IN THE INTEREST OF H.M. AND K.I., CHILDREN

Annotate this Case

AFFIRM; Opinion Filed November 4, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01392-CV
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IN THE INTEREST OF H.M. AND K.I., CHILDREN
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On Appeal from the County Court at Law
Kaufman County, Texas
Trial Court Cause No. 76,980CC
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MEMORANDUM OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Myers
        Michelle Ivey seeks to appeal the trial court's termination of her parental rights to her minor children, H.M. and K.I., and she challenges the trial court's determination that her appeal is frivolous. We affirm.
Discussion
        In her only issue, appellant argues the trial court abused its discretion when it ruled her appeal was frivolous as provided by section 13.003(b) of the civil practice and remedies code and section 263.405(d)(3) of the family code.
        The termination of parental rights is a matter that implicates fundamental constitutional rights. In re S.N., 287 S.W.3d 183, 186 (Tex. App.-Houston [14th Dist.] 2009, no pet.). To terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has committed one of the acts prohibited under section 161.001(1) of the Texas Family Code and that termination of parental rights is in the child's best interest. Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2010); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
        On October 15, 2009, the trial court terminated appellant's parental rights after finding that she committed three of the acts listed in section 161.001, see Tex. Fam. Code Ann. § 161.001(1)(D), (E), and (O) (West Supp. 2010), and that termination would be in the children's best interest. On October 30, appellant filed a motion for new trial and submitted to the trial court a statement of the points on which she intended to appeal. See Tex. Fam. Code Ann. § 263.405(b)(2) (West 2008).
        Appellant's statement of points alleged that a new trial should be granted because (1) the trial court abused its discretion by denying appellant's objections to the jury charge; (2) the trial court abused its discretion by denying appellant's objections to “certain evidence or questions presented by” the Department of Family and Protective Services, the children's father, or the children's attorney ad litem; and (3) the evidence of abuse and neglect was legally and factually insufficient to support the court's judgment for the findings that:
 
a) [appellant] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well being of the child;
 
 
 
b) [appellant] engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well being of the child;
 
 
 
c) [appellant] 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;
 
 
 
d) that any factors show clear and convincing evidence that it is in the best interest of the children that [appellant's] parental rights be terminated.   See Footnote 1 
 
        At the November 5, 2009 hearing before the trial court, most of the hearing concerned the pauper's oath filed by appellant and whether she had resources on which she could rely to pay all or part of her appellate attorney's fees. After the trial court found appellant could afford to pay $245 per month to the county to offset appellate counsel's fees, the court turned its attention to the “motion for new trial and the frivolousness of the appeal.” Defense counsel advised the court that “we don't have any new evidence of any sort to present to the court” on the motion for new trial. Defense counsel then agreed with the court that the motion for new trial paralleled the statement of points on which she intended to appeal. The trial court asked counsel, “You indicated there was certain evidence that--to which you made objections to where I abused my discretion. Is there anything specific that you can at this point in time point me to?” Defense counsel replied, “Not at this time.” The court then asked counsel whether, “In terms of the sufficiency, that's just as a whole, is that my understanding?” Defense counsel stated, “That's correct.” The trial court denied the motion for new trial and found the appeal to be frivolous.   See Footnote 2 
        On November 9, the trial court signed a written order denying appellant's motion for new trial and finding that appellant's intended appeal was frivolous. See Tex. Fam. Code Ann. § 263.405(d)(3) (West 2008) (directing trial court to determine whether appellate points are frivolous as provided by Civil Practice and Remedies Code section 13.003(b)); Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (West 2002) (stating that frivolousness can be determined by considering “whether the appellant has presented a substantial question for appellate review”).         When a trial court makes a frivolousness finding, the parent's appeal is initially limited to the frivolousness issue. See Tex. Fam. Code Ann. § 263.405(g) (West 2008); In re J.J.C., 302 S.W.3d 436, 442 (Tex. App.-Houston [14th Dist.] 2009, pet. denied); Lumpkin v. Dep't of Family & Protective Servs., 260 S.W.3d 524, 526 (Tex. App.-Houston [1st Dist.] 2008, no pet.). The only trial court ruling before us is the finding that the appeal is frivolous, not the termination order, and we cannot reach the substantive merits of the appeal unless we conclude the trial court abused its discretion in finding the appeal was frivolous.   See Footnote 3  See In re J.J.C., 302 S.W.3d at 442; Lumpkin, 260 S.W.3d at 526. An appeal is frivolous if it lacks an arguable basis in either fact or law. See In re J.J.C., 302 S.W.3d at 444; Lumpkin, 260 S.W.3d at 527.
        We review the trial court's frivolousness finding under an abuse of discretion standard. Lumpkin, 260 S.W.3d at 526. Applying that standard, we decide whether the trial court acted without reference to any guiding rules or principles-in other words, we must decide whether the act was arbitrary or unreasonable. Id. at 527.
        An 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(i) (West Supp. 2010). Ineffective assistance of counsel claims are not subject to the procedural rules of section 263.405, see In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009), but the parties do not raise such arguments here.
        At this stage on appeal, in considering whether the trial court abused its discretion, we have only the reporter's record from the hearing on appellant's motion for new trial and statement of appellate points. See Tex. Fam. Code Ann. § 263.405(g) (West 2002); In re H.D.H., 127 S.W.3d 921, 923 (Tex. App.--Beaumont 2004, no pet.) (.We must determine whether, on the record before us [i.e., from the frivolousness hearing], the trial court abused its discretion in finding appellant presented no substantial question for appellate review and in finding the appeal to be frivolous. . ..); see also In re R.C., No. 04-05-00397-CV, 2005 WL 2367758, at *2 (Tex. App.--San Antonio Sept. 28, 2005, no pet.) (mem. op.). During that hearing, appellant's trial counsel did not attack the trial court's findings supporting termination or summarize for the court why the evidence was insufficient to support the trial court's findings. No evidence was introduced or admitted except for appellant's pauper's oath application. Furthermore, appellant's brief does little more than restate the broad issues raised in her statement of points (and the accompanying motion for new trial), and it offers no legal argument or authority to show that she presented a substantial question for appellate review. Nor does she allege a due process violation. Based on the record before us, we conclude the trial court did not abuse its discretion in determining that appellant's appeal was frivolous. We overrule appellant's issue.
        We affirm the trial court's order.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
091392F.P05
 
Footnote 1 These same issues were raised in appellant's motion for new trial.
Footnote 2 According to the record, the trial court that conducted the hearing was the same trial court that presided over the trial of this case, and the trial court noted that it recalled the trial testimony and referred to rulings that it made at trial.
Footnote 3 The trial court's frivolous finding also results in a denial to an indigent appellant of the right to a free reporter's record and clerk's record of the underlying trial. See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(a)(2)(A) (West 2002); In re T.C., 200 S.W.3d 788, 792 (Tex. App.--Fort Worth 2006, no pet.).

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