In the Interest of D.M. and W.M., Children--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00407-CV

In the Interest of D.M. and W.M., Children

 

 

From the 74th District Court

McLennan County, Texas

Trial Court No. 2005-3801-3

Opinion on rehearing

 

Appellant Rhonda Moncrief has filed a motion for rehearing requesting, among other things, leave to file a supplemental brief addressing whether subsections 263.405(b) and 263.405(i) as applied to her case violate her right to due process. A majority of the justices granted this request and directed the parties to file supplemental briefs on this issue. See 10th Tex. App. (Waco) Loc. R. 12(f); see also Tex. R. App. P. 38.7. We will grant Moncrief s motion for rehearing in part, address the merits of the sole issue presented in her appellant s brief, and affirm the judgment.

 Timeliness of Appeal[1]

Moncrief s court-appointed trial counsel filed the notice of appeal eleven days after it was due and contemporaneously with a motion to withdraw because he does not handle appeals. However, appellate counsel was not appointed until after the deadline for filing an extension motion.

Under Verburgt v. Dorner, an extension motion is implied if a notice of appeal is filed within fifteen days after it was due. 959 S.W.2d 615, 617 (Tex. 1997); see also Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam). Although the motion is implied, the appellant must also provide a reasonable explanation for the late filing to avoid dismissal of the appeal. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 571 (Tex. App. Houston [1st Dist.] 2007, no pet.); In re B.G., 104 S.W.3d 565, 567 (Tex. App. Waco 2002, order, no pet.) (per curiam); see also Hone, 104 S.W.3d at 886-87.

In Hone, the Supreme Court discussed what it means for an appellant to provide a reasonable explanation in this context.

We first considered the meaning of reasonably explain in Meshwert v. Meshwert, 549 S.W.2d 383, 383-84 (Tex. 1977) (discussing Texas Rule of Civil Procedure 21c Rule [of Appellate Procedure] 26.3 s predecessor). We held that a reasonable explanation is any plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. Id. at 384. In Garcia v. Kastner Farms, Inc., we applied the Meshwert standard to all cases in which an appellant fails to file a notice of appeal timely. 774 S.W.2d at 669-70. We explained that, [w]hile the definition of reasonable explanation is settled, the courts of appeals have not applied the definition consistently. Id. at 669-70. We emphasized that, under the liberal standard of review applied in these cases, [a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance . . . . Id. at 670.

Hone, 104 S.W.3d at 886-87 (some citations omitted); accord Doe, 226 S.W.3d at 571; B.G., 104 S.W.3d at 567.

Here, in response to a notice from the Clerk of this Court, Moncrief s appellate counsel provided the following explanation for her untimely notice of appeal:

Moncrief did not inform trial counsel . . . of her desire to appeal until Friday afternoon, December 8, 2006. [Trial counsel] immediately drafted a Notice of Appeal and filed it that same day, and moved the trial court that same day to appoint appellate counsel. Thus, the reason for the delay in filing the Notice was the fact that the Respondent did not inform trial counsel to appeal until December 8, 2006. It is not unusual for a party to not understand the importance of deadlines in legal proceedings. Once trial counsel became aware that an appeal was desired, he filed for it at once, still within the extension period. (citations to record omitted)

This Court and others have held that an attorney s misunderstanding of the relevant deadlines to perfect an appeal under section 263.405 constitutes a reasonable explanation for the late filing of a notice of appeal. See Doe, 226 S.W.3d at 571; B.G., 104 S.W.3d at 567.

Under the circumstances, Moncrief s explanation constitutes a plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. See Hone, 104 S.W.3d at 886 (quoting Meshwert, 549 S.W.2d at 384); Doe, 226 S.W.3d at 571 (same); accord B.G., 104 S.W.3d at 567. Therefore, because Moncrief has provided a reasonable explanation for the late filing of her notice of appeal, we grant the implied motion for extension and hold that her appeal was timely perfected.

DUE PROCESS

Moncrief contends in her supplemental issue that application of subsections 263.405(b) and 263.405(i) to her case violates her right to due process.

