In Interest of SN, SMN, DAN (Tex.App.- Houston [14th Dist.] Oct 14, 2008)(Yates)
(
termination of parent's rights, constitutionality TFC § 263.405, statement of points for appeal 15 day
deadline)

In his first issue, appellant urges us to consider “whether § 263.405 is unconstitutional
to the extent it requires appellant to identify appellate points prior to the appeal being
perfected and before the trial court must file findings of fact and conclusions of law."  
Specifically, he contends that section 263.405(i) places an arbitrary and unreasonable
barrier to appellate court consideration and, in doing so, results in an unconstitutional
deprivation of a parent's due process rights, in violation of the Texas and United
States Constitutions.  See U.S. Const. amend. XIV §1; Tex. Const. art. I, §19.

(i) 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 (Vernon Supp. 2006).  Pursuant to Texas Rule of
Civil Procedure 296, a party may file a request for findings of fact and conclusions of
law within twenty days from the date a judgment is signed.  See Tex. R. Civ. P. 296.  
Thus, juxtaposing section 263.405 with Rule 296, it is possible that a court might
issue findings and conclusions after the due date for the statement of points has
expired, as was the case here.

AFFIRMED: Opinion by Justice Brock Yates  
Before Justices Brock Yates, Anderson and Brown
14-07-00161-CV In the Interest of S.N., S.M.N., D.A.N., Children
Appeal from 314th District Court of Harris County

O P I N I O N

Appellant David Allen Neuenschwander, Jr. appeals from the trial court's order terminating his parental rights
to his three children.  In five issues, he challenges (1) the legal and factual sufficiency of the evidence
underlying the termination findings, (2) the legal and factual sufficiency of the evidence supporting the trial
court's findings of fact related to his paternity, and (3) the constitutionality of section 263.405(i) of the Texas
Family Code.  In his sixth issue, he asserts that if we reverse the trial court's termination of his parental
rights, we should also reverse the trial court's appointment of the Department of Family & Protective Services
as sole managing conservator.  We affirm.

I.  FACTUAL AND PROCEDURAL BACKGROUND

On November 25, 2005, DFPS received a referral alleging neglectful supervision and physical neglect of S.
N., S.M.N., and D.A.N. by their mother, Angel Vidaure.  When officers from the Baytown Police Department
arrived at the home, they discovered that the children were home alone and had been so for several hours.  
After waiting forty-five minutes, during which time Vidaure did not return, the officers took the children to the
police department.  Thereafter, DFPS took the children into custody.

On November 28, 2005, DFPS filed an Original Petition for Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship.  The children were subsequently placed together
in a foster home.  At the time, the daughters, S.N. and S.M.N, were eight years old and six years old,
respectively, and the son, D.A.N., was two years old.

At the time DFPS took the children into custody, appellant was in jail serving a seventy-five day sentence for
driving with a suspended license for failure to maintain liability insurance.  He was released from jail on
December 8, 2005 after serving thirty-five days.  On January 9, 2006, appellant attended a Permanency
Plan Team meeting during which a DFPS case worker reviewed appellant's family service plan with him.  On
January 19, 2006, appellant signed the plan which required, among other things, that he complete parenting
classes, participate in individual therapy, and obtain and maintain stable employment or provide proof of
disability.  On January 19, 2006, the court signed additional temporary orders that reiterated the
requirements of the plan as well as ordered both appellant and Vidaure to complete all services outlined in
the family service plans.

A bench trial was held on January 16, 2007.  In the final termination order signed on February 6, 2007, the
trial court terminated Vidaure's parental rights based on her voluntary affidavit of relinquishment.  The court
terminated appellant's parental rights based on Family Code section 161.001(1), subsection (N) for
constructive abandonment and subsection (O) for failure to comply with the court-ordered family service plan
and found that termination was in the children's best interest.  The decree established appellant's paternity
to D.A.N. only.  It also terminated the parental rights of the unknown fathers of S.N. and S.M.N. based on
Family Code section 161.002(B)(2)(a).  DFPS was appointed sole managing conservator of the three
children.

On February 20, 2007, appellant filed a motion for new trial and statement of appellate points.  The following
day, he filed a request for findings of fact and conclusions of law.  On February 23, 2007, appellant filed his
notice of appeal.  On March 2, 2007, DFPS filed proposed findings of fact and conclusions of law with the
court.  On March 13, 2007, the trial court denied appellant's motion for new trial and issued findings of fact
and conclusions of law.

