NO. 12-11-00169-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 402ND
L.K. AND D.K., JR., § JUDICIAL DISTRICT COURT
CHILDREN § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
C.P.K. and D.R.K., Sr., appearing pro se, appeal the termination of their parental rights.
In twenty-five and twenty-one issues respectively, C.P.K. and D.R.K., Sr. challenge the order of
termination. We affirm.
BACKGROUND
C.P.K. and D.R.K., Sr. (Appellants) are the parents of two children, L.K., born May 8,
2008, and D.K., Jr., born October 14, 2009. On November 6, 2009, the Department of Family
and Protective Services (the ―Department‖) filed an original petition for protection of the
children, for conservatorship, and for termination of Appellants’ parental rights. The
Department was appointed the children’s temporary managing conservator. As temporary
possessory conservators, Appellants were granted supervised visitation with the children at the
paternal stepgrandmother’s discretion.
The case proceeded to trial on April 13, 2011. After the conclusion of the trial, the trial
court found, by clear and convincing evidence, that Appellants had engaged in one or more of
the acts or omissions necessary to support termination of their parental rights, and that
termination of the parent-child relationship between Appellants and the children was in the
children’s best interest. Therefore, the trial court ordered that the parent-child relationship
between Appellants and the children be terminated. Appellants each filed separate motions for
new trial, which were denied as untimely. This appeal followed.
CONSTITUTIONAL CLAIMS
In her first, fourth, ninth, tenth, twelfth, seventeenth, eighteenth, twenty-first, and twenty-
fourth issues, and part of her second issue, C.P.K. argues that her constitutional rights were
violated. Likewise, in his ninth, tenth, twelfth, and seventeenth issues, and part of his first,
second, and eleventh issues, D.R.K., Sr. also argues that his constitutional rights were violated.
C.P.K.’s constitutional complaints are set out below as they appear in her brief:
1. [The trial court] violated my [ ] God given and Constitutionally protected rights and liberties
with full acknowledgment of the violations being committed by facilitating and participating
in the outlawry actions under color of law in collusion with the [Department] to obtain
permanent managing conservatorship of my children, [L.K. and D.K., Jr.].
2. There was a substantial lack of due process at the final hearing and throughout this case
which raises the question of the fundamental fairness in the court. I was not afforded the
opportunity to make a final record as my appointed attorney [ ] did not allow me to speak and
waived my opportunity to clarify, defend, or counter statements made by witnesses and
rendered as factual, prior to their solidification, and even though some of which are provably
false. All witnesses were subpoenaed on the STATE[’S] behalf, indicative of a conspiracy to
defraud my family on their fundamental liberty interests in the health and well being of its
offspring and interfering with familial relationships with NO EVIDENCE of criminal acts or
intents.
4. I [ ] charge that [the trial court], [various Department employees], and [retained and appointed
counsel] all happily violated the constitutional rights and liberties of my children and self to
be free from unlawful STATE intervention.
9. I [ ] natural mother of [L.K. and D.K., Jr.] have the sovereign right to parent my children
without STATE interference, the infringement of such is in violation of my Fourth, Fifth,
Sixth, Eighth, Ninth, and Fourteenth Amendments and is substantial. The Constitution ensures
my right as well as the right of my children, and family to be secure and pursue happiness.
10. The lack of procedural due process and inaccurate representation of due process of law was an
assurance for the STATE to prevail and prevent the return of my children, [L.K. and D.K.,
Jr.], to their rightful natural family.
12. No warrant or evidence of judicial authority was presented at the time of the STATE’S
interjection into [my] family in 2009. I was not charged with committing a crime nor was I
convicted of such yet my children and I, our entire family has received a cruel and unusual
life altering sentence. Protections against this should be found in the Fourth Amendment,
Eighth Amendment, Fourteenth Amendment, and Title 42 of the United States Constitution.
17. [T]he termination of my parental rights is unconstitutional.
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18. [T]he proceedings were taking place in an unconstitutional court of law.
21. All of our God-given, sovereign, and constitutionally protected civil rights have been grossly
violated.