Section 263.405 applies to appeals from final orders rendered in parental-rights termination suits instituted by the Department of Family and Protective Services. See Tex. Fam. Code Ann. 263.401(a) (Vernon Supp. 2007) (addressing final order in termination suit filed by the department ); 263.405(a) (Vernon Supp. 2007) (addressing appeal of a final order rendered under this subchapter );[2] In re J.R.S., 232 S.W.3d 278, 281 (Tex. App. Fort Worth 2007, no pet.). Section 263.405 imposes strict deadlines and establishes a unique procedure for the trial court to determine whether: (1) a new trial should be granted; (2) an indigence claim should be sustained; and (3) the appeal is frivolous under section 13.003(b) of the Civil Practice and Remedies Code. See Tex. Fam. Code Ann. 263.405 (Vernon Supp. 2007).

The version of subsection (b) applicable to Moncrief s appeal provides:

Not later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for a new trial.

Act of May 22, 2001, 77th Leg., R.S., ch. 1090, 9, 2001 Tex. Gen. Laws 2395, 2397-98 (amended 2007) (current version at Tex. Fam. Code Ann. 263.405(b), (b-1)).[3]

Subsection (i) then provides in pertinent part, The appellate court 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 or in a statement combined with a motion for new trial. Tex. Fam. Code Ann. 263.405(i).

Here, Moncrief did not file a notice of appeal until thirty-two days after the judgment was signed.[4] Her trial attorney withdrew from the representation contemporaneously with the filing of the notice of appeal. The court appointed appellate counsel four days later, which was twenty-one days after a statement of points would have been due.[5] Thus, no statement of points was ever filed on Moncrief s behalf.

Procedural Due Process

It is beyond peradventure that parental-rights termination proceedings must comply with the requisites of procedural due process. In re B.L.D., 113 S.W.3d 340, 351-52 (Tex. 2003); see also M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S. Ct. 555, 564, 136 L. Ed. 2d 473 (1996); Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982). At a minimum, procedural due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. City of Los Angeles v. David, 538 U.S. 715, 717, 123 S. Ct. 1895, 1896, 155 L. Ed. 2d 946 (2003) (per curiam) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976)); Tex. Workers Comp. Comm n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004); see also Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S. Ct. 2633, 2648-49, 159 L. Ed. 2d 578 (2004) (plurality opinion).

We consider three factors to determine whether application of the challenged statute to Moncrief s appeal deprives her of that process which is due:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 334-35, 96 S. Ct. at 903; accord Hamdi, 542 U.S. at 529, 124 S. Ct. at 2646; David, 538 U.S. at 716, 123 S. Ct. at 1896; B.L.D., 113 S.W.3d at 352; In re S.K.A., No. 06-07-00003-CV, 2007 WL 3011091, at *8 (Tex. App. Texarkana Oct. 17, 2007, no pet. h.); see also M.L.B., 519 U.S. at 120-21, 117 S. Ct. at 566 ( we inspect the character and intensity of the individual interest at stake, on the one hand, and the State s justification for its exaction on the other ).

In applying the Mathews factors to determine a due process claim, the Supreme Court of Texas has suggested that those factors should be balanced against the presumption of constitutionality which courts must accord legislative enactments. B.L.D., 113 S.W.3d at 352-54. However, from relevant jurisprudence of the United States Supreme Court, it appears that this presumption of constitutionality may be incorporated into the third of the Mathews factors, namely, the governmental interest at stake. See Walters v. Nat l Ass n of Radiation Survivors, 473 U.S. 305, 319-26, 105 S. Ct. 3180, 3188-92, 87 L. Ed. 2d 220 (1985); Mathews, 424 U.S. at 349, 96 S. Ct. at 909.

Private Interests

The United States Supreme Court has most eloquently stated the nature of the private interest at stake for the parent in parental-rights termination cases.

This Court s decisions have by now made plain beyond the need for multiple citation that a parent s desire for and right to the companionship, care, custody and management of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection. Here the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of deprivation. A parent s interest in the accuracy and [justice][6] of the decision to terminate his or her parental status is, therefore a commanding one.

Lassiter v. Dep t of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2159-60, 68 L. Ed. 2d 640 (1981) (footnote added) (citations omitted); accord B.L.D., 113 S.W.3d at 352; S.K.A., 2007 WL 3011091, at *5, *9.

The child also has a compelling interest. [U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. [7] Santosky, 455 U.S. at 760, 102 S. Ct. at 1398; accord In re M.S., 115 S.W.3d 534, 547-48 (Tex. 2003); S.K.A., 2007 WL 3011091, at *9.