II.  STANDARD OF REVIEW

Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights.  
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  Due to the severity and permanency of the termination of
parental rights, the burden of proof at trial is heightened to the clear and convincing standard.  See Tex.
Fam. Code Ann. § 161.001 (Vernon Supp. 2008); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “Clear and
convincing evidence" means "the measure or degree of proof that will produce in the mind of the trier of fact
a firm belief or conviction as to the truth of the allegations sought to be established."  Tex. Fam. Code Ann. §
101.007 (Vernon 2002); accord In re J.F.C., 96 S.W.3d at 264.  This heightened burden of proof results in a
heightened standard of review.  In re S.M.L., 171 S.W.3d 472, 476 (Tex. App.- Houston [14th Dist.] 2005, no
pet.).

When determining legal sufficiency, we review “all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was
true."  In re J.F.C., 96 S.W.3d at 266.  To give appropriate deference to the factfinder's conclusions, we must
assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so.  Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.  Id.  However, this does not mean that we must disregard all evidence that does not support the
finding.  Because of the heightened standard, we must also be mindful of any undisputed evidence contrary
to the finding and consider that evidence in our analysis.  Id.

When reviewing a factual sufficiency challenge under the clear and convincing burden, the analysis is
somewhat different in that we must consider all of the evidence equally, both disputed and undisputed.  See
id.  We must consider whether the evidence is sufficient to produce in the mind of the factfinder a firm belief
or conviction as to the truth of the allegation sought to be established.  In re C.H., 89 S.W.3d 17, 26 (Tex.
2002).  We consider whether disputed evidence is such that a reasonable factfinder could not have resolved
that disputed evidence in favor of its finding.  J.F.C., 96 S.W.3d at 266.  “If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient."  Id.

In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family
Code, the petitioner must establish, by clear and convincing evidence, one or more acts or omissions
enumerated under subsection (1) of 161.001 and that termination is in the best interest of the child under
subsection (2).  Tex. Fam. Code Ann. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re U.P., 105 S.
W.3d 222, 229 (Tex. App.- Houston [14th Dist.] 2003, pet. denied).

III.  ANALYSIS

A.      Failure to Complete Family Service Plan

In his fourth issue, appellant challenges the trial court's termination of his parental rights because he
contends the evidence is legally and factually insufficient to support termination under Texas Family Code
section 161.001(1)(O).  To terminate parental rights based on 161.001(1)(O), a trial court must find by clear
and convincing evidence that the parent

failed to comply with the provisions of a court order that specifically established the actions necessary for the
parent to obtain the return of the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for not less than nine months as a
result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.

Here, appellant does not dispute that the children were in the custody of DFPS or that he did not comply with
all of the requirements of the family service plan.  Instead, appellant argues that DFPS cannot meet its
burden of proof on the third element because the children were not removed from him as the result of abuse
or neglect on his part.  He asserts that the language, “as a result of the child's removal from the parent
under Chapter 262 for the abuse or neglect of the child" in subsection (O) means that the parent who failed
to comply with the court order must be the same parent whose acts or omissions caused the child to be
removed and placed into DFPS's care.

DFPS counters that appellant's interpretation of subsection (O) imposes a requirement that the statute does
not.  It argues that appellant misreads the final phrase of subsection (O) which “merely indicates that it is a
situation involving a 'child's removal from the parent under Chapter 262 for the abuse or neglect of the
child.'"  According to DFPS, if the legislature had intended to require specific proof that the parent who failed
to comply with a court order is the parent whose abuse or neglect of the child warranted the child's removal,
it could easily have done so.

Statutory interpretation is a legal matter subject to de novo review.  Bragg v. Edwards Aquifer Auth.,
71 S.W.3d 729, 734 (Tex. 2002).  The overriding goal of statutory interpretation is to determine the
legislature's intent.  Cont'l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002).  To glean legislative
intent, we look first to the plain and common meaning of the words used by the legislature.  Argonaut
Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex. 2002); see also Tex. Gov't Code Ann. § 311.011(a)
(Vernon 2005).  We begin with the plain language because we assume that the legislature tried to
say what it meant; therefore, its words should be the surest guide to its intent.  See Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999); Segal v. Emmes Capital, L.L.
C., 155 S.W.3d 267, 286 (Tex. App.-Houston [1st Dist.] 2004, pet. dism'd).  It is a well-settled rule of
statutory construction that every word of a statute must be presumed to have been used for a
purpose.  Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998).  Likewise, every word excluded
from a statute must also be presumed to have been excluded for a purpose.  Id.  This rule
complements another general statutory construction principle that courts should not insert words into
a statute except to give effect to clear legislative intent.  Laidlaw Waste Sys., Inc. v. City of Wilmer,
904 S.W.2d 656, 659 (Tex.1995).

