Carlson v. TDFPS (pdf)(Tex.App.- Houston [14th Dist.] Mar. 18, 2010)(Christopher)
(
termination of parental rights, race issue raised and overruled, interracial relationship, biracial child)
AFFIRMED: Opinion by
Justice Christopher     
Before Justices Anderson, Boyce and Christopher   
14-09-00133-CV CHERYL CARLSON v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES     
Appeal from 300th District Court of Brazoria County
Trial Court Judge: K. RANDALL HUFSTETLER  

MEMORANDUM OPINION

In this appeal from the termination of her parental rights, Cheryl Carlson asserts that the trial court (a)
erroneously permitted race to play a role in the trial, (b) should have instructed the jury not to consider race in
determining the best interests of the child, and (c) improperly excluded evidence from the jury.  Because
Carlson did not raise any of these issues before the trial court, we issue this memorandum opinion and affirm.

Texas Family Code section 263.405 provides in pertinent part as follows:

(b)     Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to
request a new trial or appeal the order must file with the trial court:

(1)        a request for a new trial; or

(2)        if an appeal is sought, a statement of the point or points on which the party intends to appeal.

. . .

(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 2008) (emphasis added).  

Here, Carlson filed a “Notice of Appeal, Statement of Points to be Appealed, and Motion for New Trial,” in
which she stated:

Cheryl Carlson gives notice of accelerated appeal . . . as provided by Section 263.405, Texas Family Code.  
Carlson asks for a new trial on the basis of the following points, and gives notice of her intent to appeal the
following points:

1.      That Cheryl Carlson knowingly placed or knowingly allowed the child to remain in conditions or
surroundings that endangered the physical or emotional well-being of the child;

2.      That Cheryl Carlson engaged in conduct or knowingly placed the child with persons who engaged in
conduct that endangered the physical or emotional well being of the child;

3.      That Cheryl Carlson failed to comply with the provisions of a court order that specifically established the
actions necessary for her to obtain return of the child who ha[d] been in the temporary managing
conservatorship of the Texas Department of Protective & Regulatory Services for not less than nine months as
a result of the child’s removal from the parent under Chapter 262 of the Texas Family Code for the abuse and
neglect of the child; and/or

4.      That termination of the parent-child relationship[] between Cheryl Carlson and the child is in the best
interest of the child.

On appeal, however, she asserts the following issues:

·        Whether evidence that the mother was Caucasian and the child was African-American should have
played any role in the trial.

·        Whether the trial court should have instructed the jury not to consider race in determining the “best
interests of the child.”

·        Whether the trial court improperly excluded evidence from the jury.

Because none of these issues were specifically presented to the trial court in Carlson’s statement of points for
appeal, under the plain language of §263.405(i) of the Family Code, we may not consider them.  Although
section 263.405(i) does not prevent an appellate court from considering certain complaints that were not
included in a statement of points on appeal,[1] Carlson has not raised these types of issues here.  

Even if due process allowed us to consider Carlson’s new points on appeal, those points were not preserved
in the trial record.  Carlson (a) never objected to any of the evidence regarding either Carlson’s or the child’s
race,[2] (b) did not request that the jury charge include an instruction regarding race,[3]  and (c) has not
identified in her brief what evidence the trial court excluded and why it was admissible,[4] other than directing
us to the trial court’s pre-trial ruling on a motion in limine[5] excluding a number of witnesses and evidentiary
items because Carlson failed to comply with discovery requests from the Texas Department of Family and
Protective Services (“TDFPS”).  

During oral argument, Carlson asserted that this court should review her issues despite the lack of
preservation because the admission of testimony regarding race resulted in a facial violation of the 14th
Amendment to the United States Constitution.  However, the cases cited by Carlson in support of this position
are inapplicable.  First, Carlson cites Palmore v. Sidotti, a U.S. Supreme Court case in which the Court held
that racial biases and prejudices are not permissible considerations for the removal of a child from the custody
of its natural mother.  466 U.S. 429, 433 (1984).  But in that case, the only reason asserted for the change in
custody was race.  Id. at 430–431.  Here, however, race was never asserted as a reason to remove Carlson’s
daughter from her custody.

