Opinion filed July 23, 2009

In The

Eleventh Court of Appeals

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No. 11-08-00293-CV

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IN THE INTEREST OF S.N., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 6436-CX

O P I N I O N

This is an accelerated appeal from the trial court’s order terminating appellant’s parental

rights. We affirm.

Background Facts

Appellant is the father of S.N. T.M. is the mother of S.M. and S.N. T.M. and appellant lived

together with S.M. and S.N. In March 2007, S.M. and S.N. were removed from the home. The

Texas Department of Family and Protective Services received information that appellant had hit

S.M. and left bruises on her arms and thighs. The Department also learned that the parents used

drugs in the home and that appellant was abusive to T.M. The Department filed a Petition for

Protection of a Child, for Conservatorship, and for Termination in Suit Affecting Parent-Child

Relationship. Appellant was subsequently charged with injury to a child for hitting S.M. Appellant

pleaded no contest to the charge and was sentenced to fifteen years confinement. At the time of the

termination hearing, appellant was in prison and would be eligible for parole in February 2009. In
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its petition, the Department alleged five acts or omissions as the basis for terminating appellant’s

parental rights to S.N. It alleged that he:

13.1 knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the

child;

13.2 engaged in conduct or knowingly placed the child with persons who engaged

in conduct which endangers the physical or emotional well-being of the child;

13.3 knowingly engaged in criminal conduct that has resulted in the parent’s:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child

for not less than two years from the date of filing of the petition;

13.4 been convicted or has been placed on community supervision, including

deferred adjudication community supervision, for being criminally

responsible for the death or serious injury of a child under the following

sections of the Penal Code or adjudicated under Title 3 for conduct that

caused the death or serious injury of a child and that would constitute a

violation of one of the following Penal Code sections:

§ 22.04 (injury to a child, elderly individual, or disabled individual)

13.5 failed to comply with the provisions of a court order that specifically

established the actions necessary for the father to obtain the return of the

child who [has] been in the permanent or temporary managing

conservatorship of the Department of Family and Protective Services for not

less than nine months as a result of the child’s removal from the parent under

Chapter 262 for the abuse or neglect of the child.

The trial court received evidence pertaining to the termination at a bench trial. At the conclusion of

the trial, the court found that appellant had engaged in criminal conduct that resulted in his

confinement and inability to care for his child for not less than two years and that he had been

convicted of injury to a child. The trial court also found that termination was in S.N.’s best interest.

The written termination order was filed on October 6, 2008. On October 14, 2008, appellant filed

a notice of appeal and statement of points on which he intended to appeal. He identified the

following complaints in his statement of points on appeal: 

1. Texas Family Code 263.405(b) is unconstitutional and violates [appellant’s]

rights to due process and equal protection under Article [I], § 12 of the
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Constitution of the State of Texas and the 5 and 14 Amendments to the th th

United States Constitution. 

2. Texas Family Code 263.405(i) is unconstitutional and violates [appellant’s]

rights to due process and equal protection under Article [I], § 12 of the

Constitution of the State of Texas and the 5 and 14 Amendments to the th th

United States Constitution. 

3. The evidence adduced at trial (or any prior hearing) was both legally and

factually insufficient to establish by clear and convincing evidence that the

termination of [appellant’s] parental rights was in the best interest of the

children as set forth in paragraph 7.1 of the Termination Order. 

4. The evidence adduced at trial (or any prior hearing) was both legally and

factually insufficient to establish by clear and convincing evidence that

[appellant] has been convicted for being criminally responsible for the injury

of a child constituting a violation of § 22.04 of the Texas Penal Code as set

forth in paragraph 7.2.1 of the termination order. 

5. The evidence adduced at trial (or any prior hearing) was both legally and

factually insufficient to establish by clear and convincing evidence

[appellant] knowingly engaged in criminal conduct that resulted in the

conviction of an offense and confinement or imprisonment and inability to

care for the child for not less than two years from the date of filing the

petition as set forth in paragraph 7.2.2 of the termination order.

