in the Intererst of C.W., Jr., I.S., E.R., & D.G ( 2009 )

Affirmed and Memorandum Opinion filed December 10, 2009.

In The

Fourteenth Court of Appeals

NO. 14-09-00306-CV

In the Interest of C.W., Jr., I.S., E.R., and D.G.

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 08CP0026

MEMORANDUM  OPINION

Appellant Jessica Stevenson appeals a final order terminating her parental rights to her child D.G.[1] After a bench trial, the trial court (1) appointed the Texas Department of Family and Protective Services (“DFPS”) as sole managing conservator of appellant’s four children, C.W. Jr., I.S., E.R., and D.G.; and (2) involuntarily terminated the parent-child relationship between appellant and D.G.  In four issues, appellant argues that (1) she received ineffective assistance of counsel; (2) the trial court’s judgment exceeded the scope of the pleadings; (3) the evidence was legally and factually insufficient to prove that appellant knowingly placed or knowingly allowed D.G. to remain in conditions or surroundings which endangered her physical or emotional well-being; and (4) the evidence was legally and factually insufficient to prove that termination of the parent-child relationship between appellant and D.G. was in the best interest of D.G.[2] We affirm.

Background

            Appellant is the mother of four children: C.W., Jr., age six; I.S., age five; E.R., age three; and D.G., age two.  DFPS received a referral on February 16, 2008, indicating that D.G., who was two months old at the time, had shaken baby syndrome.  D.G. was admitted to the hospital for treatment of fractures to her ribs, femurs, right proximal tibia, distal humeri, radii, and ulnas.  Medical personnel also placed a shunt in D.G.’s head to drain fluid from her brain to her stomach.

An investigator from DFPS spoke with appellant and D.G.’s father at the hospital.  Neither appellant nor D.G.’s father could explain how D.G. sustained these injuries.  As a result, DFPS conducted a voluntary placement of appellant’s four children.  C.W., Jr., I.S., and E.R. were placed with a neighbor, and D.G. was placed with her paternal grandmother.    

            DFPS filed a petition seeking to terminate the parent-child relationship between appellant and her four children on March 10, 2008.[3] A bench trial was held on February 9, 2009.  On March 3, 2009, the trial court signed two final orders:  (1) a Final Order in Suit Affecting the Parent-Child Relationship appointing DFPS as sole managing conservator of all four children; and (2) an Order of Termination terminating the parental rights of the children’s fathers and appellant as to D.G.  The trial court found that (1) appellant “knowingly placed or knowingly allowed [D.G.] to remain in conditions or surroundings which endanger the physical or emotional well-being of [D.G.];” and (2) termination of the parent-child relationship between appellant and D.G. was in the best interest of D.G. 

Based on the March 3, 2009 Order of Termination date, appellant’s notice of appeal was due to be filed by March 25, 2009 and her statement of points on appeal was due to be filed by March 18, 2009.  See Tex. R. App. P. 26.1; Tex. Fam. Code Ann. § 263.405(b) (Vernon 2009).[4] Appellant’s trial counsel was “removed from [this case]” and appellate counsel was appointed to represent appellant in an order signed on March 5, 2009.[5] Trial counsel did not file a notice of appeal or statement of points on appeal before he was removed.  Appellant’s appellate counsel filed a notice of appeal and statement of points on March 27, 2009.[6]

Analysis

Appellant presents four issues on appeal.  As a threshold matter, DFPS argues that appellant preserved no issues for appeal because she failed to timely file a statement of points as required under Texas Family Code section 263.405(b), (i). 

I.         Texas Family Code Section 263.405

            Section 263.405’s requirements are a procedural prerequisite to an appellate court’s authority to consider the issues presented.  In re J.O.A., 262 S.W.3d 7, 16 (Tex. App.—Amarillo 2008), aff’d as modified and remanded, 283 S.W.3d 336 (Tex. 2009).  Section 263.405(b) requires an appellant to file “a statement of the point or points on which the party intends to appeal” not later than 15 days after the date on which a final termination order is signed.  Tex. Fam. Code Ann. § 263.405(b).  The Family Code further provides in section 263.405(i) that an “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.”  Id. § 263.405(i). 