Carlson additionally cited a Fifth Circuit Court of Appeals case, McWilliams v. McWilliams.  804 F.2d 1400 (5th
Cir. 1986).  In McWilliams, a section 1983 claim brought by a mother against her ex-husband and the trial
judge who entered the custody provisions in her divorce decree, the Fifth Circuit noted that “[t]he transcript of
the testimony [from the state divorce proceeding] is replete with racial references manifestly intended to
prejudice judge and jury.”  Id. at 1401.  The Fifth Circuit dismissed the case on procedural grounds
(preclusivity of state court judgment), but it noted, “We cannot but observe that [trial counsel’s] failure to urge
constitutional issues in the state proceedings is astonishing.”  Id. at 1403.  We see nothing in this opinion that
supports Carlson’s position that issues of race may be raised for the first time on appeal when they have
never been raised in the trial court.  Indeed, the Fifth Circuit court noted, “A careful search of the record in the
state suit fails to show that counsel for Mrs. McWilliams mentioned constitutional issues or brought any
constitutional issue to the attention of the trial judge.”  Id. at 1401–02.  

Appellant has directed us to only four pages from the record of one day of testimony during an eight-day trial
in which racial references were made.  Carlson complains about testimony related by a TDFPS worker.  The
witness testified that at a meeting with Carlson and her daughter “J.C.” that Carlson did not like her daughter’s
braids and the “gunk” in her hair.  Carlson asked her daughter whether she was attending a “black church” or
was being fed “fried chicken.”  She asked her daughter to describe her foster mother (who was African-
American.)  The TDFPS worker stated that she believed that Carlson was asking these questions in a hostile
and negative manner.

However, there were other references to race in the trial.  Carlson herself testified that she did not like the fact
that J.C. was placed with an African American foster mother and that she felt that J.C.’s braids were painful.  
According to a psychologist’s report, J.C. reported that Carlson had very discriminatory attitudes about African
Americans.  Other documents indicated that J.C. had low self esteem.  Carlson’s son also made negative
comments to a psychologist about the fact that his sister was African American.  Photos were introduced to
demonstrate that Carlson did not take care of J.C.’s hair well and testimony was elicited that taking care of
African American hair was different.  Rather than supporting a claim that a Caucasian mother was an unfit
mother of an African American child, this testimony was only a small part of all of the evidence that supported
TDFPS’s arguments to terminate Carlson’s parental rights for endangering the physical and emotional well-
being of J.C.  At the time of trial, J.C. was living with Carlson’s brother (who is also Caucasian), and he testified
that he wanted to adopt J.C.  TDFPS agreed with that adoption plan.  TDFPS had no issue with a Caucasian
family adopting an African American child, and did not argue that race was a deciding issue.

Under these circumstances, we must overrule Carlson’s three issues.  We therefore affirm the trial court’s
order terminating Carlson’s parental rights.
  

                                                                   /s/        
Tracy Christopher

                                                                               Justice


Panel consists of Justices Anderson, Boyce, and Christopher.

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

[1] See
In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009) (determining that ineffective assistance of counsel
claims need not be included in statement of points and that section 263.405(i) is unconstitutional as applied
when it precludes a parent from raising a meritorious complaint about the sufficiency of the evidence); In re D.
W., 249 S.W.3d 625, 632 (Tex. App.—Fort Worth 2008) (holding section 463.405(i) unconstitutional to the
extent that it prevents properly preserved complaints from being reviewed by appellate courts), pet. denied,
260 S.W.3d 462 (Tex. 2008) (per curiam) (nether approving nor disapproving court of appeals’ holding
regarding constitutionality of section 263.405(i)).

[2] See Tex. R. App. P. 33.1(a)(1) (
requiring that, to preserve error for appeal, the record must reflect that “the
complaint was made to the trial court by a timely request, objection or motion”).

[3] See Tex. R. Civ. P. 278 (“Failure to submit a definition or instruction shall not be deemed a ground for
reversal of the judgment unless a substantially correct definition or instruction has been requested in writing
and tendered by the party complaining of the judgment.”).

[4] See, e.g., Ulogo v. Villanueva, 177 S.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(explaining that
to preserve a complaint on appeal regarding a trial court’s erroneous exclusion of evidence,
the complaining party must have offered the evidence during trial and obtained an adverse ruling from the trial
court); see also In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citing
Tex. R. Evid. 103(a)(2) and noting that “to adequately and effectively preserve error” regarding the erroneous
exclusion of evidence, a party must make an offer of proof with sufficient specificity that a reviewing court may
determine the admissibility of the evidence).

[5] Generally, a ruling on a motion in limine preserves nothing for appellate review.  Ulogo, 177 S.W.3d at 500–
01; Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App.—Houston [14th Dist.] 2002, no pet.).