Cause No. 08-0379 in the Texas Supreme Court
IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., AND C.T.M., CHILDREN; from
7th district (07-07-00042-CV, ___ SW3d ___, 02-25-08)(termination of parental rights and placement
with nonparents, constitutional challenge to statutory appellate prerequisite for appeal in termination of
parental rights cases)
This case has been set for oral argument at 9:00 a.m., October 14, 2008.
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
FEBRUARY 25, 2008
IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., and C.T.M., CHILDREN
FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;
NO. 7019; HONORABLE PHIL VANDERPOOL, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
This is an accelerated appeal of a final order rendered under subchapter E of chapter 263 of the Texas
Family Code pertaining to the placement of four children. As to two children, J.O.A. and T.J.A.M.,
Footnote the order names a relative of the children as their managing conservator; and, as to two
children, T.J.M. and C.T.M., the order involuntary terminates the parental rights of Appellants, Timothy
and Trena, Footnote and appoints the Texas Department of Protective and Regulatory Services as
managing conservator. Appellants jointly raise ten points of error. Points of error one and two challenge
the constitutionality of § 263.405(b) and (i) of the Texas Family Code, Footnote while points of error three
through ten challenge the findings of the trial court and the sufficiency of the evidence.
The Department’s brief presents eight issues and the brief filed on behalf of the children by their
attorney ad litem presents four issues. Although not clearly designated as such, the “issues” presented
by the Department and the attorney ad litem are in actuality responses to Appellants’ points. When
practicable, an appellee’s brief should respond to the appellant’s issues or points in the order that the
appellant presented those issues or points. Tex. R. App. P. 38.2(a)(2). Because both the Department
and the attorney ad litem contend that the order of the trial court should be affirmed, we will treat their
issues as a response to Appellants’ points of error and will not otherwise address their issues individually.
Relying upon § 263.405(i), the Department contends that Trena and Timothy are precluded from
having any of their arguments addressed because they failed to file a statement of points with the trial
court within fifteen days after the entry of the final order as required by § 263.405(b). The Department
further contends that constitutional complaints were waived because they were not timely and properly
presented to the trial court and preserved for review. As to the non-constitutional issues, the Department
and the attorney ad litem contend that the trial court’s order is supported by the law and the evidence.
We affirm in part and reverse and remand in part.
The Department of Family and Protective Services filed suit seeking (1) determination of the parentage
of J.O.A.; Footnote (2) termination of the parental rights of Trena as to her children J.O.A., T.J.A.M., T.J.
M., and C.T.M.; and (3) termination of the parental rights of Timothy as to his children T.J.A.M., T.J.M.,
and C.T.M. Following a two-part hearing conducted on August 16, 2006, and February 8, 2007, Footnote
the court signed an Order of Termination and Final Order in Suit Affecting the Parent-Child Relationship
(1) as to J.O.A., the trial court signed an order terminating the parental rights, if any, of any alleged
or unknown father, did not terminate Trena’s parental rights; but did find that the appointment of Trena
as managing conservator would not be in the child’s best interest and then appointed J.O.A.’s maternal
grandmother as his managing conservator, without appointing Trena as a possessory conservator;
(2) as to T.J.A.M., the trial court did not terminate either Trena or Timothy’s parental rights;
however, the court did find that the appointment of either parent as managing conservator would not be
in the child’s best interest and then appointed the child’s maternal grandmother as her managing
conservator, without appointing either Trena or Timothy as a possessory conservator; and
(3) as to T.J.M. and C.T.M., the trial court terminated Trena and Timothy’s parental rights and
appointed the Department of Family and Protective Services as managing conservator.
The trial court’s final order was signed on February 16, 2007. On February 21st, Trena’s trial counsel
filed her notice of appeal and also filed a motion to withdraw. On February 22nd, Timothy’s trial counsel
filed his notice of appeal and also filed a motion to withdraw. The trial court never ruled on the motions to
withdraw; however, on March 5th, (seventeen days after the date the final order was signed), the court
appointed appellate counsel to represent Trena, and on March 15th (twenty-seven days after the date
the final order was signed), the same appellate counsel was appointed to represent Timothy. Neither
Trena nor Timothy filed a statement of points within fifteen days afer the date the final order was signed
as required by § 263.405(b) or a timely motion for new trial. Factual Background
Trena is the biological mother of J.O.A., a male child born November 10, 1989. Trena and Timothy are
the biological mother and father of T.J.A.M., a female child born December 29, 1996, and T.J.M. and C.T.
