In The Interest Of A.F., K.F. And S.F., Children, NUMBER 13-09-00676-CV

IN THE INTEREST OF A.F., K.F. AND S.F., CHILDREN

NUMBER 13-09-00676-CV

Court Of Appeals

Thirteenth District Of Texas

Corpus Christi-edinburg

August 12 , 2010.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

ROGELIO VALDEZ, Chief Justice.

Before Chief Justice Valdez and Justices Yahez and Garza Memorandum Opinion by Chief Justice Valdez

Appellant, A.S., appeals from the trial court's termination of her parental rights to her three children, A.F., K.F., and S.F., and its finding that any appeal of the termination finding would be frivolous.¹ A.S. filed a statement of points on appeal with the trial court, as required by statute. See Tex. Fam. Code Ann. § 263.405(b)(2) (Vernon 2008). After ahearing, the trial court concluded that her appeal was frivolous. By two issues, A.S. challenges the trial court's termination and frivolousness findings. We affirm.

I. Factual and Procedural Background

A.S. is the mother of three children, A.F., K.F., and S.F. At the time of trial, the children were three, two, and one years old, respectively. All three children have the same father, who is not a party to this appeal.

On or about December 4, 2008, the Texas Department of Family and Protective Services (the "Department") removed the children from A.S.'s home based on the Department's investigation of a November 26, 2008 traffic stop involving A.S., two of the children, and the children's father. J.T. Smith, an investigator for the Victoria County Sheriff's Department, testified that, during the traffic stop, he found marihuana on the children's father and placed him under arrest. Investigator Smith then conducted a search of the vehicle and found a loaded methamphetamine pipe, a digital scale, a small plastic bag containing a yellowish residue, and four pawn shop receipts.

Investigator Smith also questioned A.S., who admitted that she had a small plastic bag in her purse that contained methamphetamine. A.S. also admitted to using methamphetamine approximately two weeks prior to the traffic stop and that both her and the children's father were marihuana and methamphetamine users.²

In addition, Investigator Smith observed two of A.S.'s children in the vehicle, a young girl and a young boy. Investigator Smith recalled that both were "very dirty" and "very soiled." The infant boy was wearing a diaper that was saturated with urine and was leaking onto his clothes. In fact, his shirt was saturated up to his chest. Moreover, the boy's bottle contained spoiled milk. Investigator Smith did not find any extra diapers or a change of clothes for the children in the car. The young girl did not have any shoes, and it appeared that she was drinking coffee that was apparently purchased at a convenience store. Based on these observations, Investigator Smith did not believe that the children were being properly cared for by A.S. or the children's father.

The children were subsequently removed from A.S.'s home, and the trial court entered temporary orders, which, among other things, required A.S. to pay $50 per month to support the children while they were in the custody of the Department. A.S. did not make any of the court-ordered payments. A.S. was also ordered to attend parenting classes and counseling, neither of which she attended. She also refused to undergo psychological testing and resisted initial efforts to test her for drugs. However, the Department was later able to conduct a hair-follicle test, which revealed that A.S. had recently abused amphetamine and methamphetamine. The only provision of the service plan that A.S. complied with was the procurement of an identification card.

Karen Smithey, a case worker for the Department, testified that while the children were in the Department's custody, A.S. occasionally came to visit. Although A.S. did miss some appointments, Smithey noted that A.S. was good to the children at the visits. However, Smithey further noted that A.S. did not show any parenting skills, which Smitheybelieved was attributable to A.S.'s failure to attend parenting classes.

Smithey also recalled that neither A.S. nor the children's father would provide information about where they were living. Smithey believed that both parents had been using drugs throughout the investigation of the case and that returning the children to the parents would endanger the children's physical and emotional well-being. Thus, Smithey recommended that the parental rights of both A.S. and the children's father should be terminated.