Risk of Erroneous Deprivation

Next, we consider the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards. Mathews,424 U.S. at 335, 96 S. Ct. at 903; accord Hamdi, 542 U.S. at 529, 124 S. Ct. at 2646; David, 538 U.S. at 716, 123 S. Ct. at 1896.

Under this particular component of the Mathews balancing test, we first consider the procedural safeguards currently in place. See Lassiter, 452 U.S. at 28-29, 101 S. Ct. at 2160; B.L.D., 113 S.W.3d at 353; S.K.A., 2007 WL 3011091, at *10. The Texas Supreme Court has catalogued many of the extant procedural safeguards in parental-rights termination cases. See B.L.D., 113 S.W.3d at 353-54. Most of the safeguards identified in B.L.D. are applicable to only the trial. But the risk of deprivation here is that Moncrief s parental rights will have been judicially terminated without meaningful appellate review. Therefore, we focus on the procedural safeguards in place to ensure meaningful appellate review.

First, we observe that Moncrief has no constitutional right to appellate review at all. See M.L.B., 519 U.S. at 110, 117 S. Ct. at 560; Ross v. Moffitt, 417 U.S. 600, 611, 94 S. Ct. 2437, 2444, 41 L. Ed. 2d 341 (1974); S.K.A., 2007 WL 3011091, at *6. Nevertheless, the Legislature has granted a right of appeal by statute. See Tex. Fam. Code Ann. 109.002(a) (Vernon 2002), 263.405(a). And because the Legislature has done so, this statutory right of appeal must comport with the Due Process Clause. Evitts v. Lucey, 469 U.S. 387, 400-01, 105 S. Ct. 830, 838-39, 83 L. Ed. 2d 821 (1985); S.K.A., 2007 WL 3011091, at *6; Tex. Dep t of Pub. Safety v. Story, 115 S.W.3d 588, 591 (Tex. App. Waco 2003, no pet.); In re K.L., 91 S.W.3d 1, 5-6 & n.16 (Tex. App. Fort Worth 2002, no pet.); see also M.L.B., 519 U.S. at 110-11, 117 S. Ct. at 560-61 (once a state provides a right of appeal, the State may not bolt the door to equal justice ) (quoting Griffin v. Illinois, 351 U.S. 12, 24, 76 S. Ct. 585, 593, 100 L. Ed. 891 (1956) (Frankfurter, J., concurring)).

There are three primary safeguards attendant to the appellate process in cases governed by section 263.405. The first two are for the indigent. Under section 263.405 and Rule of Appellate Procedure 20.1, an indigent appellant is permitted to pursue his or her appeal without advance payment of court costs or fees and to have the clerk s and reporter s records prepared and filed without prepayment. See Tex. Fam. Code Ann. 263.405; Tex. R. App. P. 20.1. An indigent appellant also has a statutory right to appointed counsel, which includes the right to effective assistance of counsel on appeal. See Tex. Fam. Code Ann. 263.405(e); M.S., 115 S.W.3d at 544; S.K.A., 2007 WL 3011091, at *7; K.L., 91 S.W.3d at 13; see also Evitts, 469 U.S. at 397, 105 S. Ct. at 836-37 ( the promise of Douglas that a criminal defendant has a right to counsel on appeal like the promise of Gideon that a criminal defendant has a right to counsel at trial would be a futile gesture unless it comprehended the right to the effective assistance of counsel ). Finally, the Texas Supreme Court has determined that a heightened standard of review applies to any complaint that there is no evidence or factually insufficient evidence to support the findings necessary for termination. B.L.D., 113 S.W.3d at 354 (citing In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).

These are the existing safeguards, yet Mathews counsels that we also consider the probable value, if any, of additional or substitute procedural safeguards. Mathews, 424 U.S. at 335, 96 S. Ct. at 903; accord Hamdi, 542 U.S. at 529, 124 S. Ct. at 2646; David, 538 U.S. at 716, 123 S. Ct. at 1896. Of the existing safeguards, only the right to effective assistance of counsel bears on the risk of deprivation faced by Moncrief.

The Dallas Court has ventured to identify additional safeguards which would serve to level the playing field for appeals governed by section 263.405.

The appellate playing field needs to be fair. As the family code currently stands, parents are at a severe disadvantage in knowing all the requirements for an appeal.