24. These judges are, aiding and abetting heinous crimes committed by supposed state authorities.
[The trial court’s] failure to abide by the constitutional provisions which are in effect for the
sole purpose of protecting my sovereignty from STATE and government interference makes
[the trial court] criminally responsible and negligent in [its] duties. [The trial court] has failed
to protect innocent citizens, with malicious intent to conceal evidence, and complete
indifference to preserving the Constitutional rights of [my family].
D.R.K., Sr.’s constitutional complaints are also set out below as they appear in his brief:
1. [The trial court] erred in [its] final decision to terminate my parental rights to my children,
[L.K. and D.K., Jr.], with full acknowledgment of the constitutional, civil, and God given
violations being committed in the [trial court], by facilitating and participating in unethical
practices under the color of law in collusion with the [Department] and other STATE paid
representatives, to obtain permanent managing conservatorship of my children for the sole
purpose of unrelated adoption to the STATE. This is comparable to a ―legal‖ kidnapping and
is not the first offense committed to this [family] by the STATE.
2. The lack of procedural due process at the final hearing and throughout the case is substantial.
My public appointed counsel [ ] had minimal contact with me throughout the case after her
assignment and waived my opportunity to make a final record, therefore I was unable to
defend, counter, or clarify any of the accusations made against me which have now been
rendered as factual. I was not afforded the opportunity by my counsel to present witnesses or
evidence in my defense, or in defense of my family.
9. I [ ] natural father of [L.K. and D.K., Jr.] do have a sovereign right to parent and raise my
children without STATE interference. This infringement of such is in substantial violation of
my fourth, fifth, sixth, eighth, ninth, [and] fourteenth amendment protections, and the United
States Constitution in general, all of which ensure my right to be secure and pursue happiness.
10. The STATE’S violation of due process of law and its lack of procedural due process was an
assurance for its victory in this case to terminate my parental rights and prevent the return of
my children, [L.K. and D.K., Jr.] to their rightful, natural family.
11. The exculpatory evidence withheld is an example of ineffectiveness and is a violation of due
process. Withheld evidence by retained [and appointed counsel for myself and C.P.K.]
include drug test results (performed without our knowledge or consent) on my wife [ ] and
son, [D.K., Jr.], at Hopkins County Memorial Hospital in Hopkins County on about October
14, 2009. Copies obtained directly from said hospital do not appear to be consistent with the
initial allegations made by the [Department]. This result has never been produced for review
by me. Other evidence includes the knowledge that my children were actually residing in my
home during the entire time of kinship placement with family friends . . . . It should be noted
that no abuse or neglect is alleged to have occurred during this time.
12. There were no warrants or evidence of judicial authority was presented by the STATE at the
time of its interjection into my family in 2009. My wife and I were only presented with a case
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worker full of threats to separate our children from us. I was not and still have not been
charged with a crime, nor has my wife, or my children. We have not been convicted of
committing any crime against our children or our children against us, yet I, and my entire
family has been subjected to a cruel and unusual punishment, being forced to pay a sentence.
The protections against this are found in the fourth, eighth, fourteenth amendments, as well as
Title 42 of the United States Constitution.
17. [I]t is unconstitutional for my parental rights to be terminated especially for the sole purpose
of placing my children with strangers instead of their own natural family.
Rule 38.1 of the Texas Rules of Appellate Procedure sets forth what must be included in
an appellant's brief. See TEX. R. APP. P. 38.1. Rule 38.1(i) requires that an appellant's brief
―contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.‖ TEX. R. APP. P. 38.1(i). The appellate court has no duty to brief
issues for an appellant. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.).
The failure to provide appropriate record citations or a substantive analysis waives an appellate
issue. WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (holding that failure to offer argument, citations to
record, or citations to authority waives issue on appeal); Med. Specialist Group, P.A. v.
Radiology Assocs ., L.L.P., 171 S.W.3d 727, 732 (Tex. App.—Corpus Christi 2005, pet. denied)
(same); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex.
1994) (holding appellate court has discretion to deem points of error waived due to inadequate
briefing). References to sweeping statements of general law are rarely appropriate. Bolling v.
Farmers Branch Ind. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.).