On November 9, 2009, the trial court conducted a final hearing in this matter. On the morning of the hearing, A.S. called the court to say that she could not attend because she was ill and was going to the local hospital.³ Even though A.S. was not present in the court room, she was represented at the hearing by counsel, and counsel did not move to continue the hearing. After hearing testimony from several witnesses, the trial court entered a judgment terminating the parents' parental rights to all three children. In particular, the trial court concluded that A.S. had violated sections 161.001(1)(D)-(F) and 161.001(1)(O) of the family code. See id. § 161.001(1)(D)-(F), (O) (Vernon Supp. 2009). The court further concluded that the termination of A.S.'s parental rights would be in the best interest of the children. See id. § 161.001(2); see also In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

Shortly thereafter, A.S. filed a motion for new trial and a statement of points onappeal with the trial court.⁴ See Tex. Fam.Code Ann. § 263.405(b)(2). After ahearing, the court entered an order finding A.S.'s points to be frivolous. This appeal followed. See id. § 263.405(g) (allowing a parent to appeal a finding of frivolousness).

II. Standard of Review

If a trial court makes a frivolousness finding, an aggrieved parent may appeal; however, the appeal is initially limited to the frivolousness issue. See id.; see also In re K.D., 202 S.W.3d 860, 865 (Tex. App.-Fort Worth 2006, no pet.) ("[O]nce the trial court determined that an appeal is frivolous, the scope of appellate review is statutorily limited to a review of the trial court's frivolousness finding."). Thus, we must first determine whether the trial court properly found the appeal to be frivolous before we can reach the substantive merits of the appeal. See In re S.T., 239 S.W.3d 452, 454 (Tex. App.-Waco 2007, pet. denied); see also Lumpkin v. Tex. Dep't of Family & Protective Servs., 260 S.W.3d 524, 526 (Tex. App.-Houston [1st Dist.] 2008, no pet.).

We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.-San Antonio 2006, no pet.); In re K.D., 202 S.W.3d at 866. Under this standard, we decide whether the trial court acted without reference to guiding rules and principles or if the complained-of act is arbitrary and unreasonable. Lumpkin, 260 S.W.3d at 527 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

Texas Family Code section 263.405(d)(3) directs the trial court to determine whether an appeal from a termination order is frivolous "as provided by section 13.003(b), Civil Practices and Remedies Code." Tex. Fam. Code Ann. § 263.405(d)(3); see Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002). Section 13.003(b) provides that "[i]n determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review." Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b). Therefore, an appeal is frivolous if it lacks an arguable basis in either law or in fact. See Lumpkin, 260 S.W.3d at 527 (citing In re K.D., 202 S.W.3d at 866; De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.-San Antonio 1998, no pet.)).

An appeal of a termination order is limited to the issues presented in the statement of points. See Tex. Fam. Code Ann. § 263.405(i); see also Pool v. Tex. Dep't of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.-Houston [1st Dist.] 2007, no pet.). If a trial court concludes that an appeal is frivolous, then the court has necessarily determined that each of the issues identified in the statement of points is frivolous; or, in other words, that they lack a substantial basis in law or fact. See Lumpkin, 260 S.W.3d at 527 (citing In re S.T., 263 S.W.3d 394, 398-99 (Tex. App.-Waco 2008, pet. denied)).

III. Analysis

In the instant case, A.S. argues that she presented substantial questions for appellate review concerning the statutory basis for the termination of her parental rights. Specifically, A.S. contends that the evidence was legally and factually insufficient to support the trial court's order terminating her parental rights based on several statutory grounds. See Tex. Fam. Code Ann. § 161.001(1) (listing grounds for the termination of parental rights).

A. Applicable Law

In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish by clear and convincing evidence that one statutory ground for termination is satisfied and that the termination of the parents rights are in the best interest of the child. Id. § 161.001; see In re J.L., 163 S.W.3d at 84. "'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 2008).

"When the trial court conducts a frivolousness hearing on an appellant's proposed legal and factual sufficiency issues, the trial court should apply the [applicable] standard[s] of review." In re K.D., 202 S.W.3d at 867-68. In reviewing the legal sufficiency of the evidence supporting parental termination, the evidence is viewed in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or...