in the Interest of M.N.R., M.E.R., M.R., & A.R., Minor Children ( 2011 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00375-CV

In the Interest of

M.N.R., M.E.R., M.R., & A.R., Minor Children,

From the County Court at Law No. 1

Johnson County, Texas

Trial Court No. D200900076

Order

            During trial on the Department of Family and Protective Service’s petition to terminate his parental rights, Appellant executed an irrevocable affidavit of relinquishment of his parental rights to his four children and designated the Department as their managing conservator.  The trial court found that termination would be in the children’s best interest and entered an order of termination.  Appellant, who was proceeding as an indigent, filed a motion for new trial, a notice of appeal, and a statement of points on appeal.

Appellant’s statement of points asserts two points:  (1) that subsection 161.103(e) of the Family Code is unconstitutional because it denies parents an opportunity to reconsider their decision to relinquish parental rights; and (2) that section 263.401 of the Family Code is unconstitutional because it arbitrarily requires a trial within eighteen months.

            Appellant, being represented by appointed counsel, appeals the frivolousness finding.  Appellant’s brief lacks any legal argument on the unconstitutionality of these statutes.[1] “Section 263.405(g) does not require an appellant to even file a brief with respect to the frivolousness finding although the appellate court may require the parties to file appellate briefs on the issues presented.”  M.C. v. Tex. Dep’t Fam. & Prot. Serv’s., 300 S.W.3d 300, 304 (Tex. App.—El Paso 2008), disp. on merits, 300 S.W.3d 305 (Tex. App.—El Paso 2009, pet. denied).

It appears that no court has addressed whether subsection 161.103(e) is unconstitutional because it denies parents an opportunity to reconsider their decision to relinquish parental rights.  At least one appellate court has addressed the constitutionality of section 263.401, finding it to be constitutional.  See Tex. Dep’t Fam. & Prot. Serv’s. v. Dickensheets, 274 S.W.3d 150, 161 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (addressing separation-of-powers challenge).

We conclude that these two constitutionality issues warrant briefing.  See Tex. Fam. Code Ann. § 263.405(g) (“The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues.”) (emphasis added).  Accordingly, within twenty days of the date of this order, Appellant shall file a brief on: (1) whether subsection 161.103(e) is unconstitutional because it denies parents an opportunity to reconsider their decision to relinquish parental rights; and (2) whether section 263.401 is unconstitutional because it arbitrarily requires a trial within eighteen months.  The Department’s brief shall be due within twenty days of the filing of Appellant’s brief.

Absent extraordinary circumstances, no motions for extensions of time to file briefs will be entertained.

PER CURIAM

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray does not join this order.  On the record and briefs currently on file with the Court, he would affirm the trial court’s determination that the appeal is frivolous.)

Order issued and filed May 4, 2011

Do not publish

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[1]               Instead of briefing the issues raised in his statement of points, Appellant’s brief argues that subsection 263.405(d) is unconstitutional because it allows the trial court to determine whether the appeal is frivolous, which thus interferes with or precludes an appellate court’s jurisdiction.  Because Appellant did not raise this issue in the trial court (in his statement of points on appeal), it cannot be raised for the first time on appeal.  See In re D.W., 249 S.W.3d 625, 631 (Tex. App.—Fort Worth 2008), pet. denied per curiam, 260 S.W.3d 462 (Tex. 2008); In re E.A.R., 201 S.W.3d 813, 814 (Tex. App.—Waco 2006, no pet.).  Appellant also appears to allege that subsection 263.405(g) is unconstitutional because it allows the trial court to refuse to provide a free record on appeal, thus preventing an appeal.  Because a clerk’s record and the reporter’s record from the hearing on Appellant’s motion for new trial have been filed, subsection 263.405(g)’s constitutionality is a moot issue, as it has not prevented Appellant from appealing the frivolousness finding.  See, e.g., In re M.V.G., --- S.W.3d ---, ---, 2010 WL 730366, at *11 (Tex. App.—Waco Mar. 3, 2010, no pet.) (on claim that section 263.405 was unconstitutional, noting that appellant did not identify any issue that statute prevented him from presenting for appellate review).