The trial court held a hearing to determine if any of appellant’s points were frivolous and found that

Points One and Two were not frivolous and that Points Three, Four, and Five were frivolous.

Appellant does not challenge this finding. 

Issues on Appeal

Appellant raises three issues on appeal. First, he argues that TEX. FAM. CODE ANN.

§ 263.405(b) (Vernon 2008) is unconstitutional because it deprives indigent parents their due process

rights. Next, appellant argues that TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008) is

unconstitutional because it violates the doctrine of separation of powers. Finally, he asserts that

Section 263.405(i) is unconstitutional because it deprives indigent parents of their due process rights.

Standard of Review

A party may challenge a statute as being unconstitutional on its face or as applied to that

party. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995); City of
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Corpus Christi v. Pub. Util. Comm’n of Tex., 51 S.W.3d 231, 240-41 (Tex. 2001). It is unclear

whether appellant is attacking the constitutionality of TEX. FAM. CODE ANN. § 263.405 (Vernon

2008) on its face or as it is applied to him; therefore, we will discuss both a facial challenge and an

as-applied challenge. To sustain a facial challenge, the partymust show that the statute, by its terms,

always operates unconstitutionally. Garcia, 893 S.W.2d at 518. To sustain an as-applied challenge,

the party must show that the statute is unconstitutional when applied to that particular person or set

of facts. Id. In determining if due process is accorded a parent in a termination proceeding we

consider the following: (1) the private interest affected by the proceeding or official action; (2) the

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

risk of an erroneous deprivation of that private interest due to the procedures used. Mathews v.

Eldridge, 424 U.S. 319, 335 (1976).

Facial Challenge to Section 263.405(b) and (i)

A parent appealing the termination of his or her parental rights has a right to a meaningful

appeal. In re M.S., 115 S.W.3d 534 (Tex. 2003). The legislature has adopted a process to appeal

termination orders. That process includes the appointment of counsel for indigent parents. See

Section 263.405(e). Included in that process are certain procedural requirements and limitations

not present in ordinary civil appeals. For example, a statement of points on which a party intends

to appeal must be presented to the trial court within fifteen days after the signing of the termination

order. Section 263.405(b). An appellate court may not consider any issue that was not specifically

presented to the trial court in a timely filed statement of points on which the party intends to appeal.

Section 263.405(i) (“a claim that a judicial decision is contrary to the evidence or that the evidence

is factually or legally insufficient” does not preserve an issue for appeal). A statement of points is

specific enough when it allows the trial court to correct any erroneous findings on the challenged

grounds. Adams v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 278 (Tex.

App.—Houston [1st Dist.] 2007, no pet.); In re A.J.H., 205 S.W.3d 79, 81 (Tex. App.—Fort Worth

2006, no pet.). 

 If an indigent parent timely files a statement of points on which the parent intends to appeal,

the trial court must hold a hearing within thirty days after the termination order is signed to

determine (1) whether a new trial should be granted, (2) whether the parent’s claim of indigence
TEX. R. CIV. P. 5 provides: 1

When by these rule or by a notice given thereunder or by order of court an act is required or allowed

to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) with or

without motion or notice, order the period enlarged if application therefore is made before the expiration of the

period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after

the expiration of the specified period where good cause is shown for the failure to act. 

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should be sustained, and (3) whether the appeal isfrivolous as provided by TEX.CIV. PRAC.&REM.

CODE ANN. § 13.003 (Vernon 2002). Section 263.405(d). If the trial court determines that the

appeal is frivolous, the indigent parent is not entitled to obtain a free record on appeal.

Section 13.003(a). 

The legislature has mandated these procedures in an effort to decrease postjudgment delays

in termination cases when the children are under the Department’s care. In re M.N., 262 S.W.3d

799, 803 (Tex. 2008). However, the supreme court has stated that the legislative intent was not to

unfairly or unreasonably preclude parents from appealing final orders and that the legislature adopted

the provisions of Section 263.405 in light of the civil and appellate rules of procedure. Id.