            Appellant failed to timely file a statement of points on appeal or motion for new trial.  The trial court signed its Order of Termination on March 3, 2009, and appellant did not file her statement of points until March 27, 2009 — after the 15-day deadline had passed.  Therefore, we cannot consider appellant’s arguments regarding whether (1) the trial court’s judgment exceeded the scope of the pleadings; (2) the evidence was legally and factually sufficient to prove that appellant knowingly placed or knowingly allowed D.G. to remain in conditions or surroundings which endangered her physical or emotional well-being; and (3) the evidence was legally and factually sufficient to prove that termination of the parent-child relationship between appellant and D.G. was in the best interest of D.G.  See id. § 263.405(b), (i); Bermea v. Tex. Dep’t of Family & Protective Servs., 265 S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).[7]

            We overrule appellant’s second, third, and fourth issues.         

II.        Ineffective Assistance of Counsel

Failure to file a statement of points on appeal under section 263.405(i) does not preclude an appellate court from reviewing an ineffective assistance of counsel claim.  In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009).  We review ineffective assistance claims in termination cases under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See In re M.S., 115 S.W.3d 534, 545 (Tex. 2003).  

Under Strickland, an appellant must establish that (1) trial counsel’s representation was deficient; and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Strickland, 466 U.S. at 687; In re M.S., 115 S.W.3d at 545.  To establish these prongs, the appellant must establish by a preponderance of the evidence that (1) counsel’s representation fell below the objective standard of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different.  Strickland, 466 U.S. at 690-94.  A reasonable probability is one sufficient to undermine confidence in the outcome of the trial.  Id. at 694.  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.). 

            Appellant argues that her trial counsel was ineffective because he failed to (1) file documents on her behalf; (2) preserve error on objections; (3) object to proposed exhibits; (4) prepare appellant to testify; (5) call any witnesses or issue any subpoenas; (6) clarify a purported agreement for the record; and (7) timely file a notice of appeal and statement of points on appeal.   

Appellant provides no argument or authority supporting her first six claims of ineffective assistance of counsel.  Briefs must contain clear and concise arguments for the contentions made and include citations to authorities and the record.  See Tex. R. App. P. 38.1(h). If an appellant fails to advance a viable argument on appeal with citations to appropriate authority, an appellate court is not required to independently review the record and applicable law to determine whether the alleged error occurred.  See In re C.M.C., 273 S.W.3d 862, 878 n.9 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (op. on reh’g); Lundy v. Masson, 260 S.W.3d 482, 503 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); see also Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.—Houston [1st Dist.] 1995, no writ).  Appellant waives any issue that she fails to brief adequately.  See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).    

Appellant makes broad conclusory assertions that her trial counsel’s performance was deficient.  But appellant does not identify the specific actions that she attacks.  Regarding trial counsel’s asserted failure to object and preserve error on objections, appellant fails to identify the specific objections that should have been made.  Appellant also fails to identify the (1) “counterpleadings” or “counterclaims” that she contends trial counsel should have filed; (2) witnesses trial counsel should have called; and (3) testimony that would have been given.  Appellant also asserts that her trial counsel failed to present a purported agreement to the court but fails to identify the terms of the purported agreement.  Further, appellant failed to advance any argument showing that she was harmed by these alleged deficiencies.

Appellant failed to adequately brief these claims on appeal; therefore, they are waived.  See Tex. R. App. P. 38.1(h); Swearingen, 101 S.W.3d at 100; see also Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006) (failure to advance any legal or factual arguments regarding how counsel’s alleged failures harmed appellant authorized court to deny relief based on briefing waiver); Bessey v. State, 199 S.W.3d 546, 555 (Tex. App.—Texarkana 2006), aff’d, 239 S.W.3d 809 (Tex. Crim. App. 2007) (appellant inadequately briefed and, therefore, waived claim of ineffective assistance of counsel because he advanced no arguments demonstrating prejudice); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

In her seventh point, appellant argues that her trial counsel rendered ineffective assistance because he failed to timely file a notice of appeal and statement of points on appeal.  Appellant’s appellate counsel filed a motion for extension of time to file the notice of appeal, and we granted it.  Therefore, appellant was not prejudiced by trial counsel’s alleged failure to file a notice of appeal.  Because there was no prejudice under Strickland’s second prong, we need not address whether trial counsel’s failure to file the notice of appeal timely was deficient.  See Strickland, 466 U.S. at 697.