M., male twins born July 27, 2005.
J.O.A. has lived with his maternal grandmother since he was four years old. T.J.A.M. has primarily lived
with Trena, except for a period of approximately one and half years while Trena was incarcerated. During
that period, T.J.A.M. also lived with Trena’s mother. T.J.M. and C.T.M. have never lived with either Trena
or Timothy because they were removed from their parents and placed in foster care before ever leaving
the hospital after their birth.
Trena and Timothy have had many problems during their marriage, mainly due to Trena’s persistent
drug use. As a result, Trena and Timothy have not always lived together. During periods of their
separation, T.J.A.M. would primarily stay with either Trena or Trena’s mother. During their marriage,
Trena was placed on probation for domestic violence committed against Timothy. When Timothy was in
his teens he was incarcerated for aggravated robbery. Footnote His parole was subsequently revoked
based upon an incident of domestic violence committed against Trena.
For several years, Trena struggled with her use of drugs, primarily cocaine and marihuana. She would
have periods of sobriety and periods of drug use. Timothy also struggled with the use of marihuana.
Trena and Timothy have attended a substance abuse program together. Trena was using drugs in early
2005 when she learned that she was pregnant with C.T.M. and T.J.M. When the twins were born, they
were premature. At that time, Trena admitted to marihuana use and tested positive by urine drug screen
for cocaine and barbiturates. At trial, she admitted to going on a five hour cocaine binge on July 25,
2005, just prior to her giving birth to the twins.
This episode of involvement by the Department began when the twins were born. On August 15, 2005,
prior to the twins being released from the hospital, the Department intervened on behalf of the children
the subject of this suit and removed them from the custody of Trena and Timothy. The Department’s
immediate concern primarily centered around the twins and Trena’s use of drugs. The two older children,
J.O.A. and T.J.A.M., were placed with their maternal grandmother and the twins, T.J.M. and C.T.M., were
placed with foster parents.
After the removal of the children, Trena was incarcerated from August 6, 2005, until December 12,
2005, for possession of cocaine. In February of 2006, she was asked to leave a women’s shelter after
she tested positive for cocaine. She was incarcerated from June 5, 2006, until June 16, 2006, for criminal
trespass. At the August 2006 hearing, Trena testified that she last used cocaine on May 25, 2006. She
then tested positive for cocaine on November 1, 2006 and January 3, 2007. During the period
subsequent to the removal of the children, she also failed to maintain steady employment or a place of
After the removal of the children, Timothy was allowed supervised visitation with T.J.M. and C.T.M;
however, he was never allowed to have possession of the twins alone. Timothy did receive a copy of his
service plan on September 26, 2005. He was incarcerated from November 2005 until January 2006 on
domestic violence charges that allegedly took place in 2003. Those charges were subsequently
dismissed after Trena admitted to the prosecutor that she had falsely accused Timothy. In February
2006, Timothy was advised that he needed to attend parenting classes and go for a drug screen prior to
February 24, 2006. He did not complete that drug screen. Timothy subsequently moved to California
where he attended a substance abuse program in May 2006. He testified that he also attended parenting
classes while in California. Timothy tested positive for marihuana use in July 2006. At trial, Timothy
admitted to using marihuana and testified that the last time he had used marihuana was on or about June
28, 2006. He missed a drug screen in October 2006. Additionally, Timothy was delinquent on his child
support. After returning to Texas, Timothy had steady employment, a better car and house, had daycare
available, and was attending parenting classes. He also presented evidence of three negative drug tests.
