In the Interest of K.A.R. and A.C.C.--Appeal from 253rd District Court of Liberty County

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In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-10-00267-CV ________________ IN THE INTEREST OF K.A.R. AND A.C.C. ________________________________________________________________________ On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV0801195 ________________________________________________________________________ MEMORANDUM OPINION The Texas Department of Family and Protective Services ( the Department ) filed a petition to terminate T.D.C. s parental rights to A.C.C. T.D.C. was also indicted for continuous sexual abuse of a child, aggravated sexual assault of a child, and indecency with a child, all involving his step-daughter K.A.R. After a bench trial in the termination case, the trial court terminated T.D.C. s parental rights to A.C.C. In this accelerated appeal, T.D.C. challenges the trial court s decision to conduct the termination trial before the criminal trial. See Tex. Fam. Code Ann. § 263.405 (West 2008). We affirm the trial court s judgment. Under the Family Code, a termination trial must commence within one year of the date the trial court appoints the Department as temporary managing conservator. Tex. 1 Fam. Code Ann. § 263.401(a) (West 2008). The trial court may extend this deadline by no more than 180 days. See id. § 263.401(a)-(b). A parent whose rights are subject to termination . . . and against whom criminal charges are filed that directly relate to the grounds for which termination is sought may file a motion requesting a continuance of the final trial in the suit until the criminal charges are resolved. Tex. Fam. Code Ann. § 161.2011(a) (West Supp. 2010). When granting a continuance, the trial court must comply with section 263.401. Id.; see id. § 263.401. The Family Code s deadlines cannot be extended by agreement or otherwise. Tex. Fam. Code Ann. § 263.402(a) (West 2008). The termination trial was set for April 7, 2010, T.D.C. s criminal trial was set for May 17, 2010, and the dismissal deadline for the termination case was June 12, 2010. In a joint motion for continuance filed by T.D.C. and the children s mother, T.D.C. sought to continue the April trial date on grounds that he had been indicted for conduct underlying the Department s allegations in the termination case. He argued that trying the termination case first would jeopardize the defense of his criminal case and force him to sacrifice trial strategy by choosing to defend his parental rights or his liberty. T.D.C. argued that to effectively assert his Fifth Amendment right to remain silent in the criminal case, he would be forced to remain silent at the termination trial or his testimony could be used against him in the criminal trial. The trial court reset the termination trial 2 for May 12, 2010.1 T.D.C. later filed a motion for new trial on grounds that Texas Family Code sections 263.401 and 263.402 are unconstitutional because they eviscerated [his] right to remain silent. See Tex. Fam. Code Ann. §§ 263.401-.402. The trial court denied the motion and found T.D.C. s appeal frivolous. See Tex. Fam. Code Ann. § 263.405(d)(3) (West 2008). On appeal, T.D.C. argues that sections 161.2011 and 263.401 of the Texas Family Code violate a party s constitutional right to remain silent when those time limits require trial of the suit to terminate a parent-child relationship before the criminal trial. See Tex. Fam. Code Ann. §§ 161.2011(a), 263.401; U.S. Const. amend. V; Tex. Const. art. I, § 10. The Department argues that T.D.C. failed to preserve this issue for appeal. To preserve a complaint for appellate review, a party must present the complaint to the trial court by a timely request, objection, or motion, state the grounds for the desired ruling, and obtain a ruling thereon. Tex. R. App. P. 33.1(a). This requirement applies to constitutional claims, including constitutional claims in family-law cases. Morgan v. Morgan, 254 S.W.3d 485, 490 n.1 (Tex. App. Beaumont 2008, no pet.) (citing Tex. Dep t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993)). [B]oth the objection and all legal basis for it must be timely asserted. Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 145 (Tex. App. Amarillo 2001, pet. denied). An objection is timely when asserted at the earliest opportunity . . . or when the potential error becomes apparent. Id. 1 The record does not contain a formal order on T.D.C. s motion. 3 [I]ncluding the objection and grounds in a motion for new trial does not satisfy the contemporaneous objection rule if the complaint could have been urged earlier. Id. T.D.C. s motion for continuance did not challenge the constitutionality of sections 161.2011 and 263.401. See Sherry, 46 S.W.3d at 861; see also In the Interest of J.L., No. 13-02-044-CV, 2006 Tex. App. LEXIS 11102, at **15-16 (Tex. App. Corpus Christi Dec. 28, 2006, no pet.) (mem. op.). According to the record, T.D.C. participated in the termination trial without objection. See J.L., 2006 Tex. App. LEXIS 11102, at *16. The earliest opportunity for objecting arose when it became apparent that the trial court intended to proceed with the termination trial before the criminal trial. See Baker, 65 S.W.3d at 145; see also J.L., 2006 Tex. App. LEXIS 11102, at *16. Not until his motion for new trial did T.D.C. assert that the Family Code s timelines violate his constitutional rights. See Baker, 65 S.W.3d at 145. Under the circumstances of this case, T.D.C. has failed to preserve his sole issue for appellate review. See Sherry, 46 S.W.3d at 861; see also Baker, 65 S.W.3d at 145-46; J.L., 2006 Tex. App. LEXIS 11102, at *16. We overrule issue one and affirm the trial court s judgment. AFFIRMED. ________________________________ STEVE McKEITHEN Chief Justice Submitted on January 25, 2011 Opinion Delivered February 10, 2011 Before McKeithen, C.J., Gaultney and Horton, JJ. 4

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