in the Interest of J. M., J. J., J. J. and J. J., Children ( 2008 )


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  •                                   NO. 12-07-00371-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    §            APPEAL FROM THE 173RD
    IN THE INTEREST OF J.M., J.J.,
    §            JUDICIAL DISTRICT COURT OF
    J.J. AND J.J., CHILDREN
    §            HENDERSON COUNTY, TEXAS
    MEMORANDUM OPINION
    K.L. Joyce appeals the trial court’s final order in a conservatorship and termination
    proceeding brought by the Texas Department of Family and Protective Services (“DFPS”). In two
    issues, Appellant asserts that the trial court erroneously failed to dismiss the proceeding in question
    and that the evidence was insufficient to support the trial court’s final order. We affirm.
    APPELLATE REVIEW OF SUBCHAPTER E FINAL ORDERS
    Chapter 263, subchapter E, of the Texas Family Code governs final orders in conservatorship
    and termination proceedings in cases involving children under DFPS care. See In re A.J.K., 
    116 S.W.3d 165
    , 169-70 (Tex. App.–Houston [14th Dist.] 2003, no pet.). As applicable to this appeal,
    a final order under subchapter E is one that (1) requires the child to be returned to the child’s parent;
    (2) names a relative of the child or another person as the child’s managing conservator; (3) without
    terminating the parent-child relationship, appoints DFPS as the managing conservator of the child;
    or (4) terminates the parent-child relationship and appoints a relative of the child, another suitable
    person, or DFPS as managing conservator of the child. See 
    id. at 170-71
    (addressing repealed Texas
    Family Code section 263.401(d)). Here, the final order terminated the parent-child relationship
    between Joyce and four children under DFPS care and appointed DFPS as managing conservator of
    the children. Therefore, this order is a final order rendered under subchapter E. See 
    id. Texas Family
    Code section 263.405 requires an appellant seeking review of a subchapter E
    final order to file with the trial court, no later than fifteen days after the final order is signed, a
    statement of points on which the appellant intends to appeal. TEX . FAM . CODE ANN . § 263.405(b)
    (Vernon Supp. 2007).1 The statement may be filed separately or may be combined with a motion
    for new trial. 
    Id. An appellate
    court may not consider any issue that was not specifically presented
    to the trial court in a timely filed statement of points. TEX . FAM . CODE ANN . § 263.405(i) (Vernon
    Supp. 2007). While a statement of points may be combined with a motion for new trial, a motion for
    new trial that does not include such a statement of points is not sufficient to allow appellate review
    of a subchapter E final order. See 
    id. The final
    order in this case was signed on September 12, 2007, following which Appellant
    filed a motion for new trial. Appellant did not file the required statement of points separately or
    include a statement of points in her motion for new trial. Accordingly, we cannot consider any of
    the issues Appellant has raised on appeal. See 
    id. Further, the
    constitutionality of section 263.405’s
    statement of points requirement is not before us and we have not previously addressed such an issue
    on its merits.2
    DISPOSITION
    We cannot consider the issues Appellant has raised on appeal. Therefore, we affirm the trial
    court’s order.
    BRIAN HOYLE
    Justice
    Opinion delivered June 30, 2008.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (PUBLISH)
    1
    Because it is unnecessary to do otherwise, we have cited to the most current version of this statute.
    2
    W e have twice declined to address this issue of constitutionality because the concerns brought by the
    respective appellants were merely hypothetical and not yet ripe. See In re T.D.M ., No. 12-07-00458-CV, 2008 W L
    2122601, at *2 (Tex. App.–Tyler M ay 21, 2008, no pet. h.); In re R.D.G., No. 12-07-00322-CV, 2008 W L 2122413,
    at *2 (Tex. App.–Tyler May 21, 2008, no pet. h.).
    2
    

Document Info

Docket Number: 12-07-00371-CV

Filed Date: 6/30/2008

Precedential Status: Precedential

Modified Date: 9/10/2015