in the Interest of D.M.D Children

• Court: Court of Appeals of Texas
• Decided: December 16, 2009
• Docket: 04-09-00370-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00370-CV

In the INTEREST OF D.M.D. and M.A.H., Children

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2008-PA-00891 Honorable Charles E. Montemayor, Associate Judge Presiding

Opinion by: Steven C. Hilbig, Justice

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: December 16, 2009

AFFIRMED

The trial court terminated the parent-child relationship between A.T.G. and the children,

D.M.D. and M.A.H. A.T.G. appeals the judgment and the trial court’s order finding her appellate

points to be frivolous. We affirm.

BACKGROUND

Child Protective Services received a referral in November 2006, alleging physical abuse and

neglectful supervision of the children by their mother, A.T.G. After an investigator found “reason

to believe” the allegations, a caseworker completed an assessment and recommended a variety of

services to the family. Although the family completed some of the recommended services, in 04-09-00370-CV

February 2008, two therapists working with the family reported A.T.G. was no longer in compliance

and demonstrated a lack of willingness to engage in services designed to address her drug use and

anger issues. The caseworker concluded A.T.G. was unable to provide a safe and secure

environment for her children. The Texas Department of Family and Protective Services filed suit

seeking temporary managing conservatorship of the two children, and on May 6, 2008, the trial court

signed an emergency order placing the children with the Department. After an adversary hearing on

May 13, 2008, the court signed temporary orders naming the Department temporary managing

conservator of the children and A.T.G. temporary possessory conservator, with limited access to and

possession of the children. The order allowed A.T.G. supervised visitation with the children two

times per month, contingent on “clean UA’s or with lowering levels of THC.”

When the case was called for trial on May 26, 2009, A.T.G. failed to appear. After hearing

the evidence, the trial court terminated A.T.G.’s parental rights, finding by clear and convincing

evidence:

(1) termination of the parent-child relationship between [A.T.G.] and the children . . . is in the children’s best interest;

(2) [A.T.G.] constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department . . . for not less than six months and: (1) the Department . . . has made reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or maintained significant contact with the children; and (3) the mother has demonstrated an inability to provide the children with a safe environment; and

(3) [A.T.G.] failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department . . . for not less than nine months as a result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the children.

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See TEX . FAM . CODE ANN . § 161.001(1)(N), (O); (2) (Vernon Supp. 2009). A.T.G. filed an affidavit

of indigency, a motion for new trial, and a statement of appellate points. See TEX . FAM . CODE ANN .

§263.405(b) (Vernon 2009). The trial court held a hearing at which A.T.G. again failed to appear.

No testimony was presented and no part of the trial record was presented. However, counsel for the

Department stated that during the trial, the court had taken judicial notice of the affidavits on file in

the clerk’s record, which set out the plan of services and A.T.G.’s failure to comply. At the

conclusion of the hearing, the trial court found A.T.G. is indigent, denied her motion for new trial,

and found her appellate points frivolous. See id. § 263.405(d). A.T.G. timely appealed.

DISCUSSION

When appeal is sought from an order terminating the parent-child relationship pursuant to

chapter 263, subchapter E, of the Texas Family Code, the trial court must determine whether “the

appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.” Id. An

appeal is frivolous when it lacks an arguable basis in either law or fact. De La Vega v. Taco Cabana,

Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.). We review the trial court’s

determination that the appeal is frivolous under an abuse of discretion standard. Id. A.T.G. contends

the trial court abused its discretion by finding her appellate issues are frivolous.

A.T.G. first argues she should be allowed to appeal the legal and factual sufficiency of the

evidence supporting the statutory grounds for termination. She contends the evidence is insufficient

to support termination under section 161.001(1)(N) of the Family Code because “Appellant did in

fact visit her children during the periods in which she was not incarcerated.” A.T.G. was

incarcerated from some time in November 2008 until March 9, 2009. At the hearing on the motion

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for new trial, A.T.G.’s attorney stated the caseworker testified at trial that A.T.G. visited the children

when she was not in jail. The Department’s attorney disputed counsel’s rendition of the evidence.

Although no evidence of the caseworker’s testimony was presented at the motion for new trial

hearing, the caseworker’s sworn permanency plan and progress reports, dated October 20, 2008 and

February 20, 2009, state A.T.G. had not participated in any parent/child visits at the Department.1

A.T.G. also contends the evidence is legally and factually insufficient to support termination

under section 161.001(1)(N) of the Family Code because “Appellant completed several items on her

family service plan.” The only basis for this assertion is counsel’s statement at the motion for new

trial hearing that his client told him she did perform some items on the service plan. The Department

disputed the statement and argued the trial evidence demonstrated A.T.G. did not complete any item

on the service plan, other than signing it. This is consistent with the caseworker’s sworn permanency

plan and progress reports in the clerk’s records. A.T.G. did not present any arguable basis in fact

or law for her legal and factual insufficiency points; therefore, the trial court did not abuse its

discretion by finding these appellate points frivolous.

A.T.G. next seeks to appeal on the ground “[t]he trial court violated [her] due process rights

by using §161.001(1)(O) as a ground for termination of [her] parental rights.” A.T.G.’s brief

contains no argument or authority explaining how her right to due process was allegedly violated or

how there is an arguable basis in the record for her position.2 By failing to adequately brief this

1 … A document in the clerk’s record entitled “Judge’s Notes” and dated May 26, 2009, the date of the trial, contains a handwritten notation stating “kids have not seen mom for over one year.”

2 … A.T.G. likewise did not articulate any legal or factual basis for this contention in the trial court, either in her pleadings or at the hearing on her motion for new trial.

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point, A.T.G. has waived it. See TEX . R. APP . P. 38.1(I); Eastin v. Dial, 288 S.W.3d 491, 501 (Tex.

App.—San Antonio 2009, pet. denied); Gardner v. Gardner, 229 S.W.3d 747, 756 (Tex. App.—San

Antonio 2007, no pet.).

Finally, A.T.G. contends she should be allowed to appeal the denial of her motion for new

trial on the ground that her failure to appear at trial was not intentional, and may have been the result

of ineffective assistance of counsel. However, because A.T.G. did not present any evidence at the

hearing on the motion for new trial to support her contention, the trial court did not abuse its

discretion in finding her appeal of this issue to be frivolous.

The trial court did not abuse its discretion in finding A.T.G.’s appellate points frivolous, and

we affirm that court’s judgment.

Steven C. Hilbig, Justice

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