Appellate courts must construe briefing requirements reasonably and liberally, but a party
asserting error on appeal still must put forth some specific argument and analysis showing that
the record and the law support their contentions. San Saba Energy, L.P. v. Crawford, 171
S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Although we liberally construe pro se briefs, litigants who represent themselves are held
to the same standards as litigants represented by counsel. See Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184–85 (Tex. 1978); Shull v. United Parcel Svc., 4 S.W.3d 46, 52-53 (Tex.
App.—San Antonio 1999, pet. denied). To hold otherwise would give pro se litigants an unfair
advantage over litigants who have an attorney. Cohn, 573 S.W.2d at 185; Shull, 4 S.W.3d at 53.
Moreover, an appellate court has no duty—or even right—to perform an independent review of
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the record and applicable law to determine whether there was error. Valadez v. Avitia, 238
S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Were we to do so, even on behalf of a pro
se appellant, we would be abandoning our role as neutral adjudicators and become an advocate
for that party. Id. Therefore, we will not make allowances or apply different standards simply
because a case is presented by a litigant acting without the advice of counsel. Id.
In their constitutional complaints, Appellants do not provide any citations to the record,
any argument, or any citations to authority in support of these complaints. Frequently,
Appellants contend that the trial court’s action was ―unconstitutional‖ without referring to any
particular constitutional provision or providing any other legal authority or analysis to support
their claims. See Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no
pet.) (stating that ―merely uttering brief conclusory statements‖ is not a discussion of the facts
and authorities relied upon contemplated by Rule 38). In the absence of any legal analysis,
citations to the record, and citations to appropriate authorities, Appellants present nothing for our
review regarding their constitutional complaints. See WorldPeace, 183 S.W.3d at 460; Med.
Specialist Group, 171 S.W.3d at 732.
Moreover, as a predicate to presenting a complaint on appeal, the complaining party must
have preserved the error at trial by a proper request, objection, or motion stating the grounds for
the ruling that the party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, and then securing a ruling on the request, objection, or motion.
See TEX. R. APP. P. 33.1(a)(1)(A), (2); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.
App. 1991). Appellate review of potentially reversible error in a parental termination case never
presented to a trial court undermines the legislature's dual intent to ensure finality in these cases
and expedite their resolution. In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003). A court of
appeals must not retreat from error preservation standards to review unpreserved constitutional
error in parental rights termination cases. See id. at 355. Here, Appellants did not complain to
the trial court that their constitutional rights had been violated. Consequently, Appellants waived
these issues on that basis as well. See TEX. R. APP. P. 33.1(a)(1)(A), (2).
Accordingly, we overrule C.P.K.’s first, fourth, ninth, tenth, twelfth, seventeenth,
eighteenth, twenty-first, and twenty-fourth issues, and the portion of her second issue that
pertains to her constitutional complaints. We also overrule D.R.K., Sr.’s ninth, tenth, twelfth,
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and seventeenth issues, and the portion of his first, second, and eleventh issues that pertains to
his constitutional complaints.
COMPLAINTS AGAINST COUNSEL
In her third and eleventh issues, and part of her second issue, C.P.K. complains about her
trial counsel. Similarly, in his third issue, and part of his second and eleventh issues, D.R.K., Sr.
complains about his trial counsel. More specifically, Appellants complain that they were unable
to defend or counter statements made against them at trial because their respective trial attorneys
did not allow them to testify or waived their opportunity to testify. Both argue that their retained
and appointed trial attorneys withheld exculpatory evidence that would have refuted allegations
made by the Department. In his fourth issue, D.R.K., Sr. argues that he received ineffective
assistance of counsel from his retained attorney. He contends that his retained attorney agreed
to represent him and his wife, C.P.K., did ―minimal to ward off STATE interference,‖ and
perpetuated a conflict of interest between him and his wife, enabling his retained attorney to
―release our case to public defenders.‖
Appellants do not provide any argument, citations to the record, or citations to any
authority in support of the reasons they contend their retained or appointed attorneys rendered
ineffective assistance of counsel. See TEX. R. APP. P. 38.1(i). In the absence of any legal
analysis, citation to the record, and citation to appropriate authorities, Appellants present nothing
for our review regarding their complaints. See WorldPeace, 183 S.W.3d at 460; Med. Specialist
Group, 171 S.W.3d at 732.