§ 263.405(b) Statement of Points
At the outset, we must address the Department’s contention that the failure to timely file a statement of
points, as required by § 263.405(b) of the Texas Family Code, precludes review of any of the issues
raised. A party intending to appeal a final order rendered under subchapter E of chapter 263 of the
Texas Family Code must file with the trial court, no later than fifteen days after the final order is signed, a
statement of points on which the party intends to appeal. § 263.405(b). The statement of points may be
filed separately or it may be combined with a motion for new trial. Id. An appellate court may not consider
any issue that was not specifically presented to the trial court in a timely filed statement of points. §
While several of our sister courts have questioned the practical application and constitutional validity of
this statute and have recommended that the Legislature reconsider the statute in light of the potentially
harsh effect of its application, Footnote every intermediate appellate court in this State has agreed that
the clear language of the statute prohibits appellate courts from considering points not properly
preserved by the timely filing of a statement of points. Footnote
The order being appealed in this case is a final order rendered under subchapter E of chapter 263 of
the Texas Family Code; therefore, Trena and Timothy were required to file a statement of points. The
failure to timely file a statement of points does not deprive the appellate court of jurisdiction over the
appeal; however, it is a procedural prerequisite to the appellate court’s authority to consider any issue
presented. See § 263.405(i). See also In re R.C., ___S.W.3d___ , No. 07-06-0444-CV, 2007 WL
1219046, *1 (Tex.App.–Amarillo April 25, 2007, no pet.). Because Trena and Timothy’s points were not
preserved for review as otherwise required by § 263.405(b), we will proceed to consider their
constitutional challenge contending that their federal and State due process right to effective assistance
of counsel was violated by counsels’ failure to file a statement of points.
Relying on the recent decision in In re B.S., No. 09-06-0293-CV, 2007 WL 1441273 (Tex.App.–
Beaumont May 22, 2007, no pet.) (not designated for publication), the Department contends that Trena
and Timothy’s constitutional challenge is precluded because they failed to raise that challenge in a timely
filed statement of points. In re B.S. is clearly distinguishable from this case. In In re B.S., the appellant’s
ineffective assistance of counsel claims did not pertain to the failure to timely file a statement of points.
Two ineffective assistance claims, which were included in a timely filed statement of points, were
overruled because the appellant failed to establish ineffective assistance, and two ineffective assistance
claims, which were not included in a timely filed statement of points, were also overruled based upon §
263.405(i). None of the appellant’s constitutionality claims in In re B.S. rested upon a claim of ineffective
assistance of counsel for failure to timely file a statement of points. In this case, we are squarely faced
with that challenge.
The Department also contends that Trena and Timothy’s constitutional claims were waived because
they were not procedurally preserved by the filing of a motion for new trial. Relying upon In re B.L.D., 113
S.W.3d 340 (Tex. 2003), the Department argues that the fundamental-error doctrine does not apply to
procedural preservation rules, nor does due process require appellate review of unpreserved complaints
in parental termination cases.
However, Trena and Timothy contend that § 263.405(i) is unconstitutional, as applied to them, because
they were denied their due process right to effective assistance of counsel. The Department also
contends that Trena and Timothy’s constitutional challenge is precluded because they failed to raise that
challenge in a timely filed motion for new trial. While we note an “as applied” constitutional challenge is
waived if not raised at the trial court level, see In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); In re S.K.A.,
236 S.W.3d 875, 887 (Tex.App.–Texarkana 2007, pet. filed Dec. 20, 2007), the very nature of Trena and
Timothy’s complaint is that they are being unconstitutionally deprived of their right to present the merits of
their appeal by being denied effective assistance of counsel. It matters not whether counsel failed to
preserve their right of appeal by failing to file a statement of points or a motion for new trial, the
constitutional principals are the same.
We further acknowledge that as an established rule of judicial practice, appellate courts should not
decide constitutional questions when an issue can be resolved on non-constitutional grounds. See, e.g.,
In re B.L.D., 113 S.W.3d at 349. Therefore, if their counsel was not ineffective we would not need to
address their constitutional claims. Accordingly, we will proceed to discuss Trena and Timothy’s claims of
ineffective assistance of counsel before we address the merits of their constitutional due process claims.
