1 John T. Boyd, C hief Jus tic e (Ret.), S eventh Cour t of Appeals, sit

ting by assignment. NO. 07-05-0424-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E JUNE 9, 2006

______________________________ IN THE INTEREST OF R.M. AND J.M., CHILDREN,

_________________________________ FROM THE 237 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2005-531,942; HONORABLE KEV IN HART, JU DGE

_______________________________ Before QUINN, C.J., and HANCOCK, J., and BO YD, S.J. 1
MEMORA NDUM OPIN ION Appellant, Virgini a Marlene Ca stle, appeals from an order terminating her parental rights toher childr

en. We affirm the trial court.
Factual and Pr

ocedural Backg round Appellee, the Texas Depa rtment of Protecti ve and Regulat ory Serv ices (Department), first had contact with Vi rginia M arlene Castle in 2 001, when the D epartment filed an original suitaffecting the paren t-child relationship in the District Court of Hockley2

Coun ty. In the ensuing years, C astle’s chi ldren, R.M . and J.M., w ere in an d out of the temporary care of the Department. O n August 24, 2005 , the Department filed an Orig inal Petition for Protection of a Child, for C onservator ship, and for Termination in Suit Affecting the Parent-Child Relationship in the 237th District Court of Lubbock County . On th e same day, the trial court removed the children from C astle’s car e by order

of protection. At the adversari al hearing on t he order of protection, t he Department was once again appointed temporary managing conservator

. A jury trial was scheduled for October 24, 2005. On the morning of the jury trial, Cas tle executed an affidavit of voluntary r elinquishment

of her parental rights. The order termi nating the parental r ights of Cast le wasente red t hat d ay. Two days later, Castle filed a motion for new trial all eging her

affidavit was executed un der duress. On November 21, 2005, the tri al court enter ed an order den ying the mot ion for
new trial and deeming Castle’s appeal f rivolous. It is from thi s ruling thatCastle appeals. By four issues, Castle contends th at the trial court committed reversible er ror. First, Castle contends that the trial court erred in deny ing her moti on for new tr ial and finding that her appeal was frivolous. Second, Castl e contends that the trial cour t erred in den ying her motion to dismiss. Third, Castle contends th at her substantive due proce s s rights were violated by the Depar

tment. Finall y, Castl e con tends tha t the affidavit of r elinquishment was not ex

ecuted voluntarily.
Frivol ous Appeal
In her first i ssue, Castleargues that the trial court erred i n denying he r m otion for
new trial and i n determining that her appeal was frivolous. The tri al court c onduc ted a2 Future cita tions to the Texas Family Code wil l be by “ Family C ode § ___.” 3 hearing pursuant to Texas Famil y Code § 263.405 and deemed that C astle’s appeal was frivolous, as provi ded by TexasCivil Practice and Remedies Code § 1 3.003(b). T EX . F AM . C ODE A NN . § 263.405 (Vernon 20 05) 2 and T EX . C IV . P RAC
. & R EM . C ODE A NN . § 13.003(b) (Vernon 2005). An appellate cour t review s a trial court’s finding that an appeal is frivolous under an abuse of

discretion standard. De La Vega v. Taco Cabana, Inc. , 974 S.W.2d 152, 154 (Tex.App.–S an Antonio 1998, nopet.). Likewise, the decision w hether to grant
a motion for new trial is reviewed for an abuse of discretion. See Simon v. York Crane & Riggi ng Co., Inc ., 739 S.W.2d 793, 795 (Tex. 1987) ; Strackbein v . Prewit t , 671 S.W.2d 37, 38 (Tex.1984). A contention on ap peal “is frivolous when itlacks an arguable basis either in law or fact.” Neitz ke v. Williams , 490 U.S. 319, 325, 109S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); De La Vega , 974 S.W.2d at 154. According ly, a friv olous appellate contention will not support the granting of a new trial.
Castle’s sole contenti on in her motion for new tri al was tha tshe signed the voluntary relinquishment under duress. By extrapolation, we take that to mean that C astle did not voluntarily

sign the rel inquishment, rather her s ignature w as obtained by

some external force that overcame her indiv idual wi ll. See generally Tower Contr acting Co. v. Burden Bros, Inc. , 482 S.W.2d 330, 335 (Tex.Civ .App.–Dallas 1972, wri t ref’d n. r.e.)( discussing what constitutes duress). Castle testified that, while she was waiting in a witness room near the courtroom w here her jur y trial was sched uled, she ov erheard her attorneys tal king to the attorney r

epresenting the Department. Castle testified that she hea rd the Department’s attorney say that “ I either si gn the papers or they’r e going tosend me to jail.” Castle further3 The trial cour t further found that C astle had produced no evidence at the motion f or new tri al hearing that was new ly discovered and on t hat basis alone relief should be denied. 4 testified that, prior

