In the Interest of Y.M.G., et al., Children--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00843-CV

IN THE INTEREST OF Y.M.G. and E.G., Children

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-PA-00027

Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 9, 2003

AFFIRMED

Following the trial court's decree terminating the parent-child relationship, appellant (the children's mother) filed a Motion for New Trial and Statement of Appellate Points. In an order signed on November 22, 2002, the trial court denied the motion for new trial, sustained appellant's affidavit of indigence, and ruled that appellant's appellate points were frivolous. This court has considered the appeal on the record and without briefing. See Tex. Fam. Code Ann. 263.405(g) (Vernon 2002). We affirm.

BACKGROUND

In its decree of termination, the trial court found that appellant had "executed an unrevoked or irrevocable affidavit of relinquishment," failed to comply with the provisions of a court order establishing actions necessary for her to obtain the return of the children, and that she had a mental or emotional illness or mental deficiency rendering her unable to provide for the physical, mental, and emotional needs of the children and will continue to render her unable to provide for the children until the children's eighteenth birthdays. In her appellate points, appellant raised legal and factual sufficiency complaints regarding the trial court's termination order and asserted it was constitutionally impermissible to terminate her parental rights on "mental health" grounds while, at the same time, terminating her rights for failure to comply with a service plan that her emotional or mental health prevented her from following.

DISCUSSION

Under Family Code section 263.405, a trial court may determine an appeal from an order terminating the parent-child relationship is frivolous as provided by Texas Civil Practice and Remedies Code section 13.003(b). Tex. Fam. Code Ann. 263.405(d)(3). In determining whether an appeal is frivolous, a court "may consider whether appellant has presented a substantial question for appellate review." See Tex. Civ. & Prac. Code Ann. 13.003(b) (Vernon 2002). An appeal is frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.--San Antonio, 1998, no pet.). We review a trial court's determination under section 13.003(b) under an abuse of discretion standard. Id.

An irrevocable affidavit relinquishing a parent's rights and a petition for termination can support a finding that termination is in the best interest of the child and a judgment of termination. Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 394 (Tex. 1982); In re Bruno, 974 S.W.2d 401, 405 (Tex. App.--San Antonio 1998, no pet.); see Tex. Fam. Code Ann. 161.001(1)(K), 161.103. The affidavit may be set aside only upon a finding, by the preponderance of the evidence, that it was procured by coercion, duress, fraud, deception, undue influence, or overreaching. In re Bruno, 974 S.W.2d at 405.

At the new trial hearing, appellant's attorney informed the court that appellant is homeless, the telephone number she gave him was incorrect, and he did not know her current location. The record does not indicate that appellant attempted to revoke her affidavit of voluntary relinquishment (1) before the court signed the decree of termination. At the hearing, appellant's counsel did not assert the affidavit was procured by coercion, duress, fraud, deception, undue influence, or overreaching. The record contains sufficient evidence to support the trial court's finding that appellant did not comply with her service plan. After reviewing the record and the transcript of the new trial hearing, we conclude the trial court did not abuse its discretion in determining the appeal points were frivolous.

We affirm the trial court's order.

Sandee Bryan Marion, Justice

PUBLISH

1. The record contains an affidavit of voluntary relinquishment as to only one of the two children.