Consequently, parents may ask for an extension of time to file the statement of points pursuant to

TEX. R. CIV. P. 5. In re M.N., 262 S.W.3d at 803. Further, if the trial court finds that the appeal is 1

frivolous , the indigent parent may appeal this determination and is entitled to obtain a free record

of that hearing for appeal purposes. Section 263.405(g). 

In light of these procedural safeguards, appellant has not demonstrated how the statute always

causes an erroneous deprivation of parental rights. If counsel needs a reporter’s record to prepare

a statement of points, the trial court has the authority to extend the Section 263.405(b) fifteen-day

deadline. The statute, therefore, does not deprive an indigent parent the ability to prosecute a

meaningful appeal. Section 263.405(b) and (i) is not unconstitutional on its face. 

As-Applied Challenge to Section 263.405(b) and (i)

In this case, the trial court held three hearings in which appellant did not have appointed

counsel. But, the trial court appointed appellant an attorney over eight months prior to the final

hearing on the issue of termination of his rights. Appellant’s appointed counsel remained his

attorney throughout the period immediately following the entry of termination, and he remains his

attorney on appeal. Appellant filed a timely statement of points, and the trial court held a hearing

to determine if appellant’s statement of points on that he intended to appeal contained points that
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were frivolous. The trial court found that appellant’s legal and factual sufficiency points were

frivolous. 

Appellant argues that his due process rights were violated because he was required to file a

statement of points that he intended to appeal before the preparation of the reporter’s record.

Appellant argues that, without a complete reporter’s record, he was unable to raise errors that might

have occurred prior to his attorney’s appointment. We disagree. Counsel did not ask for an

extension of time to file the statement of points in order to obtain the reporter’s record. Further,

counsel had time to discuss the points presented at the previous hearings with appellant, T.M.’s

attorney, and the children’s attorney ad litem. Counsel also had access to the clerk’s file to review

the petition, the service plan, and the progress reports that described the events leading up to the

removal of the children and the decision to proceed with termination. Moreover, appellant does not

identify any alleged errors that occurred prior to the appointment of his counsel that he was

prevented from raising.

Appellant also argues that his due process rights were violated because he was prevented

from raising a legal and factual sufficiency of the evidence challenge. Appellant did not appeal the

trial court’s finding that his legal and factual sufficiency points were frivolous. Further, on appeal,

appellant attacks the trial court’s determination that he failed to complywith the family service plan.

The trial court did not terminate his parental rights based on his failure to comply with the family

service plan. The trial court found by clear and convincing evidence that appellant had engaged in

criminal conduct that resulted in his confinement and inability to care for his child for not less than

two years and that he had been convicted of injury to a child. Appellant does not challenge these

findings on appeal. Consequently, he has not presented a valid challenge to the sufficiency of the

evidence for the trial court’s termination order. Because appellant did not avail himself of the

procedural safeguards in the statute and did not identify any meritorious claims, we hold that

Section 263.405(b) and (i) do not operate to violate appellant’s due process rights. We overrule

appellant’s first and third issues. 

Section 263.405(i) Violates Separation of Powers

Appellant next argues that Section 263.405(i) is unconstitutional because it violates the

separation of powers doctrine as set forth in Article II, section 1 of the Texas Constitution.
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Appellant argues that Section 263.405(i) prevents him from raising a legal and factual sufficiency

of the evidence challenge. Because appellant did not list this issue in his statement of points on

which he intends to appeal, he has waived this issue on appeal. Furthermore, as stated above,

appellant has not presented a valid challenge to the sufficiency of the evidence that the statute

prevented him from presenting and precluded this court from considering. We overrule appellant’s

second issue on appeal. 

Conclusion

We affirm the judgment of the trial court. 

RICK STRANGE

JUSTICE

July 23, 2009

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.