to hearing that statement, she had never considered s igning an affidavit of relinqui shment. The Dep a rtment’s attor ney testified about the circ umstances that le d to his conve rsation w ith Castle’s attorneys o utside the witness room. He testified that the re was testimony at the adversa rial hear ing which he felt obligated to pass along to the criminal divisi on of the Criminal Distric t Attorney’ s office. The discussion that he had w ith Castle’s atto rney s was to a dvise them th at he had done so. H e denied ever having threatened Castle, dir ectly or indirectl y, to gai n her signa ture on t he affidav it of relinqui shment. At the conclusion of the hearing, the trial court found that there was no evidence that

anyone had exerted any undueinfluence over Castle.
The trial courtwas the fact finder regarding the circumstance s surrounding Castle’s decision to sign the relinq uishment. The fact finder is the sole judge of the credibil ity of the witnesses

and the wei ght to be gi ven their testimony. Leyva v. Pach eco , 163 Tex. 638, 358 S.W.2d 547, 54 9 ( 196 2). T he f act f inde r may b elie ve one witne ss an d dis beli eve another. McGalliar

d v. Kuhlmann , 722 S.W.2d 694, 697 (Tex. 1986). The fact finde r resolvesinconsistenc ies in testi mony. Id . Where enough evidence i s before the fact finder thatreasonable minds

could differ on the meani ng of the evi dence, or the i nferences and conclusionsto be drawn from t he evidence, we may not substitute our

judgment for that of the fact finder. Herbert v. Herbert , 754 S.W.2d 141, 144 (Tex. 1988).
Based on the record before this cour t, we cannot

say that th e trial cour

t abused its discre tion in denying Castle’s motion for new t rial 3 or finding that Castle’s appeal wa s4 The legisla ture amended Famil y Code § 263.401 to limi t the 180 day ex tension of the dismissal deadline for a sui t affecting the par ent-child r

elationship when th e child is under the temporar

y conservatorship of the Departm ent to cases in which the trial court finds “extraor

dinary ci rcumstances” necessitating that the chi ld remain in the temporary conservatorship of the Department. Amended by Acts 2005, 79th Leg., R.S., ch. 268, § 1.40, 2005 Tex. Gen . Laws 636. 5 frivolous. S imon , 739 S.W .2d at 795 (Tex. 1987); De La Vega , 974 S.W.2d at 154. Accordingl y, Castl e’s first i ssue is overruled.
Motion to Dismiss By her second is sue, Castle contends that the D epartment’s fili ng of the August 24, 2005 pe titio n to terminate her parental ri ghts, after hav ing prev iously non -suited a termination action filed i n 2004, viol ated the legi slative inte nt of th e 2005 amendment of FamilyCode § 263.401 and, t heref ore, th e case must be di smissed. 4 Under Castle’s theory, the trial cour

t committed reversible er ror when it denied her mot ion to dismis s.
In essence, C astle co ntends that, becaus e the dismissal of the prior su it was mandated by Family

Code § 263.401, the trial cour t had no jurisdict ion to hear the 2 005 suit. A challeng e to the juri sdiction, bas ed upon the pleading s, is rev iewed de novo. State Dep’t of Hi ghways a nd Pu blic T rans p. v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2001 ). When considering a jurisdi ctiona l claim, the court may only consider the plaintiff ’s pl eading s and the evide nce pertinent to the jurisdi ctional inq uiry. Coun ty ofCame ron v. Brown , 80 S.W .3d 549, 555 (Tex. 2002 ). Wh en considering a trial court’s order on a plea to the jurisdi ction, we construe the pleadings i n the plaintiff’s favor and look to the pleader’s intent. Id

.5 Further, had the legisl ature i ntende d to prohibit or limit theDepartment’s refiling

of a case after n on-suit or e ven involuntar y dismiss al, it could have done so. See In re L.J.S. , 96 S.W .3d at 695-96 (Johnson, C.J., concurring). 6 Castle posits that the 2005 amendment to Family C ode § 263.401 dictates that the Department

may not n on-suit its 2004 petit ion and, subseq uently, filea new petit ion seeking temporary managing conv servator ship and termina tion of her parental rights. She conten d s that the new amendment was in tended to over rule this court’s opini on in In re L.J.S.