It is interesting to note that the family code contains a section titled Warning to Parents. See Tex. Fam. Code Ann. 263.006 (Vernon 2002). That section provides as follows:

At the status hearing under Subchapter C and at each permanency hearing under Subchapter D held after the court has rendered a temporary order appointing the department as temporary managing conservator, the court shall inform each parent in open court that parental and custodial rights and duties may be subject to restriction or to termination unless the parent or parents are willing and able to provide the child with a safe environment.

Tex. Fam. Code Ann. 263.006 (Vernon 2002). Through this section, the legislature ensures that parents are warned repeatedly before their case gets to trial that their parental rights may be terminated.

Although desperately needed, a further warning regarding parents rights to appeal the termination of their rights is absent. The legislature should warn parents that if they fail to present the trial court with a statement of points within fifteen days of a final order, there will be nothing for the court of appeals to consider. This goal could most easily be accomplished by amending section 109.002(a) to direct attention to the appeal requirements of section 263.405 in all suits involving TDFPS. Additionally, the trial court can alert the parents to the appeal provisions of section 263.405 in a statement in capital letters and bold print at the end of its final order or judgment. By failing to file the statement of points, parents are losing their right to appeal the termination of their parental rights. It appears that the failure to file the statement of points is most often not intentional but rather, it is the result of the failure of the family code to direct parents attention to the provision. As it stands right now, section 463.405(b) is a trap for the unwary.

In re R.J.S., 219 S.W.3d 623, 627 (Tex. App. Dallas 2007, pet. denied).

With respect to the Dallas Court s observation that parents ought to have specific notice that nothing can be reviewed on appeal absent a timely-filed statement of points, we observe that the Court of Criminal Appeals has recently amended Rule of Appellate Procedure 25.2 by, among other things, adding subsection (h) which provides, When a court enters a judgment or other appealable order and the defendant has a right of appeal, the court (orally or in writing) shall advise the defendant of his right of appeal and of the requirements for timely filing a sufficient notice of appeal. Tex. R. App. P. 25.2(h) (emphasis added).[8] Thus, it is quite feasible for the Legislature to amend section 263.405 to include a similar notice requirement advising a parent in particular of the necessity of a timely-filed statement of points for appellate review.

In addition, we note that extensions may be obtained in a parental-rights termination appeal for the filing of the notice of appeal, an indigence affidavit, the record, and briefs. See Tex. Fam. Code Ann. 263.405(h); Tex. R. App. P. 10.5, 26.3, 35.3(c), 38.6(d); Higgins v. Randall County Sheriff s Office, 193 S.W.3d 898, 899-900 (Tex. 2006) (per curiam) (indigence affidavit); Doe, 226 S.W.3d at 570-71 (notice of appeal); see also In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) ( in an accelerated appeal, absent a rule 26.3 motion, the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions ); but see In re M.A., 222 S.W.3d 670, 670-71 (Tex. App. Houston [14th Dist.] 2007, no pet.) (per curiam) (Higgins rule allowing untimely indigence affidavits does not apply to appeals governed by section 263.405). Stated another way, every deadline applicable to parental-rights termination appeals may be extended except the 15-day deadline established for the statement of points by section 263.405(b). Thus, it is quite feasible for the Legislature to amend section 263.405 to permit such an extension.

To summarize, there are few procedural safeguards presently in place to ensure against the risk that Moncrief s parental rights will have been judicially terminated without meaningful appellate review. We have identified two additional safeguards which would greatly reduce that risk.

The State s Interest

The State s interests in parental-rights termination proceedings are well documented. The paramount interest for the State is the best interest of the child.[9] See Tex. Fam. Code Ann. 153.002 (Vernon 2002); Santosky, 455 U.S. at 766-67, 102 S.W.3d at 1401-02; B.L.D., 113 S.W.3d at 353. Because of the shared interest in the welfare of the child, the State too has an interest in an accurate and just determination. See Santosky, 455 U.S. at 766, 102 S. Ct. at 1401; B.L.D., 113 S.W.3d at 353; S.K.A., 2007 WL 3011091, at *9.

The State has other interests which do not necessarily coincide with a parent. The State has an interest in the consistent and uniform application of preservation of error rules. M.S., 115 S.W.3d at 548; accord S.K.A., 2007 WL 3011091, at *9. This interest necessarily impacts all trials, civil and criminal. In addition, the State has an interest in the economical and efficient resolution of parental-rights termination cases. Id. This interest is of such importance that the Legislature has carefully crafted time limits which apply to nearly every stage of litigation when the Department removes a child from the home because of abuse or neglect allegations.[10] See B.L.D., 113 S.W.3d at 353. In particular, appellate review in such cases is accelerated and prioritized over all other civil cases. See Tex. Fam. Code Ann. 109.002(a), 263.405(a); B.L.D., 113 S.W.3d at 353; S.K.A., 2007 WL 3011091, at *9.

