Opinion
No. 02-06-099-CV
Delivered: November 2, 2006.
Appeal from the 30th District Court of Wichita County.
Panel F: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Rodolfo R. Sr. appeals the trial court's order terminating his parental rights in his children, C.R., E.R., and R.R. Jr. In two points, appellant complains that the evidence is legally and factually insufficient to support the two grounds for termination stated in the termination order.
Appellant's statement of points was not timely filed because he did not file it by the fifteenth day after the termination order was signed. We may not consider any issue that was not presented to the trial court in a timely-filed statement of points. Therefore, we may not consider appellant's points on appeal. Accordingly, we overrule appellant's points and affirm the trial court's judgment.
See TEX. FAM. CODE ANN. § 263.405(b) (providing that the statement of points must be filed "[n]ot later than the 15th day after the date a final order is signed by the trial judge"). The termination order was signed on March 20, 2006. Appellant did not file his statement of points until twenty-eight days later, on April 17, 2006.
See id. § 263.405(i); Coey v. Tex. Dep't of Fam. Protective Servs., No. 03-05-00679-CV, 2006 WL 1358490, at *2 (Tex.App.-Austin May 19, 2006, no pet.).
CONCURRING OPINION
I write separately to address my concerns about this type of appeal.
This appeal highlights an inherent problem in the legislature's 2005 additions to section 263.405 of the family code. Under subsection "b," parents whose rights have been terminated are required to file a statement of the points they intend to raise on appeal with the trial court within fifteen days of the date the final order granting termination was signed. TEX. FAM. CODE ANN. § 263.405(b) (Vernon Supp. 2006). Previously, we had held that subsection "b" was not a jurisdictional prerequisite to filing an appeal that raised a particular point. See In re J.J.O., 131 S.W.3d 618, 626-27 (Tex.App.-Fort Worth 2004, no pet.); In re S.J.G., 124 S.W.3d 237, 243-44 (Tex.App.-Fort Worth 2003, pet. denied).
However, new subsection "i" prohibits appellate courts from considering issues on appeal that were not previously presented to the trial courts in timely filed statements of the points to be raised on appeal. TEX. FAM. CODE ANN. § 263.405(i); In re D.A.R., 201 S.W.3d 229, 230 (Tex.App.-Fort Worth 2006, no pet.). This new subsection overrules our holdings in J.J.O and S.J.G. See TEX. FAM. CODE ANN. § 263.405(i).
Here, an indigent father, who had appointed counsel at trial and different appointed counsel on appeal lost the right to pursue his appellate issues because of the stringent fifteen-day time limit. Tex. Fam. Code Ann. § 263.405(b), (i). Although new appellate counsel was appointed to represent appellant, appellant's statement of points was not filed until twenty-eight days after the order being appealed was signed, instead of within fifteen days, so we are not to consider it. See id. § 263.405(i); In re D.A.R., 201 S.W.3d at 230; In re E.A.R., No. 10-06-00037-CV, 2006 WL 1642105, at *2 n. 2 (Tex.App.-Waco June 14, 2006, no pet.) (Vance, J., concurring). Thus, despite the supreme court's 2003 holding that indigent parents are entitled to counsel and that the right embodies the right to effective counsel, the right to raise appellate issues can still be lost because of a time deadline that expires before a notice of appeal is required. TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 26; see In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); In re D.A.R., 201 S.W.3d at 230-31; see also TEX. FAM. CODE ANN. § 107.013(a)(1) (Vernon Supp. 2006), 263.405(i). This is especially troubling in a case such as this one when new appellate counsel is appointed within this fifteen day window.
For these reasons, I respectfully concur in the result only.