With the foregoing principles in mind, we conclude that subsection (O) does not require that the parent who
failed to comply with a court order be the same parent whose abuse or neglect of the child warranted the
child's removal.  Had the legislature intended such a requirement, it could have easily provided that
conservatorship be Aas a result of the child's removal from the parent under Chapter 262 for the abuse or
neglect of the child by the parent."  It did not do so, and we presume it did not do so for a purpose.  See
Quick, 7 S.W.3d at 123.  Moreover, although no Texas case appears to have addressed this precise issue,
we have identified at least two decisions in which termination of one parent's rights under subsection (O) was
upheld where the abuse was committed by the other parent, thereby implying that subsection (O) does not
require that the parent who failed to comply with a court order be the same parent whose abuse or neglect
resulted in the child's removal.  See In re C.D.B., 218 S.W.3d 308, 309-12 (Tex. App.- Dallas 2007, no pet.)
(upholding termination of mother's parental rights under subsection (O) where mother failed to comply with
provisions of court order establishing actions necessary for return of children, who had been in DFPS
conservatorship for not less than nine months as result of their removal under Chapter 262, for father's
abuse of one of the children during mother's absence); see also In re S.M., No. 04-04-00194-CV, 2005 WL
418540, at *2B4 (Tex. App.CSan Antonio Feb. 23, 2005, no pet.) (mem. op.) (finding sufficient evidence to
support termination of mother's parental rights under subsection (O) where mother failed to comply with
family service plan outlining requirements to obtain return of children, who had been in DFPS
conservatorship for not less than nine months as result of their removal for boyfriend's physical abuse of one
of the children).

DFPS also contends that there is no authority for appellant's claim that subsection (O) requires proof of
abuse or neglect and cites to In re J.F.C., 96 S.W.3d 256 (Tex. 2002) in support of its argument.  However,
this argument was recently rejected in In re A.A.A., No. 01-07-00160-CV, ___ S.W.3d ___, 2008 WL
2548802, at *4-6 (Tex. App.- Houston [1st Dist.] June 26, 2008, no pet. h.).[1]  In A.A.A., the appellant
challenged the termination of her parental rights under subsection (O) on the grounds that her child was not
removed from her as a result of abuse or neglect but solely because she had been arrested and was unable
to return to the child at the shelter.  Id. at *4.  DFPS argued, inter alia, that the supreme court had previously
addressed the issue of whether “abuse or neglect" are requirements of section 161.001(1)(O) in J.F.C.  Id. at
*5.  In J.F.C., the court held that section 161.001(1)(O) was conclusively established but did not address
whether the child at issue was removed for abuse or neglect.  In re J.F.C., 96 S.W.3d at 278-79.  DFPS
argued that, by not mentioning that the child was removed for abuse or neglect, the J.F.C. court eliminated
abuse or neglect as a required element of subsection (O).  In re A.A.A., 2008 WL 2548802, at *5.  The A.A.
A. court disagreed, noting that the specific question of whether a child must be removed under Chapter 262
for that child's own abuse or neglect was not brought before the court in J.F.C.  See id. at *5.  Instead, the
court had been asked to address the constitutionality of the broad-form jury charge on parental termination
used by the trial court.  In re J.F.C., 96 S.W.3d at 277.  The court did not reach this issue, however, because
it held that the evidence established parental conduct pursuant to section 161.001(1)(O) as a matter of law.  
Id.

After noting that several decisions had treated a finding of abuse or neglect of the child to be a required
element, the court in A.A.A. concluded that “because the supreme court did not expressly hold [in J.F.C.] that
'removal under Chapter 262 for abuse or neglect of the child' is not an element of subsection 161.001(1)(O),
we must adhere to the unambiguous language of the statute."  In re A.A.A., 2008 WL 2548802, at *6.  The
court then proceeded to consider whether DFPS had proved by clear and convincing evidence that the child
was removed under Chapter 262 for abuse or neglect.  Id.

We agree with the court's analysis in A.A.A. and, likewise, conclude that “abuse or neglect" is a required
element of section 161.001(1)(O).  Thus, we must determine whether the evidence is sufficient to support the
trial court's finding that S.N., S.M.N., and D.A.N. were removed because of abuse or neglect.