Balancing the Factors

It is beyond question that a parent has a compelling interest in the accuracy and justness of a judicial decision to terminate his or her parental rights and, in particular, in obtaining meaningful appellate review of that decision. Here, meaningful appellate review is lost because of the 15-day statutory deadline for filing the statement of points necessary to preserve an issue for appellate review. This deprivation is magnified in Moncrief s case because appellate counsel was not appointed until after this deadline had passed. To assuage the risk of such deprivation, we have identified two relatively innocuous amendments which could be implemented without substantial intrusion on any of the State s interests we have identified.

In a similar case, the Texas Supreme Court has concluded that application of the general rules for preservation of error in civil cases does not violate due process. B.L.D., 113 S.W.3d at 354. However, the Court acknowledged that in a given parental rights termination case, a different calibration of the [Mathews] factors could require a court of appeals to review an unpreserved complaint of error to ensure that our procedures comport with due process. Id. We believe Moncrief s appeal provides a different calibration of the relevant factors.

First, in B.L.D. the Supreme Court was considering whether application of longstanding principles of error preservation violates due process. See id., 113 S.W.3d at 349. The general principle that trial errors must be preserved by timely and specific objection has been a part of Texas jurisprudence for more than a century. See, e.g., Saenz v. O.F. Mumme & Co., 85 S.W. 59, 60 (Tex. Civ. App. San Antonio 1905, no writ); see also Maverick v. Maury, 79 Tex. 435, 15 S.W. 686, 689 (1891) (discussing party s failure to preserve charge error). By contrast, the mandatory nature of the 15-day deadline for the statement of points had been established by the Legislature only about one year before Moncrief s case went to trial.[11] See In re E.A.R., 201 S.W.3d 813, 814-15 (Tex. App. Waco 2006, no pet.) (Vance, J., concurring). And from the number of reported cases in which counsel failed to preserve appellate issues by timely filed statement of points, it would seem that a significant risk remains that parents will be deprived of meaningful appellate review. See, e.g., S.K.A., 2007 WL 3011091, at *1-2; In re M.D., No. 05-06-00779-CV, 2007 WL 1310966, at *1 (Tex. App. Dallas May 7, 2007, no pet.); In re R.C., No. 07-06-00444-CV, 2007 WL 1219046, at *1-2 (Tex. App. Amarillo Apr. 25, 2007, no pet.); In re J.H., No. 12-06-00002-CV, 2007 WL 172105, at *1 (Tex. App. Tyler Jan. 24, 2007, no pet.) (mem. op.); Adams v. Tex. Dep t of Family & Protective Servs., 236 S.W.3d 271, 278 (Tex. App. Houston [1st Dist.] 2007, no pet.); In re M.N., 230 S.W.3d 248, 249-50 (Tex. App. Eastland 2007, pet. filed); In re T.R.F., 230 S.W.3d 263, 263-65 (Tex. App. Waco 2007, pet. filed); In re T.T., 228 S.W.3d 312, 316-17 (Tex. App. Houston [14th Dist.] 2007, pet. denied); Pool v. Tex. Dep t of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App. Houston [1st Dist.] 2007, no pet.); In re C.B.M., 225 S.W.3d 703, 706 (Tex. App. El Paso 2006, no pet.); In re J.W.H., 222 S.W.3d 661, 662 (Tex. App. Waco 2007, no pet.); R.J.S., 219 S.W.3d at 626-27; In re R.M.R., 218 S.W.3d 863, 864 (Tex. App. Corpus Christi 2007, no pet.); In re A.H.L., 214 S.W.3d 45, 53 (Tex. App. El Paso 2006, pet. denied); In re C.M., 208 S.W.3d 89, 91-92 (Tex. App. Houston [14th Dist.] 2006, no pet.); In re S.E., 203 S.W.3d 14, 15 (Tex. App. San Antonio 2006, no pet.); E.A.R., 201 S.W.3d at 813-14; In re D.A.R., 201 S.W.3d 229, 230-31 (Tex. App. Fort Worth 2006, no pet.); but see Doe, 226 S.W.3d at 571-76 (addressing ineffective assistance claim not raised in statement of points).

