in the Interest of N.C. and J.C., Children ( 2011 )

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NO. 07-10-0087-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 18, 2011

______________________________

IN THE INTEREST OF N.C. AND J.C., CHILDREN

_________________________________

FROM COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY;

NO. 6537; HONORABLE RONNIE WALKER, JUDGE[1]

_______________________________

Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J.[2]

MEMORANDUM OPINION

            Appellant, Adam,[3] appeals the trial court's order terminating his parental rights to his children, N.C. and J.C. He asserts the trial court committed reversible error in what he categorizes as a failure to make and file findings of fact and conclusions of law. We affirm.

Factual Background

            The two children the subject of this proceeding are N.C., a female born in August of 2002, and J.C. a female born in August of 2004. Adam and K.L.[4] are the parents of N.C. and J.C. Adam and K.L. separated in 2005, and Adam retained possession of the two children. After allegations of neglectful supervision were validated against Adam by the Texas Department of Family and Protective Services (the Department), N.C. and J.C. were removed from his home and custody was awarded to his mother, D.V.[5] At that time, Adam and K.L. were granted visitation rights.

            In 2006, Adam became involved with C.J., who already had a male child, Q.W.J.[6] In July of 2007, Adam and C.J. had a daughter, S.C.[7] At that time, N.C. and J.C. were still living with D.V. By May of 2008, Adam's three biological children, N.C., J.C. and S.C., together with Q.W.J., were all residing with D.V. On May 23, 2008, while N.C. was at an appointment with her counselor, she made an allegation of abuse against C.J., which was allegedly perpetrated while the children were in the possession of Adam and C.J. The counselor and D.V. reported the alleged abuse to the Department for suspected neglectful supervision and physical abuse by C.J. against both N.C. and J.C. An investigator for Child Protective Services (CPS) was assigned to the case and interviews were conducted with the three older children and other family members.

            According to N.C., C.J. engaged in pushing her and J.C., and she would lock them out on the porch during storms as a form of punishment. Allegations were also made that C.J. shook S.C., an infant at the time, to stop her from crying. According to the investigator's testimony, N.C. had lice in her hair and was filthy and smelled. She also testified that all the children suffered from lice and all but N.C. had pinkeye.

            During the interview process, the parents offered denials, excuses, and explained part of their conduct as discipline. After Adam and C.J. left the CPS office, they received a call that S.C. had been taken to the hospital. Apparently, while still at the CPS office, S.C. had become unresponsive and her eyes crossed. She was taken to the hospital with seizure-type symptoms possibly resulting from being shaken; however, tests showed no injuries. The treating physician testified that although S.C. was not underweight or emaciated, she appeared neglected and was suffering from a vaginal yeast infection and had lice and pink eye.

After its investigation, the Department decided it was in the best interest of the children to remove them from their home and place them with relatives.[8] The Department initiated legal action for termination of parental rights on May 30, 2008. Over several years, a series of family service plans were implemented with a goal of reunification. However, on February 22, 2010,[9] after a trial before the bench, the trial court signed an order terminating Adam's parental rights to N.C. and J.C.

Procedural Background

Pursuant to section 263.405(d) of the Texas Family Code, on March 22, 2010, the trial court held a hearing to determine whether a new trial should be granted and whether the appeal was frivolous. Tex. Fam. Code Ann. § 263.405(d) (West 2008). After a brief hearing, the trial court signed an order denying Adam a new trial and dismissing his notice of appeal from the termination order as frivolous. Adam appealed the trial court's frivolous finding and denial of a free reporter's record. By opinion dated September 29, 2010, this Court found that arguable grounds for appeal existed, reversed the trial court's frivolous finding, and ordered that a free reporter's record be provided to Adam to pursue an appeal on the merits. See In re N.C, No. 07-10-0087-CV, 2010 Tex. App. LEXIS 7972, at *3 (Tex.App.--Amarillo Sept. 29, 2010, no pet.) (mem. op.). After a reporter's record was provided, Adam filed his brief challenging the termination order. This second appeal is on the merits of the termination order.

Statement of Points

            Section 263.405(b)(2) of the Family Code[10] currently provides that a statement of points on which a party intends to appeal must be filed not later than the fifteenth day after a final order is signed.[11] Tex. Fam. Code Ann. § 263.405(b)(2) (West 2008). Presently, an appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points. § 263.405(i).[12] In his Statement of Points, Adam raises insufficiency of the evidence to support each of the four grounds found by the trial court for termination as well as the best interest finding. He also alleges ineffective assistance of counsel and challenges the constitutionality of sections 109.002 and 263.405 of the Texas Family Code. However, on appeal, Adam only complains of the trial court's Findings of Fact and Conclusions of Law.

Adam attacks the trial court's findings and conclusions as being nothing more than "evidentiary recitations" which are "of no value on appeal." He maintains the document is tantamount to no findings having been filed and concludes he has suffered harm as a result. We disagree.

