Opinion
No. 02-06-367-CV
DELIVERED: July 19, 2007.
Appeal from the 30th District Court of Wichita County.
PANEL F: WALKER, GARDNER, and MCCOY, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Following a jury trial, the Appellee, Texas Department of Family and Protective Services ("TDFPS"), obtained a judgment terminating the parental rights of Appellant J.C.C. to his two children, K.C. and W.C. After the termination judgment was entered, Appellant filed a statement of points challenging the legal and factual sufficiency of the evidence to support each of the four grounds for termination set forth in the court's charge to the jury and the jury's finding that termination of Appellant's rights would be in K.C.'s and W.C.'s best interests. Subsequently, the trial court appointed Appellant's trial counsel to serve as appellate counsel and conducted a hearing to determine whether Appellant was indigent and whether any appeal of the termination judgment would be frivolous. The trial court entered an order finding that Appellant was indigent, that any appeal would be frivolous, and that Appellant was entitled to have a copy of the clerk's record and the reporter's record of the frivolousness hearing prepared at no cost to himself.
The termination judgment also terminates the parental rights of K.C. and W.C.'s mother, but she did not appeal the termination judgment. K.C. was three years old at the time of trial, and W.C. was two years old.
TEX. FAM. CODE ANN. § 263.405(d)(3) (Vernon Supp. 2006).
In a single issue on appeal from the trial court's determination that any appeal would be frivolous, Appellant argues that this court's abuse-of-discretion review of the trial court's frivolousness finding constitutes an unconstitutional burden-shifting. Appellant complains that "the burden is on the government to prove by clear and convincing evidence that Appellant's parental rights should be terminated, and that burden did not change just because Appellant chose to pursue an appeal." Appellant further argues that "[w]ithout a record, there can be no appeal" and that requiring Appellant to show, without a record, that the appeal is not frivolous impermissibly shifts the burden from the government to the governed.
It is generally recognized that challenges to the constitutionality of a statute may be waived. In re R.B., No. 02-05-00357-CV, 2007 WL 1377749, at *2 (Tex.App.-Fort Worth May 10, 2007, no pet. h.) (citing In re K.A.F., 160 S.W.3d 923, 928 (Tex.), cert. denied, 126 S. Ct. 483 (2005) and Tex. Dep't of Protective Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001)); see also Wall v. Parrot Silver Copper Co., 244 U.S. 407, 411-12, 37 S. Ct. 609, 611 (1917). The presumption is that a statute enacted by our legislature is constitutional, and attacks on that presumption should generally be raised as an affirmative defense to enforcement of the statute. In re R.B., 2007 WL 1377749, at *2. In the absence of such a complaint in the trial court, we are without authority to consider it. Id.
We have thoroughly reviewed the clerk's record and the reporter's record from the frivolousness hearing, and Appellant did not raise any constitutional challenge to Texas Family Code section 263.405(g). Consequently, to the extent that Appellant could have raised his constitutional complaint in the trial court but failed to do so, it is waived. See id. Nonetheless, because Appellant's issue is framed in part as pivoting on the standard of review that this court is required to apply, we construe his issue liberally, assume that Appellant's brief in this court was the earliest opportunity that he possessed to raise this issue, and fully address it below. See TEX. R. APP. P. 38.1(e) (providing that the statement of an issue will be treated as covering every subsidiary question that is fairly included); Mercer v. Phillips Natural Gas Co., 746 S.W.2d 933, 936 (Tex.App.-Austin 1988, writ denied) (recognizing that "[t]he general rule is that the constitutional question must be raised at the earliest opportunity or it is waived").
Concerning the constitutionality of Texas Family Code section 263.405(g)'s requirement that this court review the trial court's frivolousness finding in the absence of a full reporter's record, this court has recently held that we possess the authority to order the preparation of a free record of all of the evidence in a termination case when necessary for us to review a trial court's determination that an appeal raising a factual sufficiency complaint is frivolous. In re M.R.J.M., 193 S.W.3d 670, 676 (Tex.App.-Fort Worth 2006, no pet.) (holding that such an order is "appropriate" under section 263.405(g)). In fact, we could make such an order in the present appeal because Appellant's statement of points raises the legal and factual sufficiency of the evidence to support each basis for termination that could have been found by the jury, including the finding that termination would be in K.C.'s and W.C.'s best interests, and the trial court made a finding that any appeal would be frivolous. TDFPS points out, however, that Appellant did not file a motion for new trial. Consequently, TDFPS claims that Appellant has not preserved a challenge to the factual sufficiency of the evidence. See TEX. R. CIV. P. 324(b)(2); In re A.J.L., 136 S.W.3d 293, 301-02 (Tex.App.-Fort Worth 2004, no pet.); In re J.M.S., 43 S.W.3d 60, 62 (Tex.App.-Houston [1st Dist.] 2001, no pet.); In re C.E.M., 64 S.W.3d 425, 428 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Because a motion for new trial is a prerequisite to a factual sufficiency challenge, we must agree that Appellant has waived any factual sufficiency challenge. See, e.g., TEX. R. CIV. P. 324(b)(2); In re A.J.L., 136 S.W.3d at 301-02.
Accordingly, we next review the record before us to determine whether it would be "appropriate" — despite Appellant's failure to preserve a factual sufficiency challenge — to order the reporter's record from the entire trial to be prepared and forwarded to this court. TDFPS points out that at the frivolousness hearing, it offered into evidence all of the documentary exhibits that had been introduced into evidence during the jury trial. TDFPS argues that in light of the clerk's record filed with this court and the voluminous exhibits admitted into evidence at the frivolousness hearing, and consequently brought forward to this court as part of the record of the frivolousness hearing, this court does not need to order preparation of the full record of trial.
