allowed

to appeal the termination of his or her parental rights, but that appeal must be meaningful.

In re S.K.A., 236 S.W.3d at 890.



       Because a statement of points is a procedural prerequisite for appellate review, the

deadline date for filing a statement of points is a critical stage of the proceeding.

Accordingly, we hold that Trena and Timothy were entitled to effective assistance of

counsel through the deadline date for filing a statement of points in compliance with the

requirements of § 263.405(b).




                                            14
       In a suit in which termination of the parent-child relationship is sought, the

appropriate standard of review for effective assistance of counsel is the same standard set

forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). See In re M.S., 115 S.W.3d at 545. The Strickland

standard is well-established, fairly straightforward, and places a sufficiently high burden on

the movant to establish: (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the complaining party. Strickland, 466 U.S. at 687; In re M.S., 115

S.W.3d at 545.



       When a party is represented by counsel during trial and the record does not reflect

trial counsel withdrew or was replaced by new counsel after judgment has been entered,

there is a rebuttable presumption that the trial counsel continues to represent that party

through the time limit for filing a motion for new trial. Cf. Smith v. State, 17 S.W.3d 660,

662-63 (Tex.Crim.App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App.

1998). In the case at bar, counsel for both Trena and Timothy indicated that they

understood that they had a continuing obligation when they prepared the individual notices

of appeal and when they filed their own motion to withdraw. Therefore, we conclude that

trial counsel’s duty to represent the interests of an indigent parent in a termination

proceeding does not end with trial but, instead, continues until the judgment becomes final

                                             15
or until counsel is expressly discharged by the trial court. Because Trena and Timothy’s

respective trial counsel had not been discharged or replaced on or before the deadline

date for the filing of a statement of points, we find they had a duty to file a timely statement

of points in accordance with the requirements of § 263.405(b).



       With respect to whether counsel’s performance in a particular case is deficient, we

must take into account all of the circumstances surrounding the case and must primarily

focus on whether counsel performed in a “reasonably effective” manner; that is, whether

the errors made by counsel were so serious that counsel was not functioning as the

“counsel” guaranteed by the Sixth Amendment. In re M.S., 115 S.W.3d at 545, (quoting

Strickland, 466 U.S. at 687). Counsel’s performance falls below acceptable levels of

performance when the representation is so grossly deficient as to render the proceedings

“fundamentally unfair.” Brewer v. State, 649 S.W.2d 628, 630 (Tex.Crim.App. 1983); In

re M.S., 115 S.W.3d at 545. In making this determination, we must give great deference

to counsel’s performance, and we should find ineffective assistance of counsel only in

those situations where the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” In re M.S., 115 S.W.3d at 545 (quoting Garcia v.

State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)).




                                              16
        The filing of a statement of points is a straightforward procedure. That a statement

of points is required for appellate review of a final order rendered under subchapter E of

chapter 263 of the Texas Family Code is something that any competent trial counsel

practicing in this area of the law should know. Under the facts of this case, we find that

Trena and Timothy’s trial counsels’ failure to ensure that statements of points were timely

filed amounted to ineffective assistance, satisfying the first prong of the Strickland

standard. However, our inquiry does not end there.



       Having determined that Trena and Timothy’s counsels’ failure to file statements of

points was deficient, we must now address the second Strickland prong and determine

whether the deficient performance prejudiced the complaining party. In this case, Trena

and Timothy both contend they have been prejudiced by their respective counsel’s failure

to file a statement of points because by failing to do so they have been deprived of the right

to show harm pertaining to the merits of their appeal. In essence, Trena and Timothy

complain that because they have been deprived of their right to present a meritorious point

of appeal, they have been harmed. To the extent that their issue is meritorious, we find

that there is a reasonable probability that but for counsel’s unprofessional error, the result

of the proceeding would be different. Accordingly, we find that Trena and Timothy’s




                                             17
respective trial counsel provided ineffective assistance of counsel by failing to file a timely

statement of points.