However, even if we reviewed Appellants’ complaints about their trial attorneys, which
we construe as a contention that their attorneys rendered ineffective assistance of counsel, they
still could not prevail. Under the first prong of the United States Supreme Court’s two prong test
for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), it is Appellants’ burden to overcome the presumption that, under the
circumstances, the challenged actions might be considered sound trial strategy. See Strickland,
466 U.S. at 689, 104 S. Ct. at 2065; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d
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808, 813 (Tex. Crim. App. 1999). But Appellants did not file timely motions for new trial and
call their trial attorneys as witnesses to explain their reasoning. See Bone v. State, 77 S.W.3d
828, 836 (Tex. Crim. App. 2002) (stating that defense counsel should be given opportunity to
explain actions before being condemned as unprofessional and incompetent); see also Anderson
v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding that
because appellant did not call his trial counsel during motion for new trial hearing to give
reasons for failure to call any witnesses, record does not support ineffective assistance claim).
Because the record does not show deficient performance, we conclude that Appellants failed to
meet the first prong of the Strickland test. See Thompson, 9 S.W 3d at 813.
Accordingly, we overrule C.P.K.’s third and eleventh issues, and the remaining portion of
her second issue, which pertains to ineffective assistance of counsel. We also overrule D.R.K.,
Sr.’s third and fourth issues, and the remaining portion of his second and eleventh issues, which
pertains to ineffective assistance of counsel.
COMPLAINTS CHALLENGING THE JUDGMENT
In her seventh and nineteenth issues, C.P.K. challenges the judgment of the trial court. In
his eighteenth issue, and part of his first and seventh issues, D.R.K., Sr. also challenges the
judgment of the trial court. C.P.K.’s challenges to the judgment are set out below as they appear
in her brief:
7. [The trial court] has heard this entire case and made [its] final order, findings of fact, and
determined the conclusion of law yet is not the judge recorded as validating such. This raises
further concerns and questions as to the final order’s actual legality and any unethical
practices of [the trial court] in this case.
19. I [ ] have not abused or neglected any of my children. Although allegations of such cruelty
exist, no actual evidence or proof of such malice has EVER been presented.
D.R.K., Sr.’s challenges to the judgment are also set out below as they appear in his brief:
1. [The trial court] erred in [its] final decision to terminate my parental rights to my children.
7. The determination of [the trial court’s] final decision to terminate my parental rights and place
my children outside of their capable, willing, natural grandparents after allowing them to take
part in this case from its shameful beginning and participating through its entirety, then not
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being the judge recorded as signing such order is further indication of fraud, collusion, and
unethical practices for gain by the STATE. The legality of this final decision is even more
questionable.
18. The STATE has not proven beyond a shadow of a doubt that my wife or I have ever abused or
neglected my children. It is not in my children’s best interests to be shuffled through the foster
care system and it is not necessary.
Appellants do not provide any argument, citations to the record, or citations to any
authority in support of the reasons they contend the trial court erred in finding, by clear and
convincing evidence, that Appellants had engaged in one or more of the acts or omissions
necessary to support termination of their parental rights, and that termination of the parent-child
relationship between Appellants and the children was in the children’s best interest. See TEX. R.
APP. P. 38.1(i). In the absence of any legal analysis, citation to the record, and citation to
appropriate authorities, Appellants present nothing for our review regarding their complaints.
See WorldPeace, 183 S.W.3d at 460; Med. Specialist Group, 171 S.W.3d at 732.
Further, as a predicate to presenting a complaint on appeal, the complaining party must
have preserved the error at trial by a proper request, objection, or motion stating the grounds for
the ruling that the party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, and securing a ruling on the request, objection, or motion. See
TEX. R. APP. P. 33.1(a)(1)(A), (2); Ethington, 819 S.W.2d at 858. At the conclusion of the
evidence at trial, the trial court orally stated its ruling regarding termination of the parent-child
relationship, but stated that ―I’m not going to be here‖ when informing the parties of specific
time limits for appellate purposes. Approximately one month later, another judge signed the
order of termination. However, Appellants did not complain to the trial court regarding this
issue. Therefore, they have waived this complaint on that basis as well. See TEX. R. APP. P.
33.1(a)(1)(A), (2).