We have thoroughly reviewed the three volumes of the clerk's record — containing 707 pages including interrogatory answers and requests for disclosure — and the eight exhibit volumes — containing approximately 2,835 pages — filed with this court, and we are confident based on the clerk's record and the exhibits that the trial court did not abuse its discretion by determining that any appeal by Appellant would be frivolous. The petition filed by TDFPS and contained in the clerk's record establishes that the trial court possessed jurisdiction over the case. The clerk's record reflects that counsel was timely appointed to represent Appellant, that counsel represented Appellant throughout trial, and that the same counsel was appointed to represent Appellant on appeal. The record shows that a trial was timely conducted following the filing of the original petition by TDFPS. The record reflects that the same judge that heard the trial evidence made the frivolousness finding.
The first amended petition filed by TDFPS pleaded six grounds for termination of Appellant's parental rights. The trial court ultimately charged the jury on four grounds, asking the jury separately with respect to K.C. and W.C. whether Appellant's parent-child relationship with them should be terminated and explaining that for the parent-child relationship to be terminated it must have been proven by clear and convincing evidence that at least one of the following events has occurred: Appellant knowingly placed or allowed the child to remain in surroundings which endangered the physical or emotional well-being of the child; Appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child; Appellant constructively abandoned the child who has been in permanent or temporary managing conservatorship of TDFPS for not less than six months and (1) TDFPS has made reasonable efforts to return the child, (2) the father has not regularly visited or maintained contact with the child, and (3) the father has demonstrated an inability to provide the child with a safe environment; and finally, Appellant failed to comply with the provision of a court order that specifically established the actions necessary for the father to obtain the return of the child who has been in the permanent or temporary managing conservatorship of TDFPS for not less than nine months as a result of the child's removal from the parent under chapter 262 for the abuse or neglect of the child. TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (N), (O) (Vernon Supp. 2006). The charge also instructed the jury on the best interest factors and explained that a finding that termination of the parent-child relationship was in the child's best interest was also required. See id. § 161.001(2); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
The exhibits in the record before this court show that K.C. suffered full-thickness third-degree burns over fifty-three percent of his body from a house fire on March 31, 2005, when he and W.C. were living with Appellant and their mother in Kansas. K.C. lost consciousness and went into cardiac arrest during the fire. K.C. suffered an anoxic brain injury and was in a coma for two to three months. Burns covered K.C.'s body, except for the right side of his face, half of his back, the soles of his feet, and his perineum area. Pictures in the record show K.C.'s severe burns. As a result of the burns, K.C.'s left ear and several fingers were amputated. An investigation into the cause of the house fire revealed that there were no batteries in the smoke alarms and that there was a charred space heater in the upstairs bedroom where K.C. was found.
Appellant and the children's mother had been offered services by CPS prior to the fire when they lived in Kansas.
K.C. was transported to and treated at Shriner's Burn Hospital in Galveston, Texas. A care coordinator at the hospital told TDFPS that Appellant and the children's mother were not cooperative with staff, hit and shoved each other, and failed to complete the classes necessary to learn to care for K.C. While K.C. was hospitalized in Galveston, on May 24, 2005, an order for his protection was entered, and TDFPS was named his temporary managing conservator. K.C. was transferred to Our Children's House at Baylor Hospital in Dallas for rehabilitative care. Appellant visited K.C. infrequently, did not attend a family conference scheduled for K.C., and did not obtain the training necessary to care for K.C. because he was not regularly present at K.C.'s bedside.
TDFPS's service plan for Appellant required him to learn the necessary skills to care for K.C.'s burns and to talk with K.C.'s medical providers about support groups for parents of children with burns. But in response to "Interrogator [sic] Number 12" served on him, Appellant admitted that he had done none of this.
Concerning W.C., the record reflects that while K.C. was in Galveston, Appellant and W.C. moved into a friend's home in Wichita Falls. Appellant was jailed briefly and after he was released from jail did not return to pick up W.C. Consequently, W.C. was placed in foster care. Appellant attended approximately 50% of his scheduled visits with W.C. During some of these visits, Appellant would fall asleep or talk on his cell phone. Although Appellant was ordered to pay child support for both K.C. and W.C., he did not make the required child support payments, and the Attorney General obtained an order garnishing Appellant's wages. Appellant admitted that prior to the removal of K.C. and W.C. from his care, both children were developmentally delayed.
The clerk's record filed and the approximately 2,835 pages of exhibits filed with this court establish that the trial court did not abuse its discretion by determining that an appeal by Appellant would be frivolous. Several, if not all, of the grounds for termination of Appellant's parent-child relationship with K.C. and W.C. that were submitted to the jury as well as the required best-interest findings as to K.C. and W.C. are established by more than ample evidence for us to conclude that the trial court did not abuse its discretion by determining that any appeal in this case would be frivolous. For all of these reasons — that Appellant's constitutional complaint was either not preserved or that, in light of our holding in In re M.J.R.M., Appellant's constitutional complaint has been decided adversely to him; that Appellant did not preserve his factual sufficiency points; and that the evidence before us and before the trial court demonstrates that the trial court did not abuse its discretion by determining that any appeal by Appellant would be frivolous — we overrule Appellant's sole issue and affirm the trial court's frivolousness finding.