With respect to the failure to file a timely statement of points on appeal, we conclude that appellant has not satisfied Strickland’s first prong. 

Appellant cites In re J.O.A., 283 S.W.3d at 343-44, to support her argument that trial counsel’s failure to file a timely statement of points on appeal constitutes ineffective assistance of counsel.  In In re J.O.A., Timothy M. alleged his trial counsel was ineffective for failing to timely file a statement of points as required under section 263.405(b), (i).  Id. at 339.  The trial court signed an order terminating Timothy’s parental rights as to two of his children on February 16, 2007.  Id. at 340.  Timothy’s trial counsel filed a notice of appeal and a motion to withdraw on February 22, 2007.  Id.  The trial court did not rule on the motion to withdraw and did not appoint Timothy’s appellate counsel until after the 15-day deadline to file a statement of points on appeal had expired.  Id.    Timothy still was represented by his trial counsel when the 15-day deadline passed.  Id. at 343.  The Texas Supreme Court concluded that trial counsel’s failure to file a statement of points on appeal constituted ineffective assistance.  Id.

Unlike In re J.O.A., appellant’s trial counsel was removed from the case and appellate counsel was appointed 13 days before expiration of the 15-day deadline.  Appellate counsel received notice via facsimile of her appointment on the same day the order was signed.  Relying upon In re J.O.A., appellant nonetheless asserts that the burden of filing a statement of points on appeal fell on trial counsel.  See id. at 344 (“Given the accelerated timetable, the burden [of filing a statement of points on appeal] should logically fall on trial counsel . . . .”). 

This statement from In re J.O.A., which arose in circumstances involving trial counsel who had not withdrawn as of the deadline, cannot be applied mechanically to the circumstances here.  In this case, trial counsel was “removed” and appellate counsel was appointed 13 days before the deadline ran.  Appellant argues that appellate counsel did not participate at trial, and trial counsel “would have been the one with the knowledge necessary to cover all the issues that needed to be preserved for appeal[.]”  This argument is unavailing.  If appellant’s new counsel needed extra time to prepare a statement of points on appeal, new counsel could have requested an extension of time to file the statement of points under Texas Rule of Civil Procedure 5 before the 15-day deadline expired.  Tex. R. Civ. P. 5; see In re S.N., No. 11-08-00293-CV, 2009 WL 2209863, at *3 (Tex. App.—Eastland July 23, 2009, no pet.) (“If [appellate] counsel needs a reporter’s record to prepare a statement of points, the trial court has the authority to extend the Section 263.45(b) fifteen-day deadline.”). 

We conclude that appellant’s trial counsel did not fall below the objective standard of prevailing professional norms by failing to file a statement of points in a case in which he was removed as counsel two days after the Order of Termination at issue was signed, and appellate counsel simultaneously was appointed. 

Based on the record before us, appellant has failed to satisfy Strickland’s first prong with respect to trial counsel’s failure to file a statement of points on appeal.  Strickland, 466 U.S. at 687; In re M.S., 115 S.W.3d at 545.  Nonetheless, even if appellant could satisfy Strickland’s first prong, she cannot satisfy Strickland’s second prong with respect to demonstrating “that counsel’s deficient performance prejudiced” her.  Strickland, 466 U.S. at 687.  

Appellant contends that she was prejudiced by her trial counsel’s failure to timely file a statement of points on appeal because her appellate points were meritorious.  We disagree.