Findings of Fact and Conclusions of Law

            If properly requested, the trial court must prepare and file findings of fact and conclusions of law. Tex. R. Civ. P. 297. A trial court's failure to make and file findings is not harmful error if "the record before the appellate court affirmatively shows that the complaining party suffered no injury." Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (citing Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)). The purpose for requesting written findings of fact and conclusions of law is to narrow the bases of the termination order to only a portion of the multiple claims and defenses in the case thereby reducing the number of contentions an appellant must raise on appeal. Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.App.--Dallas 2003, pet. denied). Harm may exist when the circumstances of a case require an appellant to guess the reason for the trial court's ruling, making it difficult for an appellant to properly present his case on appeal. See In re J.I.T.P., 99 S.W.3d 841, 848-49 (Tex.App.--Houston [14th Dist.] 2003, no pet.). See also Tex. R. App. P. 44.1(a)(2).

Discussion

            The trial court signed the termination order on February 26, 2010, and Adam timely filed his request for findings of fact and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure on March 9, 2010. Although untimely,[13] the trial court signed a lengthy and detailed document entitled "Findings of Fact and Conclusions of Law" on April 1, 2010.

            Adam's challenge leaves us with two avenues for review. First, assuming arguendo, that the document entitled "Findings of Fact and Conclusions of Law" is tantamount to no findings being filed at all, as Adam urges, he failed to file a "Notice of Past Due Findings of Fact and Conclusions of Law" as required by Rule 297 of the Texas Rules of Civil Procedure. Second, if we accept the trial court's Findings of Fact and Conclusions of Law, Adam's dissatisfaction with the contents of those findings and conclusions could have been remedied by filing a request pursuant to Rule 298 for additional or amended findings and conclusions. Adam did not avail himself of either option. Thus, he has waived the opportunity to complain on appeal about the document entitled "Findings of Fact and Conclusions of Law." See In re J.I.T.P., 99 S.W.3d at 848 (citing Curtis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex.App.--Houston [14th Dist. 2000, no pet.)).[14] Consequently, we overrule his sole issue.

Conclusion

            The trial court's order terminating Adam's parental rights to N.C. and J.C. is affirmed.

                                                                                    Patrick A. Pirtle

                                                                                          Justice

[1]Hon. Abe Lopez, (Ret.) sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005).

[2]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (West 2005).

[3]To protect the parents' and children's privacy, we refer to Appellant by his first name and other interested parties by their initials. See Tex. Fam. Code Ann. § 109.002(d) (West 2008). See also Tex. R. App. P. 9.8(b).

[4]The mother, K.L., was appointed possessory conservator and is not appealing.

[5]The record reflects that even though D.V. had custody of two of her grandchildren, she sometimes allowed them to live with Adam rather than deal with his anger.

[6]Adam was not Q.W.J.'s natural father. Q.W.J is one of the children the subject of a companion case, No. 07-10-0075-CV, styled In the Interest of Q.W.J. and S.C., decided this same date.

[7]S.C. is one of the children the subject of a companion case, No. 07-10-0075-CV, styled In the Interest of Q.W.J. and S.C., decided this same date.

[8]Placement with relatives was never fully realized. Q.W.J. and his sister S.C. were placed with a foster family, J.C. was placed with a different foster family, and N.C. was placed in a residential treatment center to address other serious issues.

[9]During oral submission of this appeal, questions were raised on the duration of the underlying case on the docket in light of section 263.401(a) and (b) which provides for mandatory dismissal if trial on the merits is not timely commenced. Dismissal is appropriate if a party files a motion to dismiss pursuant to section 263.402(b). Tex. Fam. Code Ann. § 263.402(b) (West 2008). No motion was filed in the underlying proceeding. Thus, this Court is unable to grant relief because a party's failure to file a motion to dismiss waives the right to object to the failure to dismiss. See id.

[10]All future references to "§" or "section" are to the Texas Family Code Annotated unless otherwise designated.

[11]Effective September 1, 2011, termination cases involving the Department are governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. Sections 263.405(b-1), (d), (e), (f), (h), and (i) have been repealed. See Act of May 5, 2011, 82nd Leg., R.S., ch. 75, 2011 Tex. Sess. Law Serv. 348, 349.

[12]But see In re J.O.A., 262 S.W.3d 7, 21-22 (Tex.App.--Amarillo 2008), aff'd as modified and remanded, 283 S.W.3d 336 (Tex. 2009) (reviewing sufficiency of the evidence claims despite counsel's failure to file a timely statement of points when a due process violation occurs).

[13]Findings of fact and conclusions of law must be filed within twenty days after a timely request. Tex. R. Civ. P. 297.

[14]When, as Adam alleges, no findings are filed, the trial court's judgment implies all findings of fact necessary to support it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). When a reporter's record is filed, implied findings are not conclusive and may be challenged for legal and factual sufficiency. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). However, Adam did not challenge the sufficiency of the evidence in his brief.

> See Stokes v. State, 277 S.W.3d 20, 23 (Tex.Crim.App. 2009) (docket-sheet entry, if signed by judge, would have shown presentment requirement met); Losoya v. State, No. 02-09-0361-CR, 2010 Tex. App. Lexis 7305 (Tex.App.—Fort Worth August 31, 2010, no pet.).