Ineffective Assistance of Counsel
Trena and Timothy allege that their counsel failed to provide competent assistance after the
termination proceedings in violation of their rights to due process of law. Specifically, they complain that
their respective trial counsel were ineffective because they failed to preserve a review of their complaints
on appeal by neglecting to ensure that a statement of points, as required by § 263.405(b), was timely
In a suit filed by a governmental entity in which termination of the parent-child relationship is requested,
indigent parents who respond in opposition to the termination are entitled to the appointment of counsel
to represent their interests. See § 107.013(a)(1). This statutory right to the appointment of counsel
necessarily embodies the right to effective assistance of counsel at every critical stage of the proceeding.
In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). A “critical stage” in a termination proceeding is any stage
where substantial rights of the parties may be affected. Cf. Mempa v. Rhay, 389 U.S.128, 134, 88 S.Ct.
254, 257, 19 L.Ed.2d 336 (1967).
Because Texas provides the right of an appeal from a judgment terminating parental rights, part of the
process of ensuring the accuracy of judgments necessarily includes the right to effective appellate
review. In re M.S., 115 S.W.3d at 546. Though avenues of appeal are not required to be established, it is
now fundamental that once established, these avenues of review must be kept free of unreasoned
distinctions that can only impede open and equal access to the courts. M.L.B. v. S.L.J., 519 U.S. 102,
111, 117 S.Ct. 555, 136 L.Ed. 473 (1996); In re M.S., 115 S.W.3d at 547. Not only must a parent be
allowed to appeal the termination of his or her parental rights, but that appeal must be meaningful. In re S.
K.A., 236 S.W.3d at 890.
Because a statement of points is a procedural prerequisite for appellate review, the deadline date for
filing a statement of points is a critical stage of the proceeding. Accordingly, we hold that Trena and
Timothy were entitled to effective assistance of counsel through the deadline date for filing a statement of
points in compliance with the requirements of § 263.405(b).
In a suit in which termination of the parent-child relationship is sought, the appropriate standard of
review for effective assistance of counsel is the same standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See In re M.S.,
115 S.W.3d at 545. The Strickland standard is well-established, fairly straightforward, and places a
sufficiently high burden on the movant to establish: (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced the complaining party. Strickland, 466 U.S. at 687; In re M.S., 115 S.W.
3d at 545.
When a party is represented by counsel during trial and the record does not reflect trial counsel
withdrew or was replaced by new counsel after judgment has been entered, there is a rebuttable
presumption that the trial counsel continues to represent that party through the time limit for filing a
motion for new trial. Cf. Smith v. State, 17 S.W.3d 660, 662-63 (Tex.Crim.App. 2000); Oldham v. State,
977 S.W.2d 354, 363 (Tex.Crim.App. 1998). In the case at bar, counsel for both Trena and Timothy
indicated that they understood that they had a continuing obligation when they prepared the individual
notices of appeal and when they filed their own motion to withdraw. Therefore, we conclude that trial
counsel’s duty to represent the interests of an indigent parent in a termination proceeding does not end
with trial but, instead, continues until the judgment becomes final or until counsel is expressly discharged
by the trial court. Because Trena and Timothy’s respective trial counsel had not been discharged or
replaced on or before the deadline date for the filing of a statement of points, we find they had a duty to
file a timely statement of points in accordance with the requirements of § 263.405(b).
With respect to whether counsel’s performance in a particular case is deficient, we must take into
account all of the circumstances surrounding the case and must primarily focus on whether counsel
performed in a “reasonably effective” manner; that is, whether the errors made by counsel were so
serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. In re M.S.,
115 S.W.3d at 545, (quoting Strickland, 466 U.S. at 687). Counsel’s performance falls below acceptable
levels of performance when the representation is so grossly deficient as to render the proceedings
“fundamentally unfair.” Brewer v. State, 649 S.W.2d 628, 630 (Tex.Crim.App. 1983); In re M.S., 115 S.W.
3d at 545. In making this determination, we must give great deference to counsel’s performance, and we
should find ineffective assistance of counsel only in those situations where the challenged conduct was
“so outrageous that no competent attorney would have engaged in it.” In re M.S., 115 S.W.3d at 545
(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)).
