In Re KCB

280 S.W.3d 888, 2009 WL 638187
CourtCourt of Appeals of Texas
DecidedApril 15, 2009
Docket07-07-0032-CV
StatusPublished

This text of 280 S.W.3d 888 (In Re KCB) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re KCB, 280 S.W.3d 888, 2009 WL 638187 (Tex. Ct. App. 2009).

Opinion

280 S.W.3d 888 (2009)

In the Interest of K.C.B., A Child.

No. 07-07-0032-CV.

Court of Appeals of Texas, Amarillo.

March 12, 2009.
Rehearing Overruled April 15, 2009.

*891 James C. Fling, Adkins & Fling, Shamrock, TX, for Appellant.

Trevor A. Woodruff, Office of General Counsel, Texas Department of Protective & Regulatory Services, Austin, TX, for Appellee.

Dale A. Rabe, Bird, Bird & Rabe, Childress, TX, for Ad litem.

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

MACKEY K. HANCOCK, Justice.

This is an accelerated appeal of a trial court's order terminating the parental rights between appellant, A.M.B., and K.C.B., her infant daughter.[1] Appellant sets forth ten issues alleging trial court error that may be grouped as follows: 1) denial of appellant's right to a jury trial; 2) error in using record from the Associate Judge's hearing; 3) admission of evidence regarding meconium drug testing; 4) insufficiency of the evidence to support the allegations under section 161.001(1)(D), (E) and (O) of the Texas Family Code.[2] For the reasons set forth below, we affirm.

Procedural and Factual Background

Appellee, the Texas Department of Protective and Regulatory Services (Department) took custody of K.C.B. on December 9, 2004. On March 21, 2006, Associate Judge Phil N. Vanderpool tried the lawsuit. Judge Vanderpool entered an order of termination of appellant's parental rights on March 31, 2006. On April 3, 2006, appellant filed a Notice of Appeal To Referring Court. Subsequently, on April 19, 2006, appellant filed a Statement of Points Of Error To Be Relied On By Appellant On Appeal. Then on May 2, 2006, a trial de novo was conducted by the referring court. The referring court, the trial court below, signed its Order of Termination on December 18, 2006, and it was filed of record on December 21, 2006. Appellant filed a notice of appeal on January 2, 2007. On January 2, 2007, appellant also filed a Statement of Points Of Error To Be Relied On By Appellant On Appeal.[3] This Court originally ruled in an opinion dated October 11, 2007, that appellant's issues on appeal had not been preserved for appeal. Subsequently, a motion for rehearing was filed alleging that the Statement of Points For Appeal had been timely filed with the trial court. This motion was overruled by the Court. Appellant filed a petition for review by the Texas Supreme Court, which was granted. Thereafter, the Texas Supreme Court reversed this Court and remanded the case for consideration of appellant's points of error.

Statement of Points for Appeal

In the Statement of Points for Appeal filed after the trial court issued its judgment following the trial de novo, appellant alleges the following probable points of appeal:

1) The trial court erred in utilizing the reporter's record from the hearing by the Associate Judge in that said reporter's record was not available for the hearing on May 2, 2006, which is required to be a trial de novo.
2) The trial court erred in delaying ruling on respondent's objections to evidence offered in the prior hearing since *892 the reporter's record was not available and this was required to be a trial de novo.
3) The trial court erred in finding that respondent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child in that the evidence was insufficient.
4) The trial court erred in finding that respondent 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 in that the evidence was insufficient.
5) The trial court erred in finding that respondent failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child in that there is no evidence or insufficient evidence of abuse or neglect of the child.
6) The trial court erred in finding that termination of the parent-child relationship between respondent and the child is in the child's best interest in that the evidence is insufficient.
7) The trial court erred in using the reporter's record in any manner on the trial de novo in that respondent's previous attorney should have withdrawn his representation of respondent due to a conflict of interest.
8) The trial court erred in using the reporter's record in any manner in that respondent's attorney at the previous hearing provided ineffective legal assistance to respondent.
9) The trial court erred in admitting evidence at the trial de novo the court reporter's record of the hearing before the associate judge and the evidence was insufficient to establish the facts required to terminate the parental relationship with respondent.
10) The trial court erred in proceeding to trial on the trial de novo without notice to James Edward Brown, the father of the child, and a person affected by the trial court's judgment.

Although we have points of appeal filed by appellant after the trial de novo, we are still required to determine if the points of error alleged in the original and supplemental brief are properly before this court.

Standard of Review

This appeal is governed by the rules of the Supreme Court regarding accelerated appeals and the procedures set forth in Subchapter E of Chapter 263 of the Texas Family Code. § 263.405(a). The Department was named as the managing conservator of K.C.B. in the trial court's final order. As such, this order is an order pursuant to Subchapter E, Chapter 263. Accordingly, any appeal of this final order must comply with the terms of Chapter 263. Chapter 263 requires that a statement of points on which the party intends to appeal be filed with the trial court not later than the 15th day after the trial court enters the final order. § 263.405(b). The statement may be combined with a motion for new trial. Id. Finally, the statute provides that the appellate court may not consider any issues not contained within the referenced statement of points or in conjunction with the motion for new trial. § 263.405(1).

Analysis

Applying this statutory scheme to the case before the court results in the inability of the court to consider all of appellant's points of error. Those points of error not listed in the statement of points for appeal filed subsequent to the trial de novo may not be considered by this court. See In re R.M.R., 218 S.W.3d 863, *893 864 (Tex.App.-Corpus Christi 2007, no pet.). The following points of error raised by appellant are not part of the statement of points for appeal:

Point of Error No. 1: The trial court erred in denying appellant's request for a jury trial.
Point of Error No. 3: The trial court erred in admitting into evidence the meconium drug test and results in that such test has not been scientifically determined to be accurate and there was no evidence concerning the collection method, the chain of custody, the reliability and methodology used by the laboratory, and the accuracy of the laboratory results.

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Bluebook (online)
280 S.W.3d 888, 2009 WL 638187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kcb-texapp-2009.