in the Interest of S. K. S., a Child ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00014-CV
______________________________
IN THE INTEREST OF S.K.S., A CHILD
On Appeal from the 76th Judicial District Court
Titus County, Texas
Trial Court No. 34,830
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After a long history of drug abuse by Jerry and Christy Smith and the incarceration of both,
their parental rights to S.K.S. were terminated. The Smiths appeal, urging three appellate issues.
We affirm the judgment of the trial court, because—although (1) a statement of points on appeal
was adequately filed—(2) no due-process-deprivation error was preserved for appellate review
and (3) the evidentiary sufficiency issues on appeal were not in the statement of points.
Jerry is incarcerated. S.K.S. was removed from Christy’s possession when she reported to
a battered women’s shelter. At the time of the termination, both Jerry and Christy were in jail.
In addition to the drug abuse by both parents, the record shows that Jerry beat Christy severely on
several occasions, but that she kept coming back to him. Ultimately, Jerry and Christy ran away
with S.K.S. when Jerry learned he was about to be arrested.
The order of termination was signed January 31, 2011. A premature notice of appeal was
filed by the Smiths, pro se, January 25, 2011. A notice of accelerated appeal was filed by
appointed counsel February 10, 2011. That notice contains a ―statement of points on appeal.‖
Those points read as follows.
Point 1: Respondents’ constitutional rights to rear their child free from
interference by the government has been violated by the trial court’s failure to
apply the due process standards set by the United States and Texas Constitutions
and by the Texas Legislature in Chapter 263 of the Texas Family Code.
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Point 2: The evidence presented at final hearing of this matter is legally
insufficient to support the Court’s ruling terminating the natural parents’ parental
rights is in the best interests of the child.
Point 3: The evidence presented at final hearing of this matter is factually
insufficient to support the Court’s ruling terminating the natural parents’ parental
rights is in the best interests of the child.
(1) A Statement of Points on Appeal Was Adequately Filed
As a threshold matter, the State argues that the Smiths did not properly present a statement
of points to the Court and therefore must fail in their appeal. Section 263.405 of the Texas Family
Code contains the requirements for statements of points. The first argument made by the State is
that the points were not properly presented because they were part of a notice of appeal, rather than
either being presented separately or as part of a motion for new trial.
―[A] party who intends to . . . appeal . . . must file with the trial court . . . a statement of the
point or points on which the party intends to appeal.‖ TEX. FAM. CODE ANN. § 263.405(b) (West
2008). The statute specifically allows the statement to be combined with a motion for new trial.
We do not read that section as restrictively as the State. The State argues that points are
adequately presented only if filed in a separate statement of points or as part of a motion for new
trial. In this instance, the statement of points (although separately labeled) was contained within
the notice of appeal, and that document was timely filed as a statement of points. Further, the
language of the order granting appointed counsel makes it clear that the document was recognized
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by the trial court, as the order refers to the notice of appeal and the statement of points on appeal set
forth therein.
We find this to be sufficient to meet the requirements of the statute. We do not read the
statute as providing only particular formats in which the statement of points may be presented to
the Court, although sufficient clarity to identify the points would certainly be necessary. Such
exists in this case, and its presentation to the Court within the Smiths’ notice of appeal is sufficient
to meet the requirements of the statute.
All three issues presented on appeal complain of failures with regard to the service-plan
requirements of Sections 263.101 and 263.102 of the Texas Family Code. By contrast, the
statement of points on appeal never complains of either of those sections or the alleged service
plan defects.
(2) No Due-Process-Deprivation Error Was Preserved for Appellate Review
The Smiths first assert a due process deprivation in the trial court’s failure to apply due
process standards set out by the State and Federal Constitutions and by Chapter 263 of the Texas
Family Code, specifically by not preparing a Family Service Plan for Jerry and by presenting a
plan for Christy that could not be followed because it required her to appear for examinations,
counseling, parenting classes, and drug screens that could not take place—because both Jerry and
Christy were incarcerated.1
1
The Smiths’ evidentiary sufficiency arguments are largely predicated on the failure of the Department of Family and
Protective Services (Department) to provide these plans.
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The State contends that we should not address the constitutional issues raised by the Smiths
because they were inadequately set out in the points2 or because they were not raised before the
trial court. Because we agree with the latter contention, we need not address the former.
On appeal, the Smiths argue that failures with regard to the service plan deny them due
process. This was never preserved by raising it with the trial court.
Issues raised on appeal are to direct our attention to error in the trial court. See generally
TEX. R. APP. P. 33.1. Due process and other alleged constitutional violations also must be raised
in the trial court for them to be preserved for appellate review. In re L.M.I., 119 S.W.3d 707,
710–11 (Tex. 2003); In re K.A.S., 131 S.W.3d 215, 230–31 (Tex. App.—Fort Worth 2004, pet.
denied); see also In re B.L.D., 113 S.W.3d 340, 349–55 (Tex. 2003) (discussing preservation of
error in termination cases). Further, any objection must be made in a timely fashion. TEX. R.
APP. P. 33.1. In this case, the issue raised here was not even hinted at until, after judgment, a
statement of points was filed. Also, the complaints regarding the service plan were not mentioned
until the Smiths filed their appellate brief. That is insufficient to preserve the alleged error for our
review. See L.M.I., 119 S.W.3d at 710.
2
The constitutional claim set out in the statement of points was quite general, complaining only generally that the trial
court failed to apply due process standards set by the State and Federal Constitutions and by Chapter 263 of the Texas
Family Code. It is difficult to see how that notifies anyone of the Smiths’ intent to complain on appeal about alleged
failures to comply with the service plan requirements of Sections 263.101–.102 of the Texas Family Code. See TEX.
FAM. CODE ANN. §§ 263.101–.102 (West 2008).
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Generally, our civil rules of procedure and our decisions thereunder require a party
to apprise a trial court of its error before that error can become the basis for reversal
of a judgment.
In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999).
Because the due-process-deprivation issue raised here was not raised with the trial court, it
was not preserved for our review.
(3) The Evidentiary Sufficiency Issues on Appeal Were Not in the Statement of Points
In their brief, the Smiths complain that the evidence is legally and factually insufficient to
support termination, because there was no adequate service plan provided by the Department.
Points 2 and 3 as stated in the statement of points, however, claim evidentiary insufficiency to
prove that termination was in the best interest of S.K.S., never mentioning the service plan. The
issues claimed on appeal are not those stated in the statement of points.
As to these points, we have jurisdiction to address only whether the evidence is sufficient
to demonstrate that termination is in S.K.S.’s best interest. Even if we read the Smiths’ briefing
as arguing that, because of failures relative to a service plan, the evidence is insufficient to prove
best interest, the arguments fail; the alleged failure regarding a service plan does not bear on the
best-interest issue.
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We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: June 8, 2011
Date Decided: June 21, 2011
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