                                   Due Process Claims



       Recognizing that their legal and factual sufficiency claims are procedurally barred

by this failure to file a statement of points, Trena and Timothy contend that § 263.405(b)

and (i) violate their federal and State due process rights. Specifically, in their first and

second points, Trena and Timothy contend their due process rights, as guaranteed by the

United States and Texas Constitutions, have been violated because their trial counsel

failed to timely file a statement of points, thereby depriving them of their due process rights

to effective assistance of counsel.



       Because Trena and Timothy’s due process claims cannot be disposed of by non-

constitutional means, we will proceed to consider their legal and factual sufficiency claims

in conjunction with their contention that their federal and State due process rights to

effective assistance of counsel was violated by counsels’ failure to file timely statements

of points.




                                              18
       The Texas Supreme Court has held that in cases where counsel was ineffective in

preservation of jury charge error, due process considerations did not require our procedural

rules to be set aside. See In re B.L.D., 113 S.W.3d at 351-54; In re J.F.C., 96 S.W.3d 256,

272-74 (Tex. 2002). The Court further suggested, however, that the failure to preserve a

factual sufficiency question might very well rise to the level of a due process violation

depending on a “different calibration of the [Mathews v.] Eldridge9 factors.” In re B.L.D.,

113 S.W.3d at 354; In re M.S., 115 S.W.3d at 547-48. In conducting an Eldridge due

process analysis, we must weigh these factors and then balance the net result against the

presumption that our procedural rules comport with constitutional due process

requirements. In re B.L.D., 113 S.W.3d at 354; In re M.S., 115 S.W.3d at 547.



                                      Eldridge Factors



       Parental termination proceedings implicate fundamental liberties and such

proceedings must comply with the requirements of procedural due process. Santosky v.

Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The proper test for

analyzing the constitutionality of a procedure in the parental termination context is the

three-part balancing test established by Eldridge, 424 U.S. at 335. Determining what



       9
           Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

                                             19
process is due in a particular proceeding requires consideration of three factors: (1) the

private interest affected by the proceeding or official action; (2) the countervailing

governmental interest supporting use of the challenged proceeding; and (3) the risk of an

erroneous deprivation of that interest due to the procedures used. Id.



       Concerning the first Eldridge factor, the private interests at stake, the Supreme

Court has acknowledged that the right of a parent to maintain custody of and raise his or

her child “is an interest far more precious than any property right.” Santosky, 455 U.S. at

758-59. A parent’s interest in the accuracy and justice of a termination decision is a

“commanding one.” Lassiter v. Department of Social Services of Durham County, N.C.,

452 U.S.18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Both the parent and the child

have a substantial interest in that decision. Therefore, the parent’s fundamental liberty

interest in maintaining custody and control of his or her child, the risk of permanent loss

of the parent-child relationship, and both the parents’ and the child’s interest in a just and

accurate decision “weigh heavily in favor of permitting a factually sufficiency review” of the

evidence where counsel has unjustifiably failed to preserve that error. In re M.S., 115

S.W.3d at 548. On the whole, the parent’s and the child’s interests in ensuring that the

decision to permanently extinguish the family bond is an accurate and just decision weighs

heavily in favor of permitting appellate review of that decision, despite the statutory bar,

                                             20
when assistance of counsel in meeting the procedural prerequisites has been effectively

denied. In re S.K.A., 236 S.W.3d at 893.



       The governmental interest in parental rights termination cases is to protect the best

interest of the child. In re B.L.D., 113 S.W.3d at 353. Indeed, the entire statutory scheme

of the Texas Family Code for protecting children’s welfare focuses on the child’s best

interest. See §§ 153.002, 161.001(2), 263.306(4) and (5). This interest is closely aligned

with the State’s interest to see that termination cases are not unduly prolonged. In re M.S.,

115 S.W.3d at 548. This policy is reflected in the statutory provision requiring that all

appeals from termination proceedings be given precedence over other civil cases and shall

be accelerated by the appellate courts. § 109.002(a). Factual sufficiency determinations

implicate greater appellate delays; however, the State’s interests in economy and efficiency

pale in comparison to the private interests at stake, and to the risk that a parent may be

erroneously deprived of his or her parental rights and the child may be deprived of the

parent’s companionship. Id. The State’s paramount interest in meeting the best interest

of the child is best served by a procedure that promotes an accurate determination of

whether the natural parents can ensure the safety and stability of the child. Id. at 549.