Accordingly, we overrule C.P.K.’s seventh and nineteenth issues. We also overrule
D.R.K., Sr.’s eighteenth issue, the remaining portion of his first issue, which relates to the trial
court’s judgment, and the portion of his seventh issue that pertains to the trial court’s judgment.
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CONSERVATORSHIP OF THE CHILDREN
In C.P.K.’s sixth issue and D.R.K., Sr.’s fifth issue, they contend that trial court erred in
denying conservatorship of the children to the paternal grandfather and paternal
stepgrandmother, intervenors. An appealing party may not complain of errors that do not
injuriously affect it or that merely affect the rights of others. Torrington Co. v. Stutzman, 46
S.W.3d 829, 843 (Tex. 2000). The right to appeal rests only in an aggrieved party to a lawsuit.
Cnty. of El Paso v. Ortega, 847 S.W.2d 436, 442 (Tex. App.—El Paso 1993, no writ) (citing S.
Nat'l Bank of Houston v. City of Austin, 582 S.W.2d 229, 235 (Tex. Civ. App.—Tyler 1979,
writ ref'd n.r.e.)). As parties to the trial court’s judgment, the intervenors could have perfected
their own appeal, but they did not do so. Appellants may not raise this issue when the
intervenors have not raised the complaint themselves. Accordingly, we overrule C.P.K.’s sixth
issue and D.R.K., Sr.’s fifth issue.
COMPLAINTS AGAINST THE
TRIAL COURT AND THE DEPARTMENT
In her fifth, eighth, thirteenth, fourteenth, fifteenth, sixteenth, twentieth, twenty-second,
twenty-third, and twenty-fifth issues, C.P.K. makes various complaints against the trial court and
the Department, including fraud, deception, collusion, allowing hearsay evidence, unethical
practices, ―making law from the bench,‖ defamation, misrepresentation of lawful authority, and
―aiding and abetting [of] heinous crimes.‖ In his sixth, eighth, thirteenth, fourteenth, fifteenth,
sixteenth, nineteenth, twentieth, and twenty-first issues, and part of his seventh issue, D.R.K., Sr.
makes various complaints against the trial court and the Department, including fraud, allowing
―inaccurate, slanderous, opinionated, [and] fragmented‖ evidence, misrepresentation of lawful
authority, unethical practices, ―making law from the bench,‖ deception, collusion, and ―aiding
and abetting crimes.‖
Although Appellants provided some citations to authority, they did not provide any
argument or citations to the record in support of their contentions. See TEX. R. APP. P. 38.1(i).
In the absence of any legal analysis, citations to the record, and, in all but four or five of their
issues, citation to authorities, Appellants present nothing for our review regarding their
complaints. See WorldPeace, 183 S.W.3d at 460; Med. Specialist Group, 171 S.W.3d at 732.
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Moreover, as a predicate to presenting a complaint on appeal, the complaining party must
have preserved the error at trial by a proper request, objection, or motion stating the grounds for
the ruling that the party sought from the trial court with sufficient specificity to make the trial
court aware of the complaint, and securing a ruling on the request, objection, or motion. See
TEX. R. APP. P. 33.1(a)(1)(A), (2); Ethington, 819 S.W.2d at 858. Appellants did not complain
to the trial court about any of these alleged errors at trial. Therefore, they have waived these
issues on that basis as well. See TEX. R. APP. P. 33.1(a)(1)(A), (2).
Accordingly, we overrule C.P.K.’s fifth, eighth, thirteenth, fourteenth, fifteenth,
sixteenth, twentieth, twenty-second, twenty-third, and twenty-fifth issues. We also overrule
D.R.K., Sr.’s sixth, eighth, thirteenth, fourteenth, fifteenth, sixteenth, nineteenth, twentieth, and
twenty-first issues, and the remaining portion of his seventh issue, which pertains to his
additional complaints about the trial court and the Department.
DISPOSITION
Having overruled all of Appellants’ issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered December 20, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 20, 2012
NO. 12-11-00169-CV
IN THE INTEREST OF L.K. AND D.K., JR., CHILDREN
Appeal from the 402nd Judicial District Court
of Wood County, Texas. (Tr.Ct.No. 2009-690)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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