In re L.C.W.

411 S.W.3d 116

In The Interest of L.C.W., a Child.

No. 08–11–00247–CV.

Court of Appeals of Texas, El Paso.

Aug. 21, 2013.

Thomas E. Stanton, Patrick A. Lara, Law Office of Patrick Lara, El Paso, TX, for Appellant.

Cynthia A. Morales, Office of General Counsel, Austin, TX, for Appellee.

Mark B. Mainwaring, El Paso, TX, Attorney Ad Litem.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

GUADALUPE RIVERA, Justice.

Appellants, T.W. (father) and M.C.J. (mother), appeal from a judgment terminating their parental rights to their child L.C.W.¹ T.W.'s sole issue on appeal is that the trial court erred in finding his points for appeal frivolous pursuant to Section 263.405(b) of the Texas Family Code. He contends that (1) the trial court improperly limited him from using the words “waiver” and “estoppel” in his closing argument, (2) the trial court violated his due process rights by denying his motion for continuance, (3) the evidence was factually insufficient to support the jury's best interest finding, and (4) the evidence was legally insufficient to support the jury's best interest finding. M.C.J. raises two issues in which she argues the trial court erred in finding her points of error for appeal frivolous. In a third issue, M.C.J. asserts that her trial counsel rendered ineffective assistance. We affirm.

BACKGROUND

On March 4, 2010, the Texas Department of Family and Protective Services (the Department) filed a petition to terminate the parental rights of T.W. and M.C.J. After a jury trial, the trial court accepted the jury's findings and entered an order terminating the parental rights of T.W. and M.C.J. on July 29, 2011. The Department was appointed as the permanent managing conservator of L.C.W.

On August 9, 2011, T.W. filed a notice of appeal and a statement of points of error. In his points of error, T.W. complained about the trial court's failure to properly instruct the jury on the doctrines of waiver, estoppel, coercion, and release, the denial of his motion to continue, and the factual and legal sufficiency of the evidence. On August 11, 2011, appellate counsel for M.C.J. entered an appearance and filed M.C.J.'s notice of points on appeal. M.C.J.'s notice of points on appeal mirror T.W.'s points of error. On August 17, 2011 and August 26, 2011, the trial court conducted hearings pursuant to section 263.405(d) of the Texas Family Code. After considering the testimony and arguments of the parties, the trial court found that the points of appeal raised by T.W. and M.C.J. were frivolous. T.W. filed a notice of appeal from the trial court's frivolousness determination on September 2, 2011. The record reflects that M.C.J. did not file a notice of appeal.

DISCUSSION

JURISDICTION

We begin by addressing the Department's complaint that we do not have jurisdiction to consider M.C.J.'s appeal because she failed to file a notice of appeal. An appeal from an order terminating parental rights is accelerated. Tex. Fam.Code Ann. § 263.405(a) (West 2008). In an accelerated appeal, the notice of appeal must be filed with the trial court clerk within 20 days of the date the order is signed in order for the appeal to be perfected. Tex.R.App. P. 25.1, 26.1(b). The Texas Rules of Appellate Procedure are construed reasonably and liberally so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex.1997). Further, we have jurisdiction over an appeal if the appellant timely files an instrument that is a bona fide attempt to invoke the appellate court's jurisdiction. In re K.A.F., 160 S.W.3d 923, 927 (Tex.2005); In re B.G., 104 S.W.3d 565, 567–68 (Tex.App.-Waco 2002, no pet.) (a bona fide attempt at appeal sufficiently invokes appellate jurisdiction even if defective); see also Grand Prairie ISD v. Southern Parts Imps., Inc., 813 S.W.2d 499, 500 (Tex.1991).

The trial court's termination order was entered on July 29, 2011. M.C.J.'s notice of appeal was due no later than August 18, 2011. Tex.R.App. P. 25.1, 26.1(b). On August 11, 2011, M.C.J. filed a “Notice of Points on Appeal of Termination of Parental Rights.” The record reflects that M.C.J. failed to file a separate instrument titled “notice of appeal.” Accordingly, we must determine whether her notice of points on appeal sufficiently invoked this Court's jurisdiction.

Appellate courts have jurisdiction over any appeal where the appellant files an instrument that was filed in a bona fide attempt to invoke the jurisdiction of the courts of appeals. In re J.M., 396 S.W.3d 528, 529–30 (Tex.2013). In Coey v. Texas Dept. of Family and Protective Services, the Austin Court of Appeals held that a statement of points on appeal filed within the period for filing motion to extend time to file notice of appeal sufficiently invoked appellate court's jurisdiction. Coey v. Texas Dept. of Family and Protective Services, No. 03–05–00679–CV, 2006 WL 1358490, at *1–2 (Tex.App.-Austin May 19, 2006, no pet.) (mem. op., not designated for publication). Because the extreme nature of a termination of parental rights proceeding may result in the permanent severance of the relationship between parent and child, we are compelled to agree with our sister court's holding in Coey.