Thus, the second Eldridge factor also weighs in favor of permitting a sufficiency review

when counsel unjustifiably fails to follow procedural requirements. Id.

                                             21
       Perhaps the most critical Eldridge factor is the third factor, the risk of an erroneous

deprivation of parental rights. The “pivotal” fact in the analysis is that termination of

parental rights is “traumatic, permanent, and irrevocable.” Id. Termination divests for all

time that natural right as well as all other legal rights, privileges, duties, and powers existing

between a parent and a child. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). For this

reason, any significant risk of error is unacceptable. In re M.S., 115 S.W.3d at 549. In the

subjective world of a child’s best interest, absolute certainty can never be guaranteed;

however, the risk of an erroneous deprivation of parental rights based upon evidence that,

though minimally existing, fails to clearly and convincingly establish grounds for termination

should not be tolerated. Thus, if counsel unjustifiably fails to file a statement of points

raising a meritorious sufficiency of the evidence point, then such incompetency raises the

risk of erroneous deprivation too high, and our procedural rule governing preservation must

give way to constitutional due process considerations. When we balance the presumption

that our procedural rules comport with constitutional due process requirements against the

Eldridge factors, we conclude that those factors weigh in favor of review most in those

situations where a review of the sufficiency of the evidence raises the greatest concern for

the potential of an erroneous deprivation of parental rights. In other words, where

ineffective assistance of counsel has prevented a review of the sufficiency of the evidence,



                                               22
and a review of the sufficiency of the evidence reveals that there is a high probability that

a parent’s rights have been erroneously terminated, then due process considerations (i.e.,

the Eldridge factors) weigh in favor of a sufficiency analysis, notwithstanding a procedural

impediment. We acknowledge that this reasoning will require an appellate court to review

both legal and factual sufficiency issues to determine if it should even consider those

issues. Any lack of logic in this process can be attributed to the lack of logic in the statute

itself.



          We do not hold that every failure to preserve error through the failure to file a

statement of points rises to the level of a due process violation. Our ruling is specifically

limited to that situation where trial counsel has failed to timely file a statement of points

raising a meritorious issue concerning legal or factual sufficiency of the evidence.

Accordingly, in the context of a valid issue on appeal concerning the due process

considerations of effective assistance of counsel in preserving a legal or factual sufficiency

claim through the filing of a statement of points, we will proceed to review Trena and

Timothy’s legal and factual sufficiency points to determine if the Eldridge factors weigh in

favor of a consideration of those points notwithstanding the absence of a timely filed

statement of points.




                                              23
      We are mindful of the gut-wrenching environment within which parental termination

cases are decided, and we are sensitive to the subjectivity and lack of certainty that can

be obtained in even the best litigated parental-termination cases; however, in cases such

as the case at bar, where the Department seeks termination of both parents’ rights to

multiple children based primarily upon acts of one parent directed towards less than the

whole number of children, we cannot be swept away with an emotional determination of

the best interests of the children at the expense of factually sufficient grounds for

termination as to each parent, as to each child. In other words, although contextually

connected, the grounds for termination must independently exist as to each parent, as to

each child. Therefore, in our review of Trena and Timothy’s legal and factual sufficiency

points, we choose to address Trena’s points separately from Timothy’s, and we choose to

address each child independently.



                      Standard of Review in Termination Cases



      In proceedings to terminate the parent-child relationship, the petitioner must

establish one or more acts or omissions enumerated by statute and must additionally prove

that termination of the parent-child relationship is in the best interest of the child. §

161.001. Both elements must be established and proof of one element does not relieve



                                           24
the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d 367,

370 (Tex. 1976). Because termination of parental rights is of such weight and gravity, due

process requires the petitioner to justify termination by clear and convincing evidence. §

161.001; In Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980). Clear and convincing

evidence is that measure or degree of proof which will produce in the mind of the trier of

fact a firm belief or conviction as to the truth of the allegations sought to be established.

