In re S.K.A.

Decision Date17 October 2007
Docket NumberNo. 06-07-00003-CV.,06-07-00003-CV.
Citation236 S.W.3d 875
PartiesIn the Interest of S.K.A., M.A., and S.A., Minor Children.
CourtTexas Court of Appeals

Lew Dunn, Law Office of Lew Dunn, Longview, TX, for appellant.

W. Ty Wilson, Asst. Dist. Atty., Longview, TX, for appellee.

Michael Lewis, Kevin Settle, Longview, TX, for ad litem.



Opinion by Justice CARTER.

Chad1 appeals from a default judgment terminating his parental rights to his three minor children. At the time of default, Chad was incarcerated in Mississippi. Chad never had an attorney at the trial to terminate his parental rights and even though he had requested the appointment of counsel, counsel was not appointed until after the statement of points deadline for preservation of error in parental rights termination cases had passed. See TEX. FAM.CODE ANN. § 263.405 (Vernon Supp. 2006). Chad raises six issues on appeal—three constitutional challenges to the procedure for appealing parental rights termination cases and three on the merits and procedure below.

I. General and Procedural Background

In September 2005, the State became aware of possible neglect of then-seven-year-old S.K.A., and then-two-year-old twins M.A. and S.A. by their mother (Ashley) and Ashley's paramour. Although Ashley and Chad were still married,2 Chad was in Mississippi.3 After several months of Ashley's unsatisfactory progress, the State petitioned, on February 9, 2006, to remove the three children from Ashley and her paramour, and for termination of Ashley's and Chad's parental rights.4

Chad was served with citation February 15, 2006, in Mississippi. Chad was not present at the adversary hearing February 17, 2006, though the judge noted that Chad had "called my court coordinator and indicated that he had just recently learned of the case and was not able to appear, but left a number for counsel to reach him in the future." The record contains no further indication of contact between Chad and the court until December 2006, although the court held numerous hearings regarding Ashley in the interim.

On July 11, 2006, the court ordered a termination trial for December 11, 2006. On September 5, 2006, the assistant district attorney (A.D.A.) prosecuting the termination attempted to notify Chad of the December hearing, but the notice was returned by the Mississippi Department of Corrections with a notation that Chad was at a different prison unit. The A.D.A., on district attorney letterhead, sent a second notice of the December 11 hearing to Chad. On October 8, Chad responded—not to the court, but to the A.D.A. who had sent the notice—seeking a postponement. The State did not bring this letter ("October 8 letter") to the attention of the court until it introduced the October 8 letter at the termination trial as evidence that Chad had received notice. The State did respond to Chad, on October 13, that it would not seek a postponement and intended to request parental rights termination.

The State sent Chad further notice, on November 16, of the pretrial hearing set for November 28 and trial on December 11. In an envelope addressed to the court clerk but with the district attorney's courthouse suite number, and postmarked December 1, 2006, Chad responded with (collectively, "December 1 letter"): (1) a letter to the judge dated November 21 noting indigence and seeking a continuance; (2) an undated letter to the judge seeking postponement, requesting counsel, noting incarceration, and rebutting certain allegations in the State's petition; (3) a sworn and notarized motion for continuance, dated December 1, which also asserted indigence, requested counsel, answered certain of the State's allegations, and raised certain defenses; and (4) a sworn and notarized affidavit of poverty, dated November 21 and notarized December 1.

The December 1 letter was received on the day of trial on December 11, but several hours after judgment. The judge entered a default judgment against Chad during the 9:40-10:45 a.m. hearing, and then proceeded to hear evidence before determining that termination of parental rights was in the children's best interests and that the statutory grounds had been proven by clear and convincing evidence. See TEX. FAM.CODE ANN. §§ 161.001(1)(D), (E), (N), 161.001(2) (Vernon Supp.2006).

There is a handwritten notation on the December 1 letter: "Dec 11 1:30 p.m." The judge stated, at the hearing on the motion for new trial, that she received the December 1 letter on the day of the trial, but after entry of judgment. She stated she treated the documents "as a request for continuance and a request for counsel, and thereupon I appointed Mr. Dunn as counsel." However, this appointment did not occur until January 2 or 3, 2007.5

In the interim, the clerk filed all of Chad's documents on December 12, the day after trial and the day after the order of termination had been entered. The clerk apparently responded to Chad on December 18, informing him that his letter had arrived after judgment. Chad responded on December 21 in letters to the judge and the clerk that he still had no counsel and reasserted indigence, requested appointment of counsel, asked that his motion be filed anyway and reconsidered, requested a copy of the record, and requested copies of the relevant law, including post-termination rights. This correspondence was not filed until January 3, 2007.