On November 25, 2005, DFPS received a referral alleging neglectful supervision and physical neglect of the
children by Vidaure.  Pursuant to section 262.104, which allows for emergency removal without a court order,
DFPS took the children into custody.  See Tex. Fam. Code Ann. § 262.104 (Vernon Supp. 2007).  Attached
to DFPS's Original Petition is an affidavit, signed by a DFPS case worker on November 28, 2005.  In it, the
case worker stated that when officers from the Baytown Police Department arrived at the home at 2:15 p.m.,
they found the children home alone, as well as two cat litter boxes overflowing with cat feces, cat feces on
Vidaure's bed, a soiled mattress in the children's room, dirty dishes in the sink, and spoiled milk in the
refrigerator.  The children told the officers that their mother had left at 2:00 a.m., returned to leave
doughnuts, and then left again.  After waiting forty-five minutes for Vidaure, the officers left with the children.  
Vidaure arrived later at the police department and was arrested for abandonment of the children.  When
questioned by one of the officers as to her whereabouts, Vidaure told the officer that she had gone to the
store to purchase milk.  However, the officer informed the case worker that there was a corner store that sells
milk approximately 300 yards from the house, and that she had not been in there.  Vidaure later told the
case worker that she had left home at 2:30 p.m. to get some diapers for D.A.N. and that a neighbor had
checked in on the children from time to time.  The trial court subsequently issued a temporary order naming
DFPS as the children's temporary managing conservator, finding, in part, that "there was a danger to the
physical health or safety of the children" and that "there is a substantial risk of a continuing danger if the
children are returned home."  We conclude that the evidence is legally and factually sufficient to support the
trial court's finding that the children were removed under Chapter 262 for neglect.  We overrule appellant's
fourth issue.

B.      Best Interest of the Child

In his fifth issue, appellant challenges the legal and factual sufficiency of the trial court's finding that
termination was in the children's best interest pursuant to section 161.001(2).

There is a strong presumption that the best interest of the child is served by keeping the child with its natural
parent, and the burden is on the Department to rebut that presumption.  In re S.M.L., 171 S.W.3d at 480; In
re U.P., 105 S.W.3d at 230.  The same evidence of acts or omissions used to establish grounds for
termination under section 161.001(1) may be probative in determining the best interest of the child.  In re A.A.
A., 2008 WL 2548802, at *8.  In reviewing the sufficiency of the evidence to support the second prong, a
court examines several factors, including (1) the desires of the child, (2) the present and future physical and
emotional needs of the child, (3) the present and future emotional and physical danger to the child, (4) the
parental abilities of the persons seeking custody, (5) the programs available to assist those persons seeking
custody in promoting the best interest of the child, (6) the plans for the child by the individuals or agency
seeking custody, (7) the stability of the home or proposed placement, (8) acts or omissions of the parent
which may indicate the existing parent‑child relationship is not appropriate, and (9) any excuse for the
parent's acts or omissions.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re S.M.L., 171 S.W.3d at
480; In re U.P., 105 S.W.3d at 230.  This list is not exhaustive, nor is evidence required on all nine factors to
support a finding terminating a parent's rights.  Holley, 544 S.W.2d at 372; In re U.P., 105 S.W.3d at 230.  
With these considerations in mind, we review the evidence below.

We begin by considering the desires of the children.  Connie Patterson, the therapist of S.N. and S.M.N.,
testified that S.N. and S.M.N. have each told her that they want to move forward and have discussed the
possibility of staying in their foster home on a permanent basis.  Two weeks before trial, S.N. told Patterson
that she had “something really good" to tell her - her foster parents wanted to adopt all three of them.  
Patterson testified that when S.N. gave her the news, S.N. was “extremely excited, jumping all around." She
further testified that S.N. and S.M.N. have never talked about appellant unless she mentions him first and
that they consider their foster parents to be their parents.  Likewise, Patterson testified that D.A.N. is
completely attached to his foster parents and believes they are his parents.  She believes that although the
children have ambivalent feelings about appellant, and it would be sad for them to lose their parents, they
are ready to move forward.  Several months before trial, S.N. and S.M.N. also told Ed Thompson, the court-
appointed children's advocate, they wanted to be adopted by their foster parents.  Thompson testified that,
at the time of trial, the children had not mentioned appellant in over seven months.