In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).



       In a legal sufficiency review of the evidence to support an order terminating parental

rights, we look at all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true. § 101.007 (Vernon 2002), In re J.F.C., 96 S.W.3d at 266. To give

appropriate deference to the factfinder's conclusions and the role of a court conducting a

legal sufficiency review, looking at the evidence in the light most favorable to the judgment

means that a reviewing court must assume the factfinder resolved disputed facts in favor

of its finding if a reasonable factfinder could do so. Id. Thus, we disregard all evidence

that a reasonable factfinder could have disbelieved or found to have been incredible. Id.




                                             25
       The standard for reviewing the factual sufficiency of termination findings is whether

the evidence is such that a reasonable factfinder could form a firm belief or conviction

about the truth of the Department's allegations. In re C.H., 89 S.W.3d at 25-26. Under that

standard, we consider whether the disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable

factfinder could not have credited in favor of the finding is so significant that a factfinder

could not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient. Id. When, as in this case, findings of fact and conclusions of law were not

filed, we must presume that every disputed fact issue was found by the trial court in

support of the judgment rendered. Fields v. Texas Emp. Ins. Ass'n, 565 S.W.2d 327, 329

(Tex.Civ.App.–Amarillo 1978, writ ref'd n.r.e.). Finally, we observe that only one statutory

ground is required to terminate parental rights under § 161.001. See In re S.F., 32 S.W.3d

318, 320 (Tex.App.–San Antonio 2000, no pet.). Therefore, we will affirm the termination

order if there is both legally and factually sufficient evidence on any statutory ground upon

which the trial court relied in terminating. Id.




                                              26
                          Trena’s Claims as to J.O.A. & T.J.A.M.



       Where termination of parental rights is not involved, the balancing of the Eldridge

factors does not warrant a due process review of Trena’s ineffective assistance of counsel

claims. Because the order being appealed does not terminate Trena’s parental rights as

to J.O.A. or T.J.A.M., we find that a review of the court’s order, as it pertains to either

J.O.A. or T.J.A.M., was not preserved for appeal because Trena failed to file a timely

statement of points as required by § 263.405(b). Consequently, point of error three is

overruled as to Trena.



                          Trena’s Claims as to T.J. M. & C.T.M.



       As to the twins, T.J.M. and C.T.M., the record reflects that Trena went on a five hour

cocaine and alcohol binge on July 25, 2005, just hours before they were born. The record

further reflects that Trena had a long history of drug and alcohol abuse. Because T.J.M.

and C.T.M. both tested positive for controlled substances at the time of their birth, we find

that the risk of an erroneous deprivation of Trena’s parental rights is slight from a

sufficiency of the evidence perspective. Therefore, upon balancing the Eldridge factors, we

further find that Trena’s ineffective assistance of counsel claims do not raise a

constitutional due process claim. Accordingly, we find that a review of the court’s order,

                                             27
as it pertains to T.J.M. and C.T.M., was not preserved for appeal because Trena failed to

file a timely statement of points as required by § 263.405(b). Points of error one, two, six,

seven, nine, and ten are overruled as to Trena.



                               Timothy’s Claims as to T.J.A.M.



       Where termination of parental rights is not involved, the balancing of the Eldridge

factors does not warrant a due process review of Timothy’s ineffective assistance of

counsel claims. Because the order being appealed does not terminate Timothy’s parental

rights as to T.J.A.M., we find that a review of the court’s order, as it pertains to T.J.A.M.,

was not preserved for appeal because Timothy failed to file a timely statement of points

as required by § 263.405(b). Consequently, point of error three is overruled as to Timothy.



                           Timothy’s Claims as to T.J. M. & C.T.M.



       The Department alleged, and the court found, that termination of Timothy’s parental

rights as to T.J.M. and C.T.M. was appropriate under two separate grounds: (1) knowingly

placed or knowingly allowed the children to remain in conditions or surroundings which

endanger the physical or emotional well-being of the children;10 and (2) engaged in conduct



       10
            § 161.001(1)(D).