Counsel filed a notice of appeal January 3, the day he was appointed. Counsel filed "points for appeal" and a motion for new trial and to set aside default the next day (January 4). After a hearing, the court found Chad indigent, denied his motion for new trial, and found Chad presented non-frivolous grounds for appeal.

II. Family Code § 263.405(d)(3) Constitutional Challenge

Chad contends that Section 263.405(d) of the Texas Family Code6—which presents the procedure by which the trial court holds the hearing on a motion for new trial, determines indigence, and determines the frivolousness of an appeal—is unconstitutional, facially and as applied, because it reserves the frivolousness determination to the trial court instead of the court of appeals. However, in this case, the court (1) conducted a timely hearing on Chad's motion for new trial, (2) determined, as requested, that Chad was indigent, and (3) determined that Chad's appeal was not frivolous.

We are prohibited from issuing an advisory opinion, the distinctive feature of which is that it decides an abstract question of law without binding the parties. See TEX. CONST. art. II, § 1; Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex.2000); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993); Coastal Marine Serv. of Tex. v. City of Port Neches, 11 S.W.3d 509, 515 (Tex.App.-Beaumont 2000, no pet.). "The ripeness doctrine conserves judicial time and resources for real and current controversies, rather than abstract, hypothetical, or remote disputes. In this regard, the State ripeness doctrine is similar to the federal ripeness doctrine in that it has both constitutional and prudential dimensions." Mayhew, 964 S.W.2d at 928. Because Chad's constitutional challenge to subsection (d) is not ripe, we overrule this point of error.

III. Statement of Points Constitutional Challenge
A. Jurisdiction

An appellate court reviewing a termination of parental rights on the State's petition "may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal...." TEX. FAM.CODE ANN. § 263.405(i) (subsection (i)). To be timely, the statement of points must be filed within fifteen days of the date of the final order. TEX. FAM.CODE ANN. § 263.405(b) (subsection (b)).

Section 263.405, including subsection (i), does not operate, in the absence of a timely filed statement of points, to deprive this Court of jurisdiction over the appeal. In re H.H.H., No. 06-06-00093-CV, 2006 WL 2820063, at *1 (Tex.App.-Texarkana Oct.4, 2006, no pet.) (mem.op.); see also TEX. FAM.CODE ANN. § 109.002 (expressly allowing appeal to courts of appeals); TEX. FAM.CODE ANN. § 263.405(a) (Vernon Supp.2006) (same). Rather, when a parent fails to preserve a complaint in a timely filed statement of points, we are constrained to affirm that part of the judgment. See H.H.H., 2006 WL 2820063, at *1. This is the approach taken by each of the fourteen courts of appeals, who have all either expressly found that subsection (i) does not deprive appeals courts of jurisdiction,7 or, though not expressly finding subsection (i) nonjurisdictional, have affirmed on the waived or unpreserved merits rather than dismissing for lack of jurisdiction.8 But see In re C.R., No. 02-06-099-CV, 2006 WL 3114468, at *1 (Tex. App.-Fort Worth Nov. 2, 2006, no pet.) (Livingston, J., concurring) (stating that Legislature's addition of subsection (i) supersedes earlier holdings that subsection (b) is not jurisdictional).

Chad's statement of points was due, under subsection (b), December 26, 2006. It was not filed until January 4, 2007. Under these facts, we would ordinarily, per the authority above, not address Chad's points of error on appeal and affirm the judgment. Chad, however, raises a constitutional challenge to subsections (b) and (i); specifically, he urges that those sections in combination and as applied to him—an indigent parent without counsel, despite a request for statutorily mandated appointed counsel—have deprived him of the meaningful judicial review required under federal due process and Texas due course of law guarantees. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19. We are aware of the "cardinal principle" of judicial restraint that we should not address constitutional issues if it is not necessary. Van...

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