In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-11-00014-CV

______________________________

IN THE INTEREST OF S.K.S., A CHILD

 

On Appeal from the 76th Judicial District Court

Titus County, Texas

Trial Court No. 34,830

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss
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MEMORANDUM OPINION

After a long history of drug abuse by Jerry and Christy Smith and the incarceration of both, 

their parental rights to S.K.S. were terminated. The Smiths appeal, urging three appellate issues. 

We affirm the judgment of the trial court, because—although (1) a statement of points on appeal 

was adequately filed—(2) no due-process-deprivation error was preserved for appellate review 

and (3) the evidentiary sufficiency issues on appeal were not in the statement of points.

Jerry is incarcerated. S.K.S. was removed from Christy’s possession when she reported to 

a battered women’s shelter. At the time of the termination, both Jerry and Christy were in jail. 

In addition to the drug abuse by both parents, the record shows that Jerry beat Christy severely on 

several occasions, but that she kept coming back to him. Ultimately, Jerry and Christy ran away 

with S.K.S. when Jerry learned he was about to be arrested.

The order of termination was signed January 31, 2011. A premature notice of appeal was 

filed by the Smiths, pro se, January 25, 2011. A notice of accelerated appeal was filed by 

appointed counsel February 10, 2011. That notice contains a ―statement of points on appeal.‖ 

Those points read as follows.

Point 1: Respondents’ constitutional rights to rear their child free from 

interference by the government has been violated by the trial court’s failure to 

apply the due process standards set by the United States and Texas Constitutions 

and by the Texas Legislature in Chapter 263 of the Texas Family Code.
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Point 2: The evidence presented at final hearing of this matter is legally 

insufficient to support the Court’s ruling terminating the natural parents’ parental 

rights is in the best interests of the child.

Point 3: The evidence presented at final hearing of this matter is factually 

insufficient to support the Court’s ruling terminating the natural parents’ parental 

rights is in the best interests of the child.

(1) A Statement of Points on Appeal Was Adequately Filed

As a threshold matter, the State argues that the Smiths did not properly present a statement 

of points to the Court and therefore must fail in their appeal. Section 263.405 of the Texas Family 

Code contains the requirements for statements of points. The first argument made by the State is 

that the points were not properly presented because they were part of a notice of appeal, rather than 

either being presented separately or as part of a motion for new trial.

―[A] party who intends to . . . appeal . . . must file with the trial court . . . a statement of the 

point or points on which the party intends to appeal.‖ TEX. FAM. CODE ANN. § 263.405(b) (West 

2008). The statute specifically allows the statement to be combined with a motion for new trial.

We do not read that section as restrictively as the State. The State argues that points are 

adequately presented only if filed in a separate statement of points or as part of a motion for new 

trial. In this instance, the statement of points (although separately labeled) was contained within 

the notice of appeal, and that document was timely filed as a statement of points. Further, the 

language of the order granting appointed counsel makes it clear that the document was recognized 
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by the trial court, as the order refers to the notice of appeal and the statement of points on appeal set 

forth therein.

We find this to be sufficient to meet the requirements of the statute. We do not read the 

statute as providing only particular formats in which the statement of points may be presented to 

the Court, although sufficient clarity to identify the points would certainly be necessary. Such 

exists in this case, and its presentation to the Court within the Smiths’ notice of appeal is sufficient 

to meet the requirements of the statute.

All three issues presented on appeal complain of failures with regard to the service-plan 

requirements of Sections 263.101 and 263.102 of the Texas Family Code. By contrast, the 

statement of points on appeal never complains of either of those sections or the alleged service 

plan defects.

(2) No Due-Process-Deprivation Error Was Preserved for Appellate Review

The Smiths first assert a due process deprivation in the trial court’s failure to apply due 

process standards set out by the State and Federal Constitutions and by Chapter 263 of the Texas 

Family Code, specifically by not preparing a Family Service Plan for Jerry and by presenting a 

plan for Christy that could not be followed because it required her to appear for examinations, 

counseling, parenting classes, and drug screens that could not take place—because both Jerry and 

Christy were incarcerated.1

 

1The Smiths’ evidentiary sufficiency arguments are largely predicated on the failure of the Department of Family and 

Protective Services (Department) to provide these plans.
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The State contends that we should not address the constitutional issues raised by the Smiths 

because they were inadequately set out in the points2or because they were not raised before the 

trial court. Because we agree with the latter contention, we need not address the former.

On appeal, the Smiths argue that failures with regard to the service plan deny them due 

process. This was never preserved by raising it with the trial court.

Issues raised on appeal are to direct our attention to error in the trial court. See generally 

TEX. R. APP. P. 33.1. Due process and other alleged constitutional violations also must be raised 

in the trial court for them to be preserved for appellate review. In re L.M.I., 119 S.W.3d 707, 

710–11 (Tex. 2003); In re K.A.S., 131 S.W.3d 215, 230–31 (Tex. App.—Fort Worth 2004, pet. 

denied); see also In re B.L.D., 113 S.W.3d 340, 349–55 (Tex. 2003) (discussing preservation of 

error in termination cases). Further, any objection must be made in a timely fashion. TEX. R. 

APP. P. 33.1. In this case, the issue raised here was not even hinted at until, after judgment, a 

statement of points was filed. Also, the complaints regarding the service plan were not mentioned 

until the Smiths filed their appellate brief. That is insufficient to preserve the alleged error for our 

review. See L.M.I., 119 S.W.3d at 710.

 

2The constitutional claim set out in the statement of points was quite general, complaining only generally that the trial 

court failed to apply due process standards set by the State and Federal Constitutions and by Chapter 263 of the Texas 

Family Code. It is difficult to see how that notifies anyone of the Smiths’ intent to complain on appeal about alleged 

failures to comply with the service plan requirements of Sections 263.101–.102 of the Texas Family Code. See TEX.

FAM. CODE ANN. §§ 263.101–.102 (West 2008).
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Generally, our civil rules of procedure and our decisions thereunder require a party 

to apprise a trial court of its error before that error can become the basis for reversal 

of a judgment. 

In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999).

Because the due-process-deprivation issue raised here was not raised with the trial court, it 

was not preserved for our review.

(3) The Evidentiary Sufficiency Issues on Appeal Were Not in the Statement of Points

In their brief, the Smiths complain that the evidence is legally and factually insufficient to 

support termination, because there was no adequate service plan provided by the Department. 

Points 2 and 3 as stated in the statement of points, however, claim evidentiary insufficiency to 

prove that termination was in the best interest of S.K.S., never mentioning the service plan. The 

issues claimed on appeal are not those stated in the statement of points. 

As to these points, we have jurisdiction to address only whether the evidence is sufficient 

to demonstrate that termination is in S.K.S.’s best interest. Even if we read the Smiths’ briefing 

as arguing that, because of failures relative to a service plan, the evidence is insufficient to prove 

best interest, the arguments fail; the alleged failure regarding a service plan does not bear on the 

best-interest issue.
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We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 8, 2011

Date Decided: June 21, 2011