In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00102-CV
______________________________
IN THE INTEREST OF D.C. AND D.C., CHILDREN
On Appeal from the 173rd Judicial District Court
Henderson County, Texas
Trial Court No. 2009A-502
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Frances and James, biological parents of D.C. and D.C., have had their parental rights
terminated as to those children, each based on multiple grounds. Each parent’s appeal fails due to
procedural or structural failings, without reference to any substantive issues. We must affirm the
trial court’s judgment as to each parent because (1) Frances’ statement of points on appeal does not
preserve her claims for review, and (2) James does not challenge some of the independent grounds
for termination.
(1) Frances’ Statement of Points on Appeal Does Not Preserve Her Claims for Review
Frances provided a single point of appeal in her amended motion for new trial:
[T]he judgment signed and entered herein on August 27, 2010 is contrary to the law
and the evidence in that the evidence was insufficient to prove the grounds for
termination of Movant’s parental rights under the heavy burden required by the law
for such termination. Movant’s Points of Appeal are the same grounds, i.e., failure
of the Petitioner to produce sufficient evidence to legally prove the alleged grounds
for termination.
We may not consider ―any issue not presented to the trial court in a timely filed statement of
points.‖ See In re J.O.A., 283 S.W.3d 336, 341 (Tex. 2009). In a statement of points, ―a claim
that a judicial decision is contrary to the evidence or that the evidence is factually or legally
insufficient is not sufficiently specific to preserve an issue for appeal.‖ TEX. FAM. CODE ANN.
§ 263.405(i) (Vernon 2008). Frances’ generic claim of factual insufficiency set out above is the
type of point at which the statute is directed, and is insufficient to allow this Court to review her
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point.1
In her brief, Frances raises a number of ways in which she believes the evidence is
insufficient to support various findings by the jury. Under Section 263.405(i) of the Texas
Family Code, we are not allowed to address her complaints. 2 As all of the issues raised by
Frances are attacks on the sufficiency of the evidence to support termination, we must therefore
affirm the termination as to her.
(2) James Does Not Challenge Some of the Independent Grounds for Termination
James provided a much more extensive, and therefore sufficient, statement of points to be
raised on appeal. In his brief on appeal, James contends that the trial court abused its discretion
by commenting on the weight of evidence in a jury instruction given over James’ objection:
In this connection you are instructed that the fact that James . . . knowingly engaged
in criminal conduct that has resulted in his conviction of an offense and
confinement or imprisonment has been established as a matter of law.
1
The tougher cases seem to draw the line between a too-general statement of points and one that is sufficiently specific
to satisfy the statute by requiring that a statement at least focus the evidentiary-sufficiency attack on specific
subsections of Section 161.001(1) of the Texas Family Code or to the specific violative behavior or fact issue as to
each predicate finding being attacked on appeal. See, e.g., In re J.J.C., 302 S.W.3d 436 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied) (insufficient to refer to only ―both grounds for termination‖); In re J.S., 291 S.W.3d 60 (Tex.
App.—Eastland 2009, no pet.) (sufficient to refer to subsection (O) of Section 161.001(1)); In re S.B., 207 S.W.3d 877
(Tex. App.—Fort Worth 2006, no pet.) (sufficient to refer to subsections (D) and (E)); In re A.J.H., 205 S.W.3d 79
(Tex. App.—Fort Worth 2006, no pet.) (sufficient to refer to subsections (D), (E), and (N)).
2
There is a limited exception to Section 263.405(i). In the case of J.O.A., the high court held ―that an ineffective
assistance of counsel claim can be raised on appeal despite the failure to include it in a statement of points.‖ 283
S.W.3d at 339. The court went on to find Section 263.405(i) unconstitutional as applied when it precludes a parent
from raising a meritorious complaint about the insufficiency of the evidence supporting the termination order—as
used to meet the second prong of Strickland by showing harm. In re B.G., 317 S.W.3d 250 (Tex. 2010) (right to
record despite lack of statement of points—necessary to show counsel was ineffective).
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James also contends that his rights were violated because he was not informed or
admonished––when he had, some years earlier, accepted a plea offer in a criminal case for
indecency with a child by contact––that, because of his plea, his parental rights could be subject to
restriction or termination. These issues are also set out in his statement of points for appeal, and
thus are preserved for review.
We find, however, that we must affirm the termination as to James, in spite of his
complaints on appeal.3
The jury found that, in support of the request to terminate James’ parental rights, the State
had proved four alleged predicate findings—under subsections (C), (N), (O), and (Q) of Section
161.001(1)—of the six that had been alleged, in addition to the mandatory finding that termination
would be in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(1)(C), (N), (O),
(Q), (2) (Vernon Supp. 2010). James has attacked on appeal only the final predicate finding,
under subsection (Q), and has not attacked the best-interest finding. Only one predicate finding
under Section 161.001(1) is necessary to support a judgment of termination, when there is also a
finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex.
2003); In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). ―If multiple
3
We do not, by so doing, suggest that the instruction was proper. In fact, under controlling caselaw, it appears that it
was not. An instruction, even though a correct statement of the law, may still be error if it is a comment on the weight
of the evidence. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000); see Acord v. Gen. Motors Corp., 669 S.W.2d 111, 116
(Tex. 1984). To constitute a comment on the weight of the evidence, the instruction must indicate the trial court’s
opinion on the truth of the matter in question. Crenshaw v. Kennedy Wire Rope & Sling Co., 327 S.W.3d 216, 223
(Tex. App.—San Antonio 2010, pet. granted); Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 671 (Tex.
App.—Houston [1st Dist.] 1996, no writ); Harris v. Gen Motors Corp., 924 S.W.2d 187, 188 n.1 (Tex.
App.—San Antonio 1996, writ denied).
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predicate grounds are found by the trial court, we will affirm based on any one ground because
only one is necessary for termination of parental rights.‖ In re D.S., No. 07-10-00184-CV, 2011
WL 222218, at *8 (Tex. App.—Amarillo Jan. 25, 2011, no pet. h.) (citing In re S.N., 272 S.W.3d
45, 49 (Tex. App.—Waco 2008, no pet.); Perez v. Tex. Dep’t of Protective & Regulatory Servs.,
148 S.W.3d 427, 434 (Tex. App.—El Paso 2004, no pet.); In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Because the jury findings as reflected in the judgment
with respect to Section 161.001(1)(C), (N), and (O) are unchallenged, and each supports the order
of termination, it is unnecessary to review James’ arguments as to the other grounds. See In re
D.P.R.V., No. 04-09-00644-CV, 2010 WL 2102989, at *1 (Tex. App.—San Antonio May 26,
2010, no pet.) (mem. op.) (citing A.V., 113 S.W.3d at 362); D.S., 2011 WL 222218, at *8; S.N., 272
S.W.3d at 49; Perez, 148 S.W.3d at 434; L.M., 104 S.W.3d at 647.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 8, 2011
Date Decided: March 1, 2011
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