. See In re L.J.S. , 96 S.W.3d 692 (Tex.App.–Amaril lo 2003, no pet.). Castle makes
a blanket asser

tion that to allow

repeated filing s to conveni ence the Department fliesin the face of the legislature an d renders Family Code § 263.401 me aningless. However, the plain lang uage of Family Code § 263.401, asamended, has no effect on the Department’ s right to re-file sui t after non-suit

. Further, our opinion in In re L.J.S. noted that, under the pr e-amendment

version of FamilyCode § 263.401, autho rity ex isted to allow t he Department to r einitiate previous ly filed proceedings so long as new facts were alleged justifyin g the reli ef requested, even if the relief reque s ted was the same in both suits. In re L.J.S. , 96 S.W.3d at 694. 5 We must presume that, since the 2 005 amendment did not specifical ly addres s the Department’ s right to re-file sui t after non-suit , the legislature did not intend to change the ex isting l aw artic ulated in In re L.J.S. See Acer v. Texas W ater Comm’n , 790 S.W .2d 299, 301 (Tex. 1990 ) (“A statute is pr

esumed to ha ve been enacted by th e legisl ature wit h complete know ledge o f t he existi ng law and with reference to it.”). As such, w e conclude that t he Depar tment m ay reinitiate a previously7

dismissed suit affecting the paren t-child relationshi p provided that the new suit alleg es new facts justifyi ng the reli ef requested.
Castle asserts that

the Department fail ed to identify new facts to support its re-filed August 24, 2 005 s uit and, as s uch, thi s su it w as s impl y a cont inua tion of the 2004 su it. However, Castle has ne ither presented argument nor authority in support of her assertion. The Departm ent con tends t hat its A ugust 24 , 2005 p etition allege d new fact s to support suit. Castle presents no arg ument thatthese alleg ations wer e not truly

new or tha t they
were insufficient to i ndependently w arrant the re lief requeste d by the Department. Therefore, we conclude that the Department ’s pleadings and that portion of the record necessary to determine the jurisdict ion of the court s upport the tri al court’s exercis e of its jurisdict ion. County of Camer on , 80 S.W.3d at

555. Th er efore, Castle’s second issue is overrule d.
Due Process By her third issue, Castle contends that he r substantive due process rights were violated when the De partment non-sui ted the 2004 petiti on and re-filed a petition to terminate her parental rights. To support this position, Castle cites the cou rt to the clerk’s record. A revi ew of that rec ord reveal s that the numerouscitations to the continu ing scheme of the Departmen t a re citations to Castle’s

motion to dismi ss. Now here in the record are the historical documents n ecessary to prove the allegation, such as prev ious petitions.6 F amily Code § 263.405(b) impos es the requi rement that a part y intending to a pp eal file a statement of poi nts withi n 15 days of the s igning of the final order bei ng appealed. 8 The Department

posits that

Castle’s contention should not be considered because she has failed to preserve the record. However, this positi on is wi thout any refer ence to how or under w hatstatute Castl e failed to preser ve the appell ate point. The Depar tment contends that Family

Code § 263.40 5 6 required Castle to filea statement of points to pres erve an issue for appeal . While the cited secti on spea ks in termsof preservat ion, the balance of ca se law has held filing a statement of points i s neither jurisdictional nor an additional requiremen t to pr eserve er ror. See In re S.P. , 168 S.W.3d 197, 201 (Tex.App.–Dal las 2005, no pet. h.); In re W.J.H

. , 11 1 S.W .3d 707, 712 (Tex.App. –Fort Worth 2003, pet. denied).
Whereas Castle’s failure to incl ud e this issue in a ti mely filed statement of points does not p reclude this court from entertaining the contentions of Castle reg arding due process, both the United States an d Texas Supreme Courts have consisten tly held th at
even a claim of consti tutional err or may be w

aived by a party ’s failure to preserve the issue. Webb v. Webb , 451 U.S. 493, 495 , 101 S.Ct. 1889, 68 L.Ed.2d 392 ( 1981); In re L.M.I. , 119 S.W.3d 707, 710-11 (Tex. 2003) (referencing Texas Rule of Appe llate Procedure 33.1).
W it hin th is framewor k, a revi ew of the recor d revealsthat Castle n ever all eged, either in the motion to dismiss, the m otion for new trial or during the act ual trial, tha t the actions of the Department v iolated her s ubstantive d ue process r ights und er e ither the United Stat es or

Tex as c onst itut ions . Ca stl e’s fail ure to ad vi se t he tr ial cour t of th e9

perc eived error is

fatal to her cl aim. Id . For these r easons, Castl e’s th ird issue i s overrule d.
Affidavit of Reli nquishment
Castle’s fourth issue con tends that the tr ial court e rred when it found that the affidavit of relinquishment was executed voluntaril y. H aving determined, in conn ection wi th Castle’s fir

st issue, that

the affidavit was not executed as a result of duress, we overrule Castle’s four

th issue.
Conclusion
Inasmuch as all of Cast le’s issue s are over ruled, we affirm the judgment of the trial court terminating Castle’s parental rights to R.M. and J.M.

Mackey K. Hancock Justice