M.C.J.'s notice of points on appeal asks the trial court to find her notice timely and sets forth the specific grounds for appeal. We construe the language contained in M.C.J.'s notice of points on appeal as a bona fide attempt to invoke appellate jurisdiction, even if it is deficient under Tex.R.App. P. 25.1(d). See In re B.G., 104 S.W.3d at 567. Although M.C.J. failed to file the “notice of appeal,” M.C.J.'s notice of points on appeal was timely filed and its contents indicate a bona fide attempt to invoke the appellate court's jurisdiction, as such her notice of points on appeal was sufficient to invoke this Court's jurisdiction. See Coey, 2006 WL 1358490, at*1; see also In re K.A.F., 160 S.W.3d at 927;Verburgt, 959 S.W.2d at 616 (when an arguable interpretation of the Rules of Appellate Procedure would preserve the appeal, an appeal should not be dismissed for a procedural defect).

THE TRIAL COURT'S FRIVOLOUSNESS FINDING

We now turn to the merits of Appellants' issues, namely, whether the trial court erred in finding their points of appeal to be frivolous. Where possible, we address Appellants' issues together.

Standard of Review

A party wishing to appeal a final order terminating parental rights must file points of appeal with the trial court, which must then hold a hearing and determine whether the appeal is frivolous as set forth in Section 13.003(b) of the Civil Practices and Remedies Code. Tex. Fam.Code Ann. § 263.405(b), (b–1), (d)(3); Tex. Civ. Prac. & Rem.Code Ann. § 13.003(b) (West 2002). In making its determination regarding whether an appeal is frivolous, “a judge may consider whether the appellant has presented a substantial question for appellate review.” Tex. Civ. Prac. & Rem.Code Ann. § 13.003(b); D.R. v. Tex. Dept. of Family and Protective Servs., 281 S.W.3d 598, 602 (Tex.App.-El Paso 2008, no pet.).

Before considering the substantive merits of an appeal from an order terminating parental rights in which the trial court found the point or points of error to be frivolous, we must first consider whether the trial court properly found the appeal to be frivolous. In re A.B., 269 S.W.3d 120, 124 (Tex.App.-El Paso 2008, no pet.). An appeal which lacks an arguable basis in law or in fact is frivolous. D.R., 281 S.W.3d at 602. When reviewing a trial court's finding that a party's point of appeal of a final order is frivolous, we utilize an abuse of discretion standard. In re A.B., 269 S.W.3d at 124. The test for determining whether an abuse of discretion has occurred is, did the court act contrary to the guiding rules or principles? Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985), cert. denied,476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Green v. Texas Dept. of Protective and Regulatory Servs., 25 S.W.3d 213, 218 (Tex.App.-El Paso 2000, no pet.). That is, we consider whether the trial court's action was arbitrary or unreasonable. Downer, 701 S.W.2d at 242–43;Green, 25 S.W.3d at 218.

LIMITATION OF CLOSING ARGUMENT

In his first sub-issue, T.W. argues that the trial court improperly limited his closing argument by not permitting him to use the terms “waiver, estoppel, and release.” The Department contends that T.W. has failed to preserve his complaint for appellate review because he did not raise it in a timely-filed statement of points. We agree.

Under Section 263.405(i), an appellate court may not consider any issue that was not specifically presented to the trial court in a timely statement of points. Tex. Fam.Code Ann. § 263.405(i). The statement of points must be filed within fifteen days of the entry of the final order. Id. § 263.405(b). The trial court may extend the deadline for filing a statement of points upon a showing of good cause. In re M.N., 262 S.W.3d 799, 803–04 (Tex.2008). Where a party fails to address an issue in a statement of points, the issue is waived on appeal. See In re J.H.G., 302 S.W.3d 304, 306 (Tex.2010); Hernandez v. Texas Dep't of Family & Prot. Servs., No. 03–10–00061–CV, 2011 WL 2139077, at *1 (Tex.App.-Austin May 27, 2011, no pet.) (mem. op., not designated for publication) (declining to consider issue that trial court erred by limiting appellant's counsel's presentation to venire because it was not raised in a timely statement of points).

It is undisputed that the statement of points T.W. filed on August 9, 2011 was timely. However, T.W.'s statement of points did not complain of the trial court's limitation on his closing argument, but instead challenged the trial court's failure to properly instruct the jury as to the doctrines of waiver, estoppel, coercion, and release. The record reflects that during the section 263.405(d...