We next examine the children's present emotional or physical considerations now and in the future.  
Patterson testified that when she first met S.N. and S.M.N., they were traumatized and very sensitive to the
abandonment issue and that it was very difficult to speak to them without them crying.  S.N. worried a lot
about the instability of their situation.  According to Patterson, S.N. was a very “parentified" child, i.e., she
acted as if she were her younger siblings' mother, and S.M.N. and D.A.N. deferred to her as if she were their
mother.  However, Patterson also testified that the children's foster parents are working with S.N. on her
tendency to give her brother and sister instructions and that S.N. is making consistent progress in that
regard.  She also testified that S.N. and S.M.N. were behind developmentally in school and that DFPS had
received reports from their school regarding acting out behavior.  In her opinion, the children would not
sustain any permanent damage if appellant's parental rights were terminated.  She further testified that she
believed termination of appellant's parental rights was in the children's best interest because the children
were in danger of developing reactive attachment disorder if they were returned to an unstable environment.  
Although she acknowledged that she did not know whether appellant was in an unstable situation, she
testified that there was evidence presented at trial that concerned her.  If appellant's parental rights were not
terminated, she could prepare the children to return to him provided that they receive on-going therapy and
that a system be put into place to ensure their safety and nurturing.

With regard to appellant's parental abilities, appellant was in jail for driving with a suspended license at the
time DFPS removed the children on November 25, 2005.  In February 2006, appellant was again arrested
and served approximately eighteen days in jail. Appellant visited his children until April 2006 but did not visit
them between April 2006 and the date of trial because he mistakenly believed that his visitation rights had
been terminated.[2]  If the children were returned to him, appellant testified he would upgrade his current
one-bedroom apartment that he shares with his grandmother to a three-bedroom apartment.  Appellant
testified he is disabled from a work-related back injury and receives $711 in monthly disability payments.  He
planned to support his children with the disability payments and food stamps.  Appellant would also have
help caring for the children from his grandmother and has an emergency contact in his apartment complex
who could drive to the doctor.  Prior to his incarceration in February 2006, appellant had attended two or
three parenting classes but did not complete the program and other aspects of the family services plan
because he lacked transportation.  Patterson testified that S.N. told her that she, rather than appellant, had
been responsible for feeding S.M.N. and D.A.N., putting them to bed, and dressing them in the morning.  
DFPS supervisor Aisha Jones testified she was concerned that appellant was taking some potentially
addictive medications for his back injury and also for anxiety, but she was unaware of any drug problem.  
Thompson testified that appellant was a very loving father and the children appeared to bond very well with
him during the two family meetings he attended, but that his visits were inconsistent.  The children eventually
quit mentioning him and now consider the foster parents to be their parents.

As for available programs, appellant testified that he receives food stamps and $711 in monthly disability
income.  With regard to the plans for the children, the foster parents have expressed a desire to adopt all
three children.  Patterson testified that the children are doing “superb" in their foster home and are becoming
very well adjusted.  Thompson, who saw the children regularly, testified that they were doing “exceedingly
well" in their foster home.

Finally, we consider appellant's acts or omissions indicating that the existing parent-child relationship is
improper and any excuses he has for his behavior.  Appellant was incarcerated for a suspended driver's
license at the time his children were removed in November 2005 and again in February 2006 for outstanding
traffic violations.  Appellant visited his children until April 2006, but his visits were inconsistent, and he did not
visit them between April 2006 and the date of trial based on a mistaken belief that his visitation rights had
been terminated.  He subsequently tried to contact DFPS on a couple of occasions and left several
messages for the case worker, but no one ever returned his call.  He testified that his failure to complete
parenting classes and other parts of the family services plan was due to a lack of transportation.

Viewing the evidence in the light most favorable to the judgment, we conclude that a reasonable trier of fact
could have formed a firm belief or conviction that the best interest of S.N., S.M.N., and D.A.N. would be
served by termination of appellant's parental rights.  Based upon our review of the entire record, we
conclude that a fact finder could reasonably form a firm conviction or belief that the termination of his
parental rights would be in the children's best interest.  We therefore find the evidence legally and factually
sufficient to support the trial court's finding.  We overrule appellant's fifth issue.

Having overruled issues four and five with regard to the trial court's findings under section 161.001(1)(O)
and the children's best interest, we need not address appellant's third issue challenging the trial court's
findings under subsection (N).  In re T.T., 228 S.W.3d 312, 321 n.8 (Tex. App.- Houston [14th Dist.] 2007,
pet. denied).