The filing of a statement of points is a straightforward procedure. That a statement of points is
required for appellate review of a final order rendered under subchapter E of chapter 263 of the Texas
Family Code is something that any competent trial counsel practicing in this area of the law should know.
Under the facts of this case, we find that Trena and Timothy’s trial counsels’ failure to ensure that
statements of points were timely filed amounted to ineffective assistance, satisfying the first prong of the
Strickland standard. However, our inquiry does not end there.
Having determined that Trena and Timothy’s counsels’ failure to file statements of points was deficient,
we must now address the second Strickland prong and determine whether the deficient performance
prejudiced the complaining party. In this case, Trena and Timothy both contend they have been
prejudiced by their respective counsel’s failure to file a statement of points because by failing to do so
they have been deprived of the right to show harm pertaining to the merits of their appeal. In essence,
Trena and Timothy complain that because they have been deprived of their right to present a meritorious
point of appeal, they have been harmed. To the extent that their issue is meritorious, we find that there is
a reasonable probability that but for counsel’s unprofessional error, the result of the proceeding would be
different. Accordingly, we find that Trena and Timothy’s respective trial counsel provided ineffective
assistance of counsel by failing to file a timely statement of points.
Due Process Claims
Recognizing that their legal and factual sufficiency claims are procedurally barred by this failure to file a
statement of points, Trena and Timothy contend that § 263.405(b) and (i) violate their federal and State
due process rights. Specifically, in their first and second points, Trena and Timothy contend their due
process rights, as guaranteed by the United States and Texas Constitutions, have been violated because
their trial counsel failed to timely file a statement of points, thereby depriving them of their due process
rights to effective assistance of counsel.
Because Trena and Timothy’s due process claims cannot be disposed of by non-constitutional means,
we will proceed to consider their legal and factual sufficiency claims in conjunction with their contention
that their federal and State due process rights to effective assistance of counsel was violated by
counsels’ failure to file timely statements of points.
The Texas Supreme Court has held that in cases where counsel was ineffective in preservation of jury
charge error, due process considerations did not require our procedural rules to be set aside. See In re
B.L.D., 113 S.W.3d at 351-54; In re J.F.C., 96 S.W.3d 256, 272-74 (Tex. 2002). The Court further
suggested, however, that the failure to preserve a factual sufficiency question might very well rise to the
level of a due process violation depending on a “different calibration of the [Mathews v.] Eldridge
Footnote factors.” In re B.L.D., 113 S.W.3d at 354; In re M.S., 115 S.W.3d at 547-48. In conducting an
Eldridge due process analysis, we must weigh these factors and then balance the net result against the
presumption that our procedural rules comport with constitutional due process requirements. In re B.L.D.,
113 S.W.3d at 354; In re M.S., 115 S.W.3d at 547.
Parental termination proceedings implicate fundamental liberties and such proceedings must comply
with the requirements of procedural due process. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982). The proper test for analyzing the constitutionality of a procedure in the
parental termination context is the three-part balancing test established by Eldridge, 424 U.S. at 335.
Determining what process is due in a particular proceeding requires consideration of three factors: (1)
the private interest affected by the proceeding or official action; (2) the countervailing governmental
interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of that
interest due to the procedures used. Id.
Concerning the first Eldridge factor, the private interests at stake, the Supreme Court has
acknowledged that the right of a parent to maintain custody of and raise his or her child “is an interest far
more precious than any property right.” Santosky, 455 U.S. at 758-59. A parent’s interest in the accuracy
and justice of a termination decision is a “commanding one.” Lassiter v. Department of Social Services of
Durham County, N.C., 452 U.S.18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Both the parent and the
child have a substantial interest in that decision. Therefore, the parent’s fundamental liberty interest in
maintaining custody and control of his or her child, the risk of permanent loss of the parent-child
relationship, and both the parents’ and the child’s interest in a just and accurate decision “weigh heavily
in favor of permitting a factually sufficiency review” of the evidence where counsel has unjustifiably failed
to preserve that error. In re M.S., 115 S.W.3d at 548. On the whole, the parent’s and the child’s interests
in ensuring that the decision to permanently extinguish the family bond is an accurate and just decision
weighs heavily in favor of permitting appellate review of that decision, despite the statutory bar, when
assistance of counsel in meeting the procedural prerequisites has been effectively denied. In re S.K.A.,