In Doe, the appellant presented as appellate issues an ineffective assistance complaint and a factual insufficiency complaint, neither of which had been raised in a statement of points. Doe, 226 S.W.3d at 570, 571, 576. The First Court of Appeals addressed the merits of the ineffective assistance complaint, reviewing in particular trial counsel s: (1) failure to make an opening statement, (2) failure to call certain witnesses, (3) decision to conduct only a brief direct examination of Doe, (4) failure to file a motion for new trial, and (5) failure to file a statement of points for appeal. Id. at 572-76. In connection with counsel s failure to file a motion for new trial, the court addressed the factual sufficiency of the evidence to support the jury s best-interest finding. Id. at 573-75.

Thus, Doe may be cited for the proposition that the risk of erroneous deprivation is not great because issues not raised in a timely filed statement of points may nevertheless be presented on appeal via an ineffective assistance claim. However, every other court which has addressed an ineffective assistance complaint under similar circumstances[12] has concluded that the merits of such a complaint may not be determined on appeal if the complaint was not presented to the trial court in a timely statement of points. See In re R.M., No. 04-07-00048-CV, 2007 WL 1988149, at *1 (Tex. App. San Antonio July 11, 2007, pet. denied); R.C., 2007 WL 1219046, at *2; In re J.F.R., No. 09-06-00115-CV, 2007 WL 685640, at *2 (Tex. App. Beaumont Mar. 8, 2007, no pet.) (mem. op.); J.H., 2007 WL 172105, at *1; R.M.R., 218 S.W.3d at 864; A.H.L., 214 S.W.3d at 54; D.A.R., 201 S.W.3d at 229-31; see also T.R.F., 230 S.W.3d at 266 (Vance, J., concurring) (discussing unpreserved ineffective assistance complaints). Under these circumstances, the risk of erroneous deprivation remains significant and thus unacceptable. See M.S., 115 S.W.3d at 549; S.K.A., 2007 WL 3011091, at *10.

Another distinction of Moncrief s appeal which provides a different calibration of the relevant factors is the fact that Moncrief s appellate counsel was not appointed until after the deadline for the statement of points. See S.K.A., 2007 WL 3011091, at *10 (finding due process violation where counsel not appointed until after deadline for statement of points). As Justice Vance has previously observed, In the Tenth Court of Appeals, it is not unusual for appointed appellate counsel to be different from appointed trial counsel in termination appeals involving an indigent parent. E.A.R., 201 S.W.3d at 817 (Vance, J., concurring).[13]

The State places full responsibility for failure to file a statement of points on Moncrief. We are not persuaded. Under the law, Moncrief had an absolute entitlement to twenty days to determine whether she would appeal the decree terminating her parental rights. See Tex. Fam. Code Ann. 263.405(a); Tex. R. App. P. 26.1(b). The State observes that, if she had informed trial counsel on the date of judgment that she wanted to appeal, appellate counsel would likely have been appointed with sufficient time to prepare and file a statement of points. However, the deadline for filing an appeal is not the date of judgment, but twenty days later. In fact, that deadline may be extended an additional fifteen days if the party provides a reasonable explanation for the late filing. See Tex. R. App. P. 10.5(b)(1)(C), 26.3.

There are innumerable factors a litigant may consider when deciding whether to pursue an appeal. It would be, as the State suggests, a natural parental reaction to demand an immediate appeal and seek reversal of the termination decree at the earliest possible opportunity. In our experience, however, parental-rights termination cases involve a host of social, economic, psychological, and sometimes criminological issues which render the decision to appeal anything but simple. And when the intricate deadlines of section 263.405 are superimposed on the already complicated decision of whether to appeal, deadlines are missed, sometimes without remedy.

For the foregoing reasons, we hold that subsections 263.405(b) and 263.405(i), as applied to Moncrief s case, violate her right to due process.

Remedy

The Texas Supreme Court has explained the remedy in such a case. As the Court stated in B.L.D., we acknowledge that in a given parental rights termination case, a different calibration of the [Mathews] factors could require a court of appeals to review an unpreserved complaint of error to ensure that our procedures comport with due process. B.L.D., 113 S.W.3d at 354. Therefore, we will consider the merits of the sole issue Moncrief presented in her appellant s brief. See S.K.A., 2007 WL 3011091, at *10 (considering issues presented in untimely statement of points).