C.      Sole Managing Conservator

Having affirmed the termination of appellant's parental rights, we consider his sixth issue, which asks whether
the appointment of DFPS as sole managing conservator should be reversed.  However, because appellant
asks us to consider this issue only if we conclude that the trial court erred in terminating his parental rights,
we need not address it.

D.      Constitutionality of Family Code Section 263.405(i)

In his first issue, appellant urges us to consider “whether § 263.405 is unconstitutional to the extent it
requires appellant to identify appellate points prior to the appeal being perfected and before the trial court
must file findings of fact and conclusions of law."  Specifically, he contends that section 263.405(i) places an
arbitrary and unreasonable barrier to appellate court consideration and, in doing so, results in an
unconstitutional deprivation of a parent's due process rights, in violation of the Texas and United States
Constitutions.  See U.S. Const. amend. XIV §1; Tex. Const. art. I, §19.

1.       Facially Unconstitutional

In addressing appellant's constitutional challenges to section 263.405, we begin with the premise that, when
possible, we must interpret a statute in a manner that renders it constitutional.  See FM Props. Operating Co.
v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000); Quick, 7 S.W.3d at 115.  We note that “[a] facial challenge
to a statute is the most difficult challenge to mount successfully because the challenger must establish that
no set of circumstances exists under which the statute will be valid."  Santikos v. State, 836 S.W.2d 631, 633
(Tex. Crim. App. 1992) (citing United States v. Salerno, 481 U.S. 739, 745 (1987)).  

Thus, a party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute
always operates unconstitutionally.  See Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d
746, 814 n.94 (Tex. 2005); Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999).  As noted by the United
States Supreme Court in Salerno, that a statute “might operate unconstitutionally under some conceivable
set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment."  United States v. Salerno, 481 U.S. 739, 745
(1987).  In reviewing a facial challenge to a statute's constitutionality, we consider the statute as written,
rather than as it operates in practice.  See FM Props. Operating Co., 22 S.W.3d at 873.

Appellant asserts that section 263.405(i) is facially unconstitutional to the extent that it requires a party to
address in its statement of points matters not found by the trial court until after the deadline for filing the
statement has expired.  Turning to the language of the statute at issue, it provides in relevant part:

(b) 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.
. . . .
(i) 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 (Vernon Supp. 2006).  Pursuant to Texas Rule of Civil Procedure 296, a
party may file a request for findings of fact and conclusions of law within twenty days from the date a
judgment is signed.  See Tex. R. Civ. P. 296.  Thus, juxtaposing section 263.405 with Rule 296, it is possible
that a court might issue findings and conclusions after the due date for the statement of points has expired,
as was the case here.

However, as discussed above, just because a statute “might operate unconstitutionally under some
conceivable set of circumstances is insufficient to render it wholly invalid."  See Salerno, 481 U.S. at 745.  
Instead, a party seeking to invalidate a statute must establish that every application of the statute violates
the constitution.  See Nootsie, Ltd. v. Williamson Co. Appraisal Dist., 925 S.W.2d 659, 663 (Tex. 1996).  We
note that a party who appeals a termination where the only alleged trial court error occurred prior to the due
date for filing a statement of points would not be required to address in its statement matters found by the
trial court after expiration of the due date.  Moreover, it is conceivable that where a party promptly requests
findings of fact and conclusions of law, a trial court could file its findings and conclusions prior to expiration of
the due date for the statement of points.  Further, the Texas Supreme Court recently held that, under Texas
Rule of Civil Procedure 5, a trial court may grant a party's motion to extend time for filing a statement of
points for appeal under section 263.405.  See In re M.N., No. 07-0698, __ S.W.3d __, 2008 WL 3991189, at
*5 (Tex. Aug. 29, 2008).  Thus, a trial court may grant a party's motion to enlarge time for filing a statement
of points where the party shows good cause for its failure to timely file it.  Tex. R. Civ. P. 5.

Appellant's suggestion that section 263.405 is unconstitutional to the extent it requires a statement of points
to include matters not found by the trial court until after expiration of the fifteen-day deadline is insufficient to
demonstrate that the statute always operates unconstitutionally.  Consequently, we reject appellant's
argument that section 263.405(i) is facially unconstitutional.

