

 

 
NUMBER 13-09-00656-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
______________________________________________________________________

IN THE INTEREST OF
M.W., L.W, J.W., H.W., I.W., Mi.W., 
MINOR CHILDREN

 
On appeal from County Court at Law No. 5
of Nueces County, Texas
______________________________________________________________________
OPINION
Before Justices Garza, Vela, and Perkes
Opinion by Justice Perkes
 
        This is a parental termination case. 
After a jury trial, appellant mother’s parental rights to her six children, M.W.,
L.W., J.W., H.W., I.W., and Mi.W.[1]
were terminated pursuant to Texas Family Code sections 161.001(1)(D) and (E) as
to all of the children and Texas Family Code section 161.001(1)(N) as to M.W.,
L.W. and J.W.  See Tex. Fam. Code
Ann. §161.001(1)(D), (E), (N) (West 2008).  The trial court also found
that termination was in the children’s best interest.  See id. §161.001(2)
(West 2008).  By four issues, appellant challenges the legal and factual sufficiency
of the evidence to support the jury’s findings that:  (1) appellant knowingly
placed or knowingly allowed the children to remain in conditions or
surroundings which endangered the physical or emotional well-being of the
children; (2) appellant engaged in conduct or knowingly placed the children
with persons who engaged in conduct which endangered the physical or emotional
well-being of the children; (3) appellant constructively abandoned M.W., L.W.
and J.W. after they were placed in managing conservatorship with the Department
of Family and Protective Services (the “Department”); and (4) the termination
of the parent-child relationship is in the best interest of the children. 
Appellant failed to file a statement of points for review on appeal.  We affirm.[2]
I.  Background
The Department sought to terminate appellant’s parent-child relationship with the children. A complete record has been filed for
review on appeal.  During the trial, overwhelming
evidence was presented to show appellant subjected her children to a
home environment where violence and threats of violence were common.  The record is replete with evidence
of incidents of ongoing physical and emotional abuse by the father and by
complicity, appellant.  The
record further shows that, after the children’s removal, appellant was court-ordered
to attend individual counseling, anger management classes, psychological
evaluation, and parenting classes.  The Department reported appellant did not
make progress and did not accept responsibility for her actions.  Based upon
the jury’s findings, the court entered a decree of termination that contained
the following findings:  
6.1 The court finds by clear and convincing evidence
that the termination of the parent child relationship between [appellant] and M.W.,
L.W., J.W., H.W., I.W., Mi.W., is in the children’s best interest.
 
6.2 The court further finds by clear and convincing
evidence that [appellant], mother of the children, M.W., L.W., J.W., H.W.,
I.W., Mi.W. has:  
 
6.2.1 has [sic] knowingly placed or knowingly allowed
the children to remain in conditions or surroundings which endanger the
physical or emotional well-being of the children as provided by Chapter
161.001(d), Texas Family Code;  
 
6.2.2 has [sic] engaged in conduct or knowingly placed
the children with persons who engaged in conduct which endangers the physical
or emotional well-being of the children as provided by Chapter 161.001(e),
Texas Family Code.
 
7.1 The court finds by clear and convincing evidence
that the termination of the parent child relationship between [appellant] and
the children, M.W., L.W., and J.W., is in the children’s best interest.
 
7.2 Further, the court further [sic] finds by clear
and convincing evidence that [appellant], mother of the children, M.W., L.W., and
J.W. has:  
 
7.2.1   has [sic] constructively abandoned the child
who has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services or an authorized agency for not
less than six months, and     
 
(i)           
the department or authorized
agency had made reasonable efforts to return the child to the parent;
 
(ii)         
the parent has not regularly
visited or maintained significant contact with the child; and
 