Denial of Extension

Moncrief contends in her first issue that the court abused its discretion by denying her motion for a 180-day extension under section 263.401(b).

The applicable version of section 263.401(b) provides in pertinent part:

The court may not retain the suit on the court s docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.

Act of May 29, 2005, 79th Leg., R.S., ch. 268, 1.40, 2005 Tex. Gen. Laws 621, 636 (amended 2007) (current version at Tex. Fam. Code Ann. 263.401(b) (Vernon Supp. 2007)).

The trial court set Moncrief s case for non-jury trial on October 3, 2006, nearly two months before the dismissal date (November 27) mandated by section 263.401(a). See id. 263.401(a). On the date of trial, Moncrief asked the court for a 180-day extension. Moncrief s trial counsel explained that she had not been in communication with him for several months and had contacted him again only the afternoon before trial. Moncrief testified that she believed she had completed all the requirements of her service plan except parenting classes. She attributed her failure to communicate with counsel primarily to lack of transportation and no telephone. She also presented evidence that she was born with spina bifida, that she receives monthly disability payments because she is unable to work, and that she has an IQ of 62.

On cross-examination, the Department reminded Moncrief that her service plan required her, among other things, to attend weekly therapy sessions and weekly parenting classes. Moncrief also testified that she had not attended a court hearing regarding her case since February.[14]

Moncrief s mother testified that she would do what she could to help Moncrief with her transportation needs and to otherwise help her with the service plan tasks. On cross-examination and further questioning by the trial court, Moncrief s mother essentially testified that she had not offered much assistance to Moncrief up to that point because Moncrief had disappeared for an unspecified period of time, because she thought that Moncrief was fulfilling her responsibilities under the service plan, and because Moncrief had told her that she was taking care of these issues herself.

The trial court denied Moncrief s request for a 180-day extension, holding that she had failed to show good cause for that length of an extension, but the court did postpone the trial for three weeks to allow Moncrief s counsel more time to prepare.

We review the decision to grant or deny an extension request under section 263.401(b) for an abuse of discretion. See In re J.A., No. 02-05-00454-CV, 2006 WL 3114434, at *9 (Tex. App. Fort Worth Nov. 2, 2006, no pet.) (mem. op.); Shaw v. Tex. Dep t of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL 2504460, at *8 (Tex. App. Austin Aug. 31, 2006, pet. denied) (mem. op.).

Moncrief contends that the court abused its discretion because it used the wrong legal test for determining whether an extension should be granted. Although Moncrief is correct that the good cause test apparently employed by the court is not the test set forth in section 263.401(b), she offers no explanation as to how the court s ruling would have been any different if the trial court had made a finding regarding extraordinary circumstances as required by the statute.

A court does not abuse its discretion if it makes a correct ruling for the wrong reason. Tex. Workers Comp. Comm n v. Wausau Underwriters Ins., 127 S.W.3d 50, 58 (Tex. App. Houston [1st Dist.] 2003, pet. denied); Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex. App. Beaumont 1996, writ denied). The Austin and San Antonio Courts have both concluded that evidence similar to that presented by Moncrief does not establish extraordinary circumstances justifying an extension under section 263.401(b). See Shaw, 2006 WL 2504460, at *8; In re A.S.J., No. 04-06-00051-CV, 2006 WL 1896335, at *2 (Tex. App. San Antonio July 12, 2006, no pet.) (mem. op.). Thus, we cannot say that the court abused its discretion by denying Moncrief s extension request. See Tex. Workers Comp. Comm n, 127 S.W.3d at 58; Hawthorne, 917 S.W.2d at 931. Accordingly, we overrule the first issue.

Conclusion

Having directed the parties to provide supplemental briefing on the due process issue, we grant Moncrief s motion for rehearing in part. We have concluded that subsections 263.405(b) and 263.405(i), as applied to Moncrief s case, violate her right to due process. Nevertheless, having overruled the sole issue presented in Moncrief s appellant s brief, we affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed December 12, 2007

[CV06]

 

[1] Because the timeliness of Moncrief s appeal was not addressed in an opinion joined by a majority of the justices on original submission, we begin with this issue because it concerns this Court s jurisdiction. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 564 (Tex. 2005) ( [b]ecause Wilkins s notice of appeal was untimely, the court of appeals lacked jurisdiction over the appeal ).