2.       Unconstitutional “As Applied"

In the alternative, appellant asks us to find that section 263.405, as applied to him, is unconstitutional.  An
“as applied" challenge only requires the challenger to demonstrate that the statute operates
unconstitutionally when applied to the challenger's particular circumstances.  See Texas Workers' Comp.
Comm'n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995); In re N.C.M., No. 04-08-00016-CV, __ S.W.3d.
__, 2008 WL 3457028, at *1 (Tex. App.- San Antonio Aug. 13, 2008, no pet. h.); In re B.S.W., 87 S.W.3d
766, 771 (Tex. App.- Texarkana 2002, pet. denied).  

Here, the trial court signed the termination decree on February 6, 2007.  On February 20, 2007 - fourteen
days later - appellant's appellate counsel filed a combined statement of appellate points and motion for new
trial.  In his statement, appellant did not raise the issue of paternity as to S.N. or S.M.N.  On February 21,
2007, appellate counsel filed a request for findings of fact and conclusions of law.  On March 2, 2007, DFPS
filed proposed findings of fact and conclusions of law.  On March 13, 2007, following a hearing, the trial court
signed an order denying appellant's motion for new trial and issuing its findings of fact and conclusions of law.

Among its findings and conclusions - which mirrored those proposed by DFPS save one - the court found
that the father of S.N. and S.M.N. was unknown.  Appellant contends that because the termination decree
identified him as the father of S.N. and S.M.N. and the issue of paternity as to S.N. and S.M.N. was only
raised for the first time in DFPS's proposed findings of fact and conclusions of law - and after the fifteen-day
deadline for filing his statement of points had passed - A[t]here was no paternity question to raise in the
Statement of Appellate Points."  As such, he contends that section 263.405(i) is unconstitutional as applied
to him because it required him to address an issue of which he was unaware before filing his statement.

In support of his position that the decree identified him as S.N. and S.M.N.'s father, appellant points to the
heading of paragraph 8, entitled “Termination of Respondent Father DAVID ALLEN NEUENSCHWANDER,
JR.'S Parental Rights," and argues that if he was not the children's father, there would have been no need to
terminate his parental rights.  He further asserts that he is not identified as “alleged father" in the termination
decree, and that it is only in the findings of fact that the trial court specifically stated that he was not the
father of S.N. and S.M.N.[3]  Thus, he concludes that because the trial court did not file its findings of fact
until after the fifteen-day period for filing a statement of points had expired, he was prevented from raising
the issue in his statement.  See Tex. Fam. Code Ann. 263.405(i).  We disagree.

Contrary to appellant's assertion, sub-paragraph 1.3 of the decree provides, “Respondent Alleged Father
DAVID ALLEN NEUENSCHWANDER, JR. . . . duly and properly cited, appeared in court" (emphasis added).  
Further, although appellant is correct that paragraph 8 of the decree refers to “Termination of Respondent
Father DAVID ALLEN NEUENSCHWANDER, JR.'S Parental Rights," paragraph 6 clearly provides that
appellant's paternity is established as to D.A.N. only and makes no mention of his paternity with regard to S.
N. and S.M.N.[4]  Moreover, paragraphs 9 and 10 are entitled  “Termination of the UNKNOWN FATHER of [S.
R.N.]'S Parental Rights" and "Termination of the UNKNOWN FATHER of [S.M.N.]'S Parental Rights."  Thus,
appellant can hardly be heard to complain on appeal that he was unaware that the paternity of S.N. and S.M.
N. was in question until the court filed its findings of fact and conclusions of law.  To the contrary, the decree
made clear that only his paternity as to D.A.N. was established.  As such, section 263.405(i) did not require
him to address an issue in his statement of points of which he was unaware prior to filing it.  We therefore
conclude that section 263.405(i) is not unconstitutional as applied to him.[5]  We overrule appellant's first
issue.

E.      Paternity Findings

In his second issue, appellant contends that the evidence was legally and factually insufficient to support the
trial court's finding regarding his paternity as to S.N. and S.M.N.  Specifically, he contends that there is no
evidence to support the court's Findings of Fact 3, 4, 7, 8, 9, 10, and 21.

On March 13, 2007, the court issued the following relevant findings of fact:

3.       Appellant did not sign an acknowledgment of paternity with the intent to establish his paternity for the
children, [S.M.N.] and [S.R.N.].

4.       Appellant did not register with the paternity registry of the bureau of vital statistics as a father of either
[S.M.N.] or [S.R.N.].

7.       Appellant did not submit to DNA testing to establish himself as the father of either the child, [S.M.N.] or
[S.R.N.].