236 S.W.3d at 893.
The governmental interest in parental rights termination cases is to protect the best interest of the
child. In re B.L.D., 113 S.W.3d at 353. Indeed, the entire statutory scheme of the Texas Family Code for
protecting children’s welfare focuses on the child’s best interest. See §§ 153.002, 161.001(2), 263.306(4)
and (5). This interest is closely aligned with the State’s interest to see that termination cases are not
unduly prolonged. In re M.S., 115 S.W.3d at 548. This policy is reflected in the statutory provision
requiring that all appeals from termination proceedings be given precedence over other civil cases and
shall be accelerated by the appellate courts. § 109.002(a). Factual sufficiency determinations implicate
greater appellate delays; however, the State’s interests in economy and efficiency pale in comparison to
the private interests at stake, and to the risk that a parent may be erroneously deprived of his or her
parental rights and the child may be deprived of the parent’s companionship. Id. The State’s paramount
interest in meeting the best interest of the child is best served by a procedure that promotes an accurate
determination of whether the natural parents can ensure the safety and stability of the child. Id. at 549.
Thus, the second Eldridge factor also weighs in favor of permitting a sufficiency review when counsel
unjustifiably fails to follow procedural requirements. Id.
Perhaps the most critical Eldridge factor is the third factor, the risk of an erroneous deprivation of
parental rights. The “pivotal” fact in the analysis is that termination of parental rights is “traumatic,
permanent, and irrevocable.” Id. Termination divests for all time that natural right as well as all other legal
rights, privileges, duties, and powers existing between a parent and a child. Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985). For this reason, any significant risk of error is unacceptable. In re M.S., 115 S.W.3d
at 549. In the subjective world of a child’s best interest, absolute certainty can never be guaranteed;
however, the risk of an erroneous deprivation of parental rights based upon evidence that, though
minimally existing, fails to clearly and convincingly establish grounds for termination should not be
tolerated. Thus, if counsel unjustifiably fails to file a statement of points raising a meritorious sufficiency of
the evidence point, then such incompetency raises the risk of erroneous deprivation too high, and our
procedural rule governing preservation must give way to constitutional due process considerations.
When we balance the presumption that our procedural rules comport with constitutional due process
requirements against the Eldridge factors, we conclude that those factors weigh in favor of review most in
those situations where a review of the sufficiency of the evidence raises the greatest concern for the
potential of an erroneous deprivation of parental rights. In other words, where ineffective assistance of
counsel has prevented a review of the sufficiency of the evidence, and a review of the sufficiency of the
evidence reveals that there is a high probability that a parent’s rights have been erroneously terminated,
then due process considerations (i.e., the Eldridge factors) weigh in favor of a sufficiency analysis,
notwithstanding a procedural impediment. We acknowledge that this reasoning will require an appellate
court to review both legal and factual sufficiency issues to determine if it should even consider those
issues. Any lack of logic in this process can be attributed to the lack of logic in the statute itself.
We do not hold that every failure to preserve error through the failure to file a statement of points rises
to the level of a due process violation. Our ruling is specifically limited to that situation where trial counsel
has failed to timely file a statement of points raising a meritorious issue concerning legal or factual
sufficiency of the evidence. Accordingly, in the context of a valid issue on appeal concerning the due
process considerations of effective assistance of counsel in preserving a legal or factual sufficiency claim
through the filing of a statement of points, we will proceed to review Trena and Timothy’s legal and factual
sufficiency points to determine if the Eldridge factors weigh in favor of a consideration of those points
notwithstanding the absence of a timely filed statement of points.