Appellant first contends that the trial court exceeded the scope of the pleadings in terminating appellant’s parental rights as to D.G.  Appellant argues that DFPS abandoned its pleadings regarding termination of appellant’s parental rights as to her children pursuant to a purported agreement or stipulation between DFPS and appellant.  Under Texas Rule of Civil Procedure 11, “no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”  Tex. R. Civ. P. 11.  The only agreement complying with Rule 11 in this case is between DFPS and one of the children’s fathers. Further, DFPS’s live pleading in this case was its second amended petition in which DFPS sought termination of appellant’s parental rights if reunification could not be achieved.  Therefore, appellant’s second issue would not have been meritorious. 

Appellant next challenges the legal and factual sufficiency of the evidence supporting the trial court’s findings that (1) appellant knowingly placed or knowingly allowed D.G. to remain in conditions or surroundings which endangered her physical or emotional well-being; and (2) termination of the parent-child relationship between appellant and D.G. was in the best interest of D.G. 

Parental rights can be terminated only upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Family Code, and (2) termination is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2009); In re J.O.A., 283 S.W.3d at 344.  Clear and convincing evidence is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”  Id. § 101.007 (Vernon 2009). 

In reviewing legal sufficiency in a parental termination case, we must consider all evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that its finding was true.  In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).  We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved.  In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.            

In reviewing termination findings for factual sufficiency, we consider and weigh all of the evidence.  In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.  But we give due deference to the factfinder’s resolution of factual questions.   In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).  We then determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent.  In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. 

Appellant first challenges the legal and factual sufficiency of the evidence supporting the trial court’s termination of her parental rights as to D.G. under Family Code section 161.001(1)(D).  Section 161.001(1)(D) permits a trial court to terminate a parent-child relationship if it finds by clear and convincing evidence that a parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.”  Tex. Fam. Code. Ann. § 161.001(1)(D).  “Endanger” means “to expose to loss or injury, to jeopardize.”  Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  

Subsection (D) concerns the child’s living environment, rather than the parent’s conduct.  In re S.M.L., 171 S.W.3d 472, 476 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  But parental conduct is relevant to the child’s environment.  Id.; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).  Although the parent need not have actual knowledge that an injury is occurring, the parent must be aware of the potential for danger to the child in the environment and must have disregarded that risk.  In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.).  Living conditions that are merely “less-than-ideal” do not support a finding under this section.  Boyd, 727 S.W.2d at 533.  Endangerment can be exhibited both by actions and failures to act.  In re U.P., 105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).  Abusive or violent conduct by a parent or other resident of a child’s home may produce an environment that endangers the physical or emotional well-being of a child.  In re A.S., 261 S.W.3d 76, 84 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

Appellant admits that D.G. suffered physical harm, but argues that the evidence is unclear regarding how D.G. sustained her injuries and who caused them.  This argument is irrelevant to termination under section 161.001(1)(D).  See In re S.M.L., 171 S.W.3d at 476; In re C.L.C., 119 S.W.3d at 392.  The record here demonstrates that D.G. was exposed to injury and was in fact subjected to severe physical injuries. 

Appellant argues that she was unaware of D.G.’s injuries before the diagnosis of shaken baby syndrome, and that she voluntarily removed D.G. from the harmful environment upon learning of D.G.’s injuries.  D.G. was two months old when DFPS removed her from appellant’s care.  Before removal, D.G. lived with and was cared for by appellant and D.G.’s father.  D.G.’s father had assaulted appellant in the past and appellant had witnessed D.G.’s father being “heavy handed” with D.G. and her other children.  Appellant also noted that D.G.’s father would get frustrated with the children and that she “could see him getting [violent].” 

The evidence at trial demonstrated that D.G. had sustained fractures to her ribs, femurs, right proximal tibia, distal humeri, radii, and ulnas.  Some of these fractures were determined to be six weeks old.  The evidence also showed that, for two weeks before receiving treatment, D.G. was crying most of the time, not eating, and screamed when she was picked up and put down.    

This evidence is sufficient to allow the trial court to form a firm belief or conviction that appellant knowingly placed or knowingly allowed D.G. to remain in conditions or surroundings which endangered her physical or emotional well-being.  See In re J.O.A., 283 S.W.3d at 344-45; In re J.F.C., 96 S.W.3d at 266.  Therefore, appellant’s third issue would not have been meritorious. 