8.       No father has filed with the paternity registry of the bureau of vital statistics as the father of either [S.M.
N.] or [S.R.N.].

9.       No man commenced a proceeding to adjudicate his paternity to the children [S.M.N.] or [S.R.N.] at any
time before judgment was rendered in this case.

10.     The father of [S.M.N.] and [S.R.N.] is unknown.

21.     There is clear and convincing evidence that the Department of Family and Protective Services exercise
[] due diligence to determine the location and identify [sic] of the father(s) of [S.M.N.] and [S.R.N.].

DFPS asserts that appellant failed to preserve his complaint regarding the court's decision not to declare him
the father of S.N. and S.M.N.  In support of its argument, DFPS emphasizes that the termination decree
declared appellant only to be the father of D.A.N. and also terminated the parental rights of the unknown
fathers of S.N. and S.M.N.  DFPS contends that because appellant made no attempt to complain about those
portions of the court's judgment, either in a motion to modify judgment or for new trial, or in his statement of
appellate points, he failed to preserve his complaint for review.

Appellant disputes this contention, but he does not demonstrate how he complained about the trial court's
failure to adjudicate him as the father of S.N. and S.M.N.  In light of our disposition of his first issue, and
because appellant failed to present the issue of his paternity as to S.N. and S.M.N. to the trial court in his
statement of points as required under section 263.405(i), we are precluded from considering this issue on
appeal.  Issue two is overruled.

IV.  CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Opinion filed October 14, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

--------------------------------------------------------------------------------

[1]  In his Response to Appellee's Brief, appellant cites to the court's original opinion rendered in this case, In
re A.A.A, No. 01-07-00160-CV, 2008 WL 201033 (Tex. App.- Houston [1st Dist.] Jan. 24, 2008).  However,
the court subsequently granted DFPS's motion for rehearing, withdrew its original opinion, and issued
In re A.
A.A., No. 01-07-00160-CV, ___ S.W.3d ___, 2008 WL 2548802 (Tex. App. - Houston [1st Dist.] June 26,
2008, no pet. h.), in its stead.

[2]  During this last visit, appellant, his grandmother, Vidaure, and her boyfriend went to visit the children.  
Vidaure entered the building to talk to the children's case worker and, upon her return, she told appellant
that their visitation was cancelled.  As they stood outside talking, a security guard approached them,
accompanied by the case worker, and told them to leave the premises.  Appellant later learned that
Vidaure's visitation had been cancelled because she had lice.  Appellant did not visit his children again.  He
testified that he believed his visitation rights had been terminated, although he also testified that no one at
DFPS told him that he could not see his children.

[3]  Appellant's contention that A[i]t was only in the Findings of Fact that the trial court specifically stated that
appellant was not the older two children's father" is inaccurate.  Finding of Fact No. 10, to which we presume
appellant refers, states, “The father of [S.M.N.] and [S.R.N.] is unknown."  This is not the same as stating that
appellant is not the father of S.N. and S.M.N.  In fact, Finding No. 10 arguably goes no further regarding
appellant's paternity as to S.N. and S.M.N. than the decree, which established his paternity as to D.A.N. only
and provided for termination of the unknown fathers' rights to S.N. and S.M.N.

[4]  Paragraph 6 of the decree provides, in relevant part:

Establishment of Paternity: DAVID ALLEN NEUENSCHWANDER, JR.

IT IS ORDERED AND DECREED that DAVID ALLEN NEUENSCHWANDER, JR. is, and he is hereby declared
to be, the father of the child [D.A.N.] . . . ."

[5]  We note that one other court of appeals has reached a similar conclusion, albeit on other grounds.  See
In re A.T.S., No. 12-07-00196-CV, 2008 WL 2930392, at *18-19 (Tex. App.- Tyler July 31, 2008, no pet. h.)
(mem. op.).  In that case, the appellants argued that section 263.405 was unconstitutional in its application
because the fifteen-day deadline for filing a statement of points required them to address findings of fact and
conclusions of law that had not yet been filed.  See id. at 18.  The court stated “[b]ecause interpreting
Section 263.405(i) to mean that [the appellants] cannot complain of alleged errors involving findings of fact
and conclusions of law filed or omitted after Section 263.405(b)'s deadline leads to an absurd result, we
conclude that Section 263.405(i) does not apply to alleged errors occurring after the fifteen day deadline.  
Therefore, Section 263.405(i) is not unconstitutional on this basis."  Id. At 19.