We are mindful of the gut-wrenching environment within which parental termination cases are decided,
and we are sensitive to the subjectivity and lack of certainty that can be obtained in even the best
litigated parental-termination cases; however, in cases such as the case at bar, where the Department
seeks termination of both parents’ rights to multiple children based primarily upon acts of one parent
directed towards less than the whole number of children, we cannot be swept away with an emotional
determination of the best interests of the children at the expense of factually sufficient grounds for
termination as to each parent, as to each child. In other words, although contextually connected, the
grounds for termination must independently exist as to each parent, as to each child. Therefore, in our
review of Trena and Timothy’s legal and factual sufficiency points, we choose to address Trena’s points
separately from Timothy’s, and we choose to address each child independently. Standard of Review in
In proceedings to terminate the parent-child relationship, the petitioner must establish one or more acts
or omissions enumerated by statute and must additionally prove that termination of the parent-child
relationship is in the best interest of the child. § 161.001. Both elements must be established and proof of
one element does not relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544
S.W.2d 367, 370 (Tex. 1976). Because termination of parental rights is of such weight and gravity, due
process requires the petitioner to justify termination by clear and convincing evidence. § 161.001; In
Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980). Clear and convincing evidence is that measure or
degree of proof which 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. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
In a legal sufficiency review of the evidence to support an order terminating parental rights, we look at
all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true. § 101.007 (Vernon 2002), In re J.F.
C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions and the role of a
court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the
judgment means that a reviewing court must assume the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. Id. Thus, we disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. Id.
The standard for reviewing the factual sufficiency of termination findings is whether the evidence is
such that a reasonable factfinder could form a firm belief or conviction about the truth of the
Department's allegations. In re C.H., 89 S.W.3d at 25-26. Under that standard, we consider whether the
disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in
favor of its finding. In re J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient. Id. When, as in this case, findings of fact and conclusions of law were not filed, we must
presume that every disputed fact issue was found by the trial court in support of the judgment rendered.
Fields v. Texas Emp. Ins. Ass'n, 565 S.W.2d 327, 329 (Tex.Civ.App.–Amarillo 1978, writ ref'd n.r.e.).
Finally, we observe that only one statutory ground is required to terminate parental rights under §
161.001. See In re S.F., 32 S.W.3d 318, 320 (Tex.App.–San Antonio 2000, no pet.). Therefore, we will
affirm the termination order if there is both legally and factually sufficient evidence on any statutory
ground upon which the trial court relied in terminating. Id.
Trena’s Claims as to J.O.A. & T.J.A.M.
Where termination of parental rights is not involved, the balancing of the Eldridge factors does not
warrant a due process review of Trena’s ineffective assistance of counsel claims. Because the order
being appealed does not terminate Trena’s parental rights as to J.O.A. or T.J.A.M., we find that a review
of the court’s order, as it pertains to either J.O.A. or T.J.A.M., was not preserved for appeal because
Trena failed to file a timely statement of points as required by § 263.405(b). Consequently, point of error
three is overruled as to Trena.
Trena’s Claims as to T.J. M. & C.T.M.
As to the twins, T.J.M. and C.T.M., the record reflects that Trena went on a five hour cocaine and
alcohol binge on July 25, 2005, just hours before they were born. The record further reflects that Trena
had a long history of drug and alcohol abuse. Because T.J.M. and C.T.M. both tested positive for
controlled substances at the time of their birth, we find that the risk of an erroneous deprivation of Trena’
s parental rights is slight from a sufficiency of the evidence perspective. Therefore, upon balancing the
Eldridge factors, we further find that Trena’s ineffective assistance of counsel claims do not raise a
constitutional due process claim. Accordingly, we find that a review of the court’s order, as it pertains to T.
J.M. and C.T.M., was not preserved for appeal because Trena failed to file a timely statement of points as
required by § 263.405(b). Points of error one, two, six, seven, nine, and ten are overruled as to Trena.
Timothy’s Claims as to T.J.A.M.Where termination of parental rights is not involved, the balancing of the
Eldridge factors does not warrant a due process review of Timothy’s ineffective assistance of counsel
claims. Because the order being appealed does not terminate Timothy’s parental rights as to T.J.A.M., we
find that a review of the court’s order, as it pertains to T.J.A.M., was not preserved for appeal because
Timothy failed to file a timely statement of points as required by § 263.405(b). Consequently, point of
error three is overruled as to Timothy.Timothy’s Claims as to T.J. M. & C.T.M.