Appellant also challenges the legal and factual sufficiency of the evidence supporting the trial court’s finding that termination of her parental rights as to D.G. was in the best interest of D.G. We consider the following factors in determining whether termination of the parent-child relationship is in the best interest of the child: (1) the child’s desires; (2) the child’s emotional and physical needs now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re C.M.C., 273 S.W.3d 862, 876 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  “Best interest” does not require proof of any unique set of factors, and it does not limit proof to any specific factors.   In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  The same evidence of acts or omissions used to establish a ground for termination under section 161.001(1) may be probative in determining the best interest of the child.  In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).  

At trial, the evidence demonstrated that, due to D.G.’s injuries, she required 24-hour care.  D.G.’s paternal grandmother testified that she did not think appellant and D.G.’s father were capable of caring for D.G.’s physical or emotional needs.  Appellant offered no evidence to show that she was able to provide a safe living environment for D.G. Rather, there was evidence that appellant and D.G.’s father were still living together.  Appellant also failed to outline a permanent plan for caring for D.G.  In contrast, DFPS presented evidence that D.G. was recovering from her injuries and doing well in her placement with her paternal grandmother.  DFPS also presented evidence that D.G.’s paternal grandmother wanted to continue to care for D.G.  Further, appellant provided no excuse for her acts and omissions relating to her care of D.G. 

There also was evidence at trial that appellant was cooperative with DFPS and continued to provide for D.G. by supplying D.G.’s paternal grandmother with items such as diapers, clothes, and medicine.  D.G.’s paternal grandmother also testified that appellant interacted with D.G. well and that she felt appellant should continue to have a relationship with D.G.   

After weighing all of the evidence, the evidence was sufficient to allow the trial court to form a firm belief or conviction that termination of appellant’s parental rights as to D.G. was in the best interest of D.G.  See In re J.O.A., 283 S.W.3d at 344-45; In re J.F.C., 96 S.W.3d at 266.  Therefore, appellant’s fourth issue would not have been meritorious.

Because the issues identified for appeal would not have been meritorious, appellant cannot satisfy Strickland’s second prong.

We overrule appellant’s first issue.     

Conclusion

            We affirm the trial court’s judgment.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Chief Justice Hedges, Justices Anderson and Boyce.

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[1] See Tex. R. App. P. 9.8 (requiring alias name for child in parental-rights termination cases).

[2] Appellant does not appeal the trial court’s order appointing DFPS as sole managing conservator of appellant’s four children.  Therefore, only the trial court’s March 3, 2009 Order of Termination as to Jessica Stevenson is addressed in this appeal.

[3] DFPS also sought termination of the parental rights of the children’s fathers. The trial court granted this request in its Order of Termination signed on March 3, 2009.  The trial court’s termination of the parental rights of the children’s fathers is not challenged in this appeal.

[4] An appeal of a final order rendered under section 263.405 is an accelerated appeal.  Tex. Fam. Code Ann. § 263.405(a).  In an accelerated appeal, a party has 20 days after the judgment or appealable order is signed to file a notice of appeal.  Tex. R. App. P. 26.1(b).  In this case, the 20-day deadline expired on March 23, 2009, a Saturday.  Therefore, the period extended to March 25, 2009, the following Monday.  Tex. R. App. P. 4.1(a).

[5] The court signed two orders removing appellant’s trial counsel and appointing new counsel on appeal.  The trial court originally signed an order on March 4, 2009, removing appellant’s trial counsel and appointing Brenda Duschane as new counsel on appeal.  The trial court signed a corrected order on March 5, 2009, removing appellant’s trial counsel and appointing Marcela Ortiz-Taing as new counsel on appeal.  Appellant’s appellate counsel received a copy of the corrected order via facsimile on March 5, 2009.  

[6] Appellant filed a motion to extend time to file notice of appeal on August 17, 2009.  We granted appellant’s motion in an order issued on August 27, 2009.

[7] Appellant does not challenge section 263.405’s constitutionality.