(iii)        
the parent has demonstrated an
inability to provide the child with a safe environment as provided by chapter
161.001(n), Texas Family Code.
On October 26, 2009, the trial court signed the decree
of termination. The deadline for filing a motion for new trial and statement of
points was November 10, 2009.  Tex. Fam.
Code Ann. § 263.405(b)
(West 2008).  On November 18, 2009, appellant filed an untimely motion for new
trial,[3]
wherein she solely requested that the trial court “grant movant a new trial in
the interest of fairness and justice . . . .”  On November 20, 2009, appellant
filed an amended motion for new trial.[4] 
Appellant’s amended motion asserts that “good cause exists for vacating the
decree of termination of parental rights in that said order is not in the best
interests of the minor child.”  Appellant did not file a statement of points,
and appellant did not request an extension of time to file a statement of
points.  No order was entered regarding the motion for new trial. This appeal
followed.  
II.  Appellate Review of Termination Orders
Section 263.405 of the Texas Family
Code governs appeals
from final orders rendered in parental rights
termination suits.  See id.  Section 263.405(b) requires the
party to request a new trial and/or to file a statement of the point or points
on which the party intends to appeal not later than the fifteenth day after the
date the final order is signed.  Id. § 263.405(b)(1)-(2).  Section
263.405(i) states that “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."  Id. § 263.405(i); see In re J.H.G.,
302 S.W.3d 304, 306 (Tex. 2010) (per curiam).  The statement of appellate
points is crucial.  In re B.G., 317 S.W.3d 250, 252 (Tex. 2010).
            Appellant
did not file a statement of points and none of appellant’s issues on appeal
were included in her late-filed motions for new trial.  Although she could have
filed a motion to seek a fifteen-day extension of time to file a statement of points,
she did not file such a motion.  See In re M.N., 262 S.W.3d 799, 803  (Tex.
2008).  As such, all of appellant’s issues are waived.[5]  In re
J.H.G., 302 S.W.3d 304, 305 (Tex. 2010); In
re P.P.M.I., 318 S.W.3d 905, 905 (Tex. App.—San Antonio 2010, no pet); see also In re M.F., No.
13-10-00248-CV, 2010 Tex. App. LEXIS 9520, at *6-*7
(Tex. App.—Corpus Christi Dec. 2, 2010, no pet.) (mem. op.).
            We
are cognizant that the Supreme Court of Texas has held that an ineffective assistance of counsel claim can be raised
on appeal despite the failure to include it in a statement of points, and that
it has held that section 263.405(i) is unconstitutional as applied when it
precludes a parent from raising a meritorious complaint about the insufficiency
of the evidence supporting the termination order.  In re J.O.A.,
283 S.W.3d 336, 339 (Tex. 2009).  However,
appellant has not challenged the effectiveness of counsel or made any due
process claim, and the record conclusively shows that no meritorious complaint
can be made regarding the legal and factual sufficiency of the evidence to
support the termination order.  
III.  Conclusion
We affirm the trial court’s judgment.
 
                                                                        _______________________________
GREGORY T. PERKES
                                                                                    Justice
 
Delivered
and filed the
16th
day of June, 2011.      
 




[1] The children were six to seventeen years
old at the time of trial. 
We will refer to the children by an alias or their initials.  See Tex. R. App. P. 9.8(b); Tex. Fam. Code Ann. §109.002(d) (West
2008).
    


[2] The trial court also terminated the parent-child
relationship between the children and their father.  Although the father filed
a notice of appeal, he later voluntarily dismissed that appeal.  In re M.W.,
et al., No. 13-10-00257-CV,
2010 Tex. App. LEXIS 4006 (Tex. App.—Corpus Christi May 27, 2010, no pet.) (mem
op.) (per curiam).


 
            [3]  A statement of points may be
combined with a motion for new trial.  Tex.
Fam. Code Ann. §263.405(b-1) (West 2008).
 


            [4] On December 16, 2009, appellant’s counsel filed an affidavit with
the trial court stating she received actual notice of
the Decree of Termination on
November 19, 2009, when she received the Department’s “Objections to Respondent’s Motion for New Trial.”  The
record is silent regarding the date appellant received notice of the order, and
the record includes a motion for new trial filed prior to that date.  Moreover,
appellant did not file any motion to extend the post-judgment deadlines. 
Therefore, we are bound by the regular deadlines for accelerated appeals.  Tex. R. Civ. P. 306a; see In re J.D.O., No. 07-10-0370-CV, 2010 Tex. App. LEXIS 9625, at *5
(Tex. App. -- Amarillo Dec. 6, 2010,
no pet.) (mem. op).    
 


[5] This approach is in line with other appellate courts which have
considered this issue.  See In re E.E.G., No. 12-09-00332-CV,
2010 Tex. App. LEXIS 7185, at *1-*2 (Tex. App. – Tyler Sept. 1, 2010, no pet.);
In re K.W., No. 06-09-00059-CV, 2010 Tex. App. LEXIS 25, at *2-*4 (Tex.
App.—Texarkana Jan. 5, 2010, no pet.); In re
N.J.N., No.
07-09-0216-CV, 2009 Tex. App. LEXIS 8281, at
*1-*2 (Tex. App.—Amarillo Oct. 28,
2009, no pet.); In re D.A.M., 10-09-000075-CV, 2009 Tex. App. LEXIS 7896, at *2-*4 (Tex. App.—Waco Oct. 7, 2009, no pet.); Robinson v. Tex.
Dep’t of Fam. & Protective Svcs., No. 01-08-00479-CV, 2009 Tex. App.
LEXIS 4492, at *6-*7 (Tex. App.—Houston [1st Dist.] May 18, 2009, no pet.). 
 
 