[2] [T]his subchapter (i.e., Chapter 263, Subchapter E of the Family Code) consists of sections 263.401 through 263.408. See Tex. Fam. Code Ann. 263.401-.408 (Vernon 2002 & Supp. 2007).

[3] The 2007 amendments apply to suits filed on or after the effective date of this Act, which was June 16, 2007. Act of May 21, 2007, 80th Leg., R.S., ch. 526, 6, 8, 2007 Tex. Sess. Law Serv. 931, 932.

[4] Because appeals under section 263.405 are accelerated, the notice of appeal ordinarily must be filed within twenty days after the judgment is signed. See Tex. Fam. Code Ann. 263.405(a) (Vernon Supp. 2007); Tex. R. App. P. 26.1(b). However, this deadline may be extended. See Tex. R. App. P. 26.3; In re K.A.F., 160 S.W.3d 923, 926 (Tex. 2005).

[5] Section 263.405 contains no provision authorizing an extension of time to file a statement of points.

[6] The Supreme Court in Lassiter actually referred to the parent s interest in the accuracy and injustice of the decision to terminate. Lassiter v. Dep t of Soc. Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160, 68 L. Ed. 2d 640 (1981) (emphasis added). Nevertheless, subsequent decisions (purportedly quoting Lassiter) refer to the accuracy and justice of the decision to terminate. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102, 118, 117 S. Ct. 555, 565, 136 L. Ed. 2d 473 (1996);Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599 (1982); In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003).

[7] The shared interests of parent and child in a just and accurate determination diverge after parental unfitness has been established. Santosky, 455 U.S. at 760, 102 S. Ct. at 1398; In re M.S., 115 S.W.3d 534, 547-49 (Tex. 2003).

[8] See Tex. R. App. P. 25.2(h), 70 Tex. B.J. 794 (Tex. Crim. App. Aug. 20, 2007). The amendments to Rule 25.2 took effect on September 1, 2007.

[9] The Family Code declares that the public policy of Texas regarding the parent-child relationship is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. Tex. Fam. Code Ann. 153.001(a) (Vernon 2002).

[10] See, e.g., Tex. Fam. Code Ann. 262.103, 262.105, 262.106, 262.109(b), 262.112, 262.201(a), 262.2015(c), 263.101, 263.201(a), 263.3025(a), 263.303(a), 263.304, 263.305, 263.401, 263.402(a), 263.403(b)(2), 263.405 (Vernon 2002 & Supp. 2007). The Legislature adopted these statutory time limits in 1997 (with subsequent amendments) to carry out the recommendation of the 1996 Governor s Committee to Promote Adoption that parental rights be terminated or families reunified within 12 months after removal and to accordingly reduce the number of children languishing in foster care and awaiting adoption. See Garza v. Tex. Dep t of Family & Protective Servs., 212 S.W.3d 373, 377 (Tex. App. Austin 2006, no pet.); In re Tex. Dep t of Protective & Regulatory Servs., 71 S.W.3d 446, 449 (Tex. App. Fort Worth 2002, orig. proceeding); In re T.M., 33 S.W.3d 341, 346 (Tex. App. Amarillo 2000, no pet.); In re Bishop, 8 S.W.3d 412, 416-17 (Tex. App. Waco 1999, orig. proceeding [mand. denied]).

[11] While it is true that the 15-day deadline for the statement of points was enacted in 2001 as part of section 263.405(b), the preservation requirement of subsection (i) (namely, that only those issues presented in a timely-filed statement of points may be considered on appeal) was not enacted until four years later. See In re E.A.R., 201 S.W.3d 813, 814-15 (Tex. App. Waco 2006, no pet.) (Vance, J., concurring).

[12] We address here only cases decided after subsection 263.405(i) took effect. Before then, several courts considered ineffective assistance complaints not raised in a statement of points. See, e.g., M.S., 115 S.W.3d at 543-50; In re B.T., 154 S.W.3d 200, 205 (Tex. App. Fort Worth 2005, no pet.).

[13] Moncrief s counsel also calls attention to evidence that his client has an IQ of 68, that she is unemployed due to disability, and that her trial counsel does not do appellate work. However, no explanation has been offered as to how the first two facts impacted the failure to file a statement of points and no ineffective assistance claim has been presented on Moncrief s behalf.

[14] Notwithstanding Moncrief s recollection, a review of the record indicates that her prior court appearance was at a January 2006 status hearing. She failed to appear at permanency hearings in May and August.