The State lastly argues the setting notice does not demonstrate that presentment occurred within ten days of the motion’s filing, as required by Rule 21.6. It points out the “posted” date shown on the notice, May 4, which was more than ten days after the April 19 filing date. Two factors, we think, defeat this argument. First, the State’s argument would have us ignore appellant’s counsel’s certification that he presented the motion to the court coordinator by hand delivery on April 19. While, again, not sufficient alone to show presentment, counsel’s certification surely is entitled to consideration. Cf. Losoya, 2010 Tex. App. Lexis 7305 at *4 (describing motion containing only a statement in the body of the motion that movant “hereby presents” the motion and a statement in an unsigned order stating that movant presented the motion to the court “on the ___ day of ___ 2009”). And second, Rule 21.6 gives a trial court discretion to permit a motion for new trial to be “presented and heard” within 75 days from sentencing in open court. Tex. R. App. P. 21.6. That the trial court apparently took the action of posting the notice of hearing on May 4, a date beyond ten days from the motion’s filing, does not indicate a lack of compliance with the presentment requirement.

Although we disagree with the State that appellant’s evidence of presentment is lacking, for other reasons we nonetheless find no abuse of discretion in the trial court’s failure to hold a hearing on the motion for new trial.

First, the new trial appellant sought was a rehearing of the State’s motion to revoke appellant’s community supervision and proceed to adjudication on the underlying offense.   A revocation proceeding is neither criminal nor civil in nature; it is an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). At a revocation hearing, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his community supervision. Id. The Court of Criminal Appeals has also held that, "since a revocation is a proceeding tried before the court and not before a jury, the trial court is not required even to consider a motion for new trial." Glaze v. State, 675 S.W.2d 768, 769 (Tex.Crim.App. 1984).[3] Article 42.12, § 5(b) of the Code of Criminal Procedure provides the trial court’s determination to proceed to adjudication “is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West 2010). We are unable to see why the principle the Court of Criminal Appeals enunciated in Glaze should apply differently in deferred adjudication revocations.

Second, for reasons related to the contents of appellant’s motion for new trial, the trial court reasonably could have found it did not show he could be entitled to relief. Wallace, 106 S.W.3d at 108.   The motion asserts that Cameron Bullock, the victim of appellant’s assault who testified at the revocation hearing, committed perjury. In support of the motion, appellant attached an affidavit from an individual named Cassius McLin. McLin’s affidavit, dated April 2, 2010, contains this paragraph:

On Wednesday, January 13, 2010, at approximately 11 or 11:30 am Jessee Ohawkum, Kelly Ohawkum, William Ohawkum, person known to me only as Matthew, person know [sic] only to me as Roderick and Cameron Bullock were all in the game room of Jessee’s home. I heard Cameron Bullock say “I need a favor; I need you to say that Marquise Bennett, Carlos Bennett[[4]] and Lawrence Williams jumped me.” Then he said “My Daddy is mad and he wants to press charges on them all. I need you to say they jumped me.

Appellant’s motion effectively requested a new trial based on newly discovered evidence. To obtain a new trial based on newly discovered evidence, appellant was required to show: (1) the evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App. 2002); Tex. Code Crim. Proc. Ann. art. 40.001 (West 2010). The first two factors went unaddressed in appellant’s motion. Without at least some indication the evidence reflected in McLin’s affidavit qualified as newly discovered evidence, the trial court reasonably could have concluded it would not entitle appellant to a new revocation hearing.

Further, the trial court reasonably could have concluded McLin’s testimony to the facts shown in the affidavit would not probably bring about a different result in a new revocation hearing. Appellant argues the affidavit shows his probation was revoked based only on perjured testimony. As noted, it was undisputed at the hearing that appellant was at the convenience store at the time of the assault on Bullock. The point of disagreement was whether appellant participated in the assault. The court had the opportunity to evaluate the credibility of appellant’s friend Williams and of Bullock. None of the persons named in McLin’s affidavit except Bullock testified at the hearing. The court was not required to agree with appellant that the affidavit demonstrated that Bullock committed perjury, or that McLin’s testimony would lead to a different result. Wallace, 106 S.W.3d at 108.

For these reasons, we resolve appellant’s sole issue against him and affirm the judgment of the trial court.

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish.

[1] See Tex. Penal Code Ann. § 31.07 (West 2009).

[2] The certificate contains a footnote at this point citing Butler v. State, 6 S.W.3d 636 (Tex.App.—Houston [1^st Dist.] 1999, pet. ref’d) for the proposition that presentment of a motion for new trial to the court coordinator meets the presentment requirement. Because of the presence in this case of a setting notice signed by the trial judge, we need not here address that holding of Butler.

[3] We do not suggest, however, that a trial court abuses its discretion by choosing to consider a motion for new trial following a revocation proceeding. Cf. State v. Herndon, 215 S.W.3d 901, 909-10 (Tex.Crim.App. 2007) (discussing exercise of discretion).

[4] While the affidavit refers to Carlos “Bennett,” it seems clear the affiant was speaking of appellant, Carlos Beckett.