in the Interest of D.A.M., a Child

• Court: Court of Appeals of Texas
• Decided: October 7, 2009
• Docket: 10-09-00075-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00075-CV

IN THE INTEREST OF D.A.M., A CHILD

From the 18th District Court Johnson County, Texas Trial Court No. D200805086

MEMORANDUM OPINION

Following a bench trial, the trial court rendered judgment terminating the

parental rights of D.A.M.’s mother and father. Both timely perfected an appeal. The

mother contends in two points that: (1) the evidence is factually insufficient to support

termination of her parental rights; and (2) her mental impairment is not a proper

ground for termination. The father presents two similar issues, contending: (1) the

evidence is factually insufficient to support termination of his parental rights; and (2)

his mental condition is not a proper ground for termination. We will affirm.

Because this case was instituted by the Department of Family and Protective

Services, section 263.405 of the Family Code governs this appeal. See In re S.T., 239 S.W.3d 452, 453 n.1 (Tex. App.—Waco 2007, order) (per curiam), disp. on merits, 263

S.W.3d 394 (Tex. App.—Waco 2008, pet. denied). Section 263.405(i) provides:

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. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.

TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2009).

The Supreme Court recently held that an ineffective assistance of counsel

complaint may be raised on appeal even if it was not included in a statement of points

under section 263.405(i). In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009). The Court also

held that this statute “is unconstitutional as applied when it precludes a parent from

raising a meritorious complaint about the insufficiency of the evidence supporting the

termination order.” Id.

This Court has construed J.O.A. to mean that we are authorized to consider

issues not presented in a timely filed statement of points only if such issues “challenge

the constitutionality of section 263.405(i) or complain that trial counsel was ineffective

for failing to file a statement of points.” In re Z.J.C., No. 10-09-00026-CV, 2009 WL

2179976, at *1 (Tex. App.—Waco July 22, 2009, no pet.); accord In re M.P., No. 04-08-

00881-CV, 2009 WL 2413694, at *1 (Tex. App.—San Antonio Aug. 5, 2009, no pet.) (mem.

op.); Robinson v. Tex. Dep’t of Family & Protective Servs., No. 01-08-00479-CV, 2009 WL

1688179, at *2 (Tex. App.—Houston [1st Dist.] May 18, 2009, no pet.) (mem. op.); but see

In re G.K., No. 09-08-00506-CV, 2009 WL 2616926, at *2-4 (Tex. App.—Beaumont Aug.

In re D.A.M. Page 2 27, 2009, no pet. h.) (mem. op.) (reviewing record and finding no merit to appellants’

legal and factual insufficiency complaints even though those complaints were not

presented in statement of points).

Here, neither party filed a statement of points for appeal under section 263.405.

The father at best included such a statement in his motion for new trial, stating “There

was insufficient evidence to terminate the parental rights of the Respondent.” This is

not a sufficiently specific statement to preserve a complaint for appellate review. See

TEX. FAM. CODE ANN. § 263.405(i); Lumpkin v. Dep’t of Family & Protective Servs., 260

S.W.3d 524, 527 (Tex. App.—Houston [1st Dist.] 2008, no pet.); In re J.W.H., 222 S.W.3d

661, 662 (Tex. App.—Waco 2007, no pet.); In re A.H.L., 214 S.W.3d 45, 54 (Tex. App.—El

Paso 2006, no pet.).

Because the mother did not file a statement of points and because the father did

not file a sufficiently specific statement of points, they did not preserve the issues

presented in their briefs for appellate review. See J.W.H., 222 S.W.3d at 662; see also

Z.J.C., 2009 WL 2179976, at *1. Thus, we overrule the issues presented and affirm the

judgment.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurring with note)* Affirmed Opinion delivered and filed October 7, 2009 [CV06]

In re D.A.M. Page 3 * (Chief Justice Gray concurs in the judgment to the extent that it affirms the termination of parental rights in the trial court’s order. A separate opinion will not issue.)

In re D.A.M. Page 4