                                             28
or knowingly placed the children with persons who engaged in conduct which endangers

the physical or emotional well-being of the children.11



       T.J.M. and C.T.M. were removed from Timothy at birth. At all times relevant to their

lives, T.J.M. and C.T.M. were in “conditions or surroundings” dictated by the Department,

not Timothy. Therefore, there is no evidence that Timothy knowingly placed or knowingly

allowed T.J.M. or C.T.M. to remain in conditions or surroundings which endangered the

physical or emotional well-being of the children.


       To “endanger” the physical or emotional well-being of a child means “more than a

threat of metaphysical injury or the possible effects of a less-than-ideal family

environment.” Tex. Dep’t. of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)

(citations omitted). However, it is not necessary that the conduct be directed at the child

or that the child actually suffer injury, so long as the conduct exposes the child to loss or

injury. Id. Drug use and its effect on a parent’s life and his ability to parent may establish

an endangering course of conduct. In re A.J.H., 205 S.W.3d 79, 81 (Tex.App.–Fort Worth

2006, no pet.).


       While there was evidence calling into question Timothy’s parenting skills, Timothy’s

parenting abilities significantly improved following the Department’s involvement in the lives

of his children. Evidence supported Timothy’s efforts to clean up his life. Timothy


       11
            § 161.001(1)(E).

                                             29
demonstrated a willingness to continue counseling and he established a support system

through his church and his family. He secured suitable housing and employment. He

exercised regular visitation, attended parenting classes, and demonstrated a pattern of

being drug-free. While Timothy was hardly the ideal father, based upon this record, we

cannot say that a reasonable and rational factfinder could have formed a firm belief or

conviction that Timothy engaged in conduct which exposed T.J.M. or C.T.M. to loss or

injury and jeopardized the children’s emotional and physical well-being because there is

insufficient evidence of Timothy’s continued drug use, subsequent incarceration, or other

anti-social behavior.   Therefore, we find that the evidence is legally and factually

insufficient to support the predicate finding of conduct endangering the children. Having

found insufficient evidence of conduct endangering the children, we need not address the

second predicate, the best interest of the children.        Accordingly, we find that the

termination of Timothy’s parental rights as to T.J.M. and C.T.M. is not supported by the

evidence.


       Having found that the risk of an erroneous deprivation of Timothy’s parental rights

as to T.J.M. and C.T.M. is high from a sufficiency of the evidence perspective, upon

balancing the Eldridge factors, we further find that Timothy’s ineffective assistance of

counsel claims do raise a constitutional due process claim. To the extent that § 263.405(i)

prevents this Court from considering those claims, we find it to be unconstitutional as

applied to the facts of this case. In re S.K.A., 236 S.W.3d at 894. Points of error one, two,



                                             30
four, five, eight, nine, and ten regarding termination of Timothy’s parental rights to T.J.M.

and C.T.M are sustained.


                                        Conclusion


       Accordingly, we affirm that portion of the trial court’s order terminating the parental

rights, if any, of any alleged or unknown father as to J.O.A.; affirm that portion of the order

appointing the maternal grandmother as J.O.A.’s managing conservator; affirm that portion

of the order appointing the maternal grandmother as T.J.A.M.’s managing conservator;

affirm that portion of the order terminating the parental rights of Trena to the twins, T.J.M.

and C.T.M.; and reverse that portion of the trial court’s order terminating the parental rights

of Timothy to the twins, T.J.M. and C.T.M., and remand this cause to the trial court for

further proceedings consistent with this opinion. In reaching this decision, the Court makes

no judgment whatsoever as to whether it is in the best interest of T.J.M. and C.T.M. to be

physically placed with Timothy. The decision to allow T.J.M. and C.T.M. to live with

Timothy can, and should, only be made by the trial court based upon the best interest of

T.J.M. and C.T.M. after a review of the facts and circumstances as they exist at the time

of that review.




                                                   Patrick A. Pirtle
                                                     Justice



                                              31