The Department alleged, and the court found, that termination of Timothy’s parental rights as to T.J.M.
and C.T.M. was appropriate under two separate grounds: (1) knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endanger the physical or emotional well-being of
the children; Footnote and (2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangers the physical or emotional well-being of the children. Footnote
T.J.M. and C.T.M. were removed from Timothy at birth. At all times relevant to their lives, T.J.M. and C.T.
M. were in “conditions or surroundings” dictated by the Department, not Timothy. Therefore, there is no
evidence that Timothy knowingly placed or knowingly allowed T.J.M. or C.T.M. to remain in conditions or
surroundings which endangered the physical or emotional well-being of the children.
To “endanger” the physical or emotional well-being of a child means “more than a threat of
metaphysical injury or the possible effects of a less-than-ideal family environment.” Tex. Dep’t. of Human
Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citations omitted). However, it is not necessary that
the conduct be directed at the child or that the child actually suffer injury, so long as the conduct exposes
the child to loss or injury. Id. Drug use and its effect on a parent’s life and his ability to parent may
establish an endangering course of conduct. In re A.J.H., 205 S.W.3d 79, 81 (Tex.App.–Fort Worth 2006,
While there was evidence calling into question Timothy’s parenting skills, Timothy’s parenting abilities
significantly improved following the Department’s involvement in the lives of his children. Evidence
supported Timothy’s efforts to clean up his life. Timothy demonstrated a willingness to continue
counseling and he established a support system through his church and his family. He secured suitable
housing and employment. He exercised regular visitation, attended parenting classes, and demonstrated
a pattern of being drug-free. While Timothy was hardly the ideal father, based upon this record, we
cannot say that a reasonable and rational factfinder could have formed a firm belief or conviction that
Timothy engaged in conduct which exposed T.J.M. or C.T.M. to loss or injury and jeopardized the children’
s emotional and physical well-being because there is insufficient evidence of Timothy’s continued drug
use, subsequent incarceration, or other anti-social behavior. Therefore, we find that the evidence is
legally and factually insufficient to support the predicate finding of conduct endangering the children.
Having found insufficient evidence of conduct endangering the children, we need not address the second
predicate, the best interest of the children. Accordingly, we find that the termination of Timothy’s parental
rights as to T.J.M. and C.T.M. is not supported by the evidence.
Having found that the risk of an erroneous deprivation of Timothy’s parental rights as to T.J.M. and C.T.
M. is high from a sufficiency of the evidence perspective, upon balancing the Eldridge factors, we further
find that Timothy’s ineffective assistance of counsel claims do raise a constitutional due process claim. To
the extent that § 263.405(i) prevents this Court from considering those claims, we find it to be
unconstitutional as applied to the facts of this case. In re S.K.A., 236 S.W.3d at 894. Points of error one,
two, four, five, eight, nine, and ten regarding termination of Timothy’s parental rights to T.J.M. and C.T.M
Accordingly, we affirm that portion of the trial court’s order terminating the parental rights, if any, of any
alleged or unknown father as to J.O.A.; affirm that portion of the order appointing the maternal
grandmother as J.O.A.’s managing conservator; affirm that portion of the order appointing the maternal
grandmother as T.J.A.M.’s managing conservator; affirm that portion of the order terminating the parental
rights of Trena to the twins, T.J.M. and C.T.M.; and reverse that portion of the trial court’s order
terminating the parental rights of Timothy to the twins, T.J.M. and C.T.M., and remand this cause to the
trial court for further proceedings consistent with this opinion. In reaching this decision, the Court makes
no judgment whatsoever as to whether it is in the best interest of T.J.M. and C.T.M. to be physically
placed with Timothy. The decision to allow T.J.M. and C.T.M. to live with Timothy can, and should, only be
made by the trial court based upon the best interest of T.J.M. and C.T.M. after a review of the facts and
circumstances as they exist at the time of that review.
Patrick A. Pirtle