In the Interest of K.M., J.B.M., J.M.P., P.G.P., Children--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00259-CV
IN THE INTEREST OF K.M., J.B.M., J.M.P. AND P.G.P, CHILDREN
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-PA-01967
Honorable Andy Mireles, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 28, 2004

AFFIRMED

In this case, the trial court concluded that ample evidence existed for termination of Robert Perez's and Guadalupe Morado's parental rights as to their children J.M.P. and P.G.P.. The court further concluded that there is sufficient evidence to limit Morado's rights to possessory conservator of her two other children, K.M. and J.B.M.. Following the trial court's ruling, Perez and Morado requested a hearing on their motion for new trial and statement of appellate points, contending there was no evidence, and in the alternative, insufficient evidence to show that the termination of both of their parental rights to J.M.P. and P.G.P and that the limitation of Morado's parental rights to K.M. and J.B.M. is in the best interest of the children. The trial court conducted a hearing on the issue of whether Perez's and Morado's appellate points are frivolous and concluded that the points are frivolous. (1) We agree that Perez's and Morado's appellate points are frivolous and affirm the order of the trial court.

Standard of Review

Frivolous Appeals

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.) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). When determining if an appeal is frivolous, we may consider questions of law and questions of fact. Id. Additionally, a judge may consider whether the appellant has presented a substantial question for appellate review. Tex. Civ. Prac. & Rem. Code Ann. 13.003(b) (Vernon 2002). We use an abuse of discretion standard when considering whether a trial court was correct in deciding whether a petition is frivolous. De La Vega, 974 S.W.2d at 154.

Evidentiary Challenges

In reviewing the trial court's conclusion that Perez's and Morado's appellate points are frivolous, we are mindful of the standards of review for evidentiary challenges. In order to protect the parent-child relationship, before a parent's rights can be terminated, the Texas Family Code requires a showing by clear and convincing evidence that the parent in question behaved in some manner that was detrimental to the child. Tex. Fam. Code Ann. 161.001 (Vernon 2002). "'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 2002).

In a legal sufficiency review when the burden is clear and convincing evidence, we "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. We must also "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. We must, however, consider undisputed evidence even if it does not support the finding. Id.

In a factual sufficiency review, we must give due consideration to evidence the factfinder could have reasonably found to be clear and convincing. Id. We must determine "'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.'" Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We also consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.

Discussion

Robert Perez

Perez's appellate points concern the sufficiency of the evidence to support the termination of his parental rights. We agree with the trial court that Perez's appellate points lack merit. Perez is an acknowledged member of the Mexican Mafia and was convicted of murder charges approximately seven years ago. He was given a life sentence in a federal murder case and was found guilty of capital murder in a state court case and is presently on death row at the Polunsky Unit of the Texas Department of Corrections. The State offered into evidence the extensive criminal history of Perez, including his murder convictions and his child support payment history, which reported his failure to pay child support for several years.

In regards to the relationship between the children and Perez, there has been little or no communication between them with the exception of an occasional letter and one or two visits after Perez's arrest. Not only has Perez had very minimal contact with the children, his contact has not always been appropriate. One letter of communication between Perez and his children was a drawing sent by Perez which depicted a clown with a "kind of monster-looking or devilish head" and was deemed inappropriate by witnesses in respect to the two young children. J.M.P. has severe emotional problems and has been hospitalized five times and has been on as many as ten medications at a time. Witnesses testified that because J.M.P. is in such a fragile condition, she should not be subjected to such inappropriate communications from her father. Witnesses testified that it would be in the best interest of the children to try to keep them together and provide stability and permanency with their foster mother who is willing to adopt the children. Based on the evidence of the children's condition, Perez's past, and the lack of a substantial relationship between the children and their father, the children's therapist recommended that it would not be in the best interest of the children to subject them to visits with him in the prison environment, only to have him be put to death potentially.

To terminate the parental relationship under section 161.001(1)(Q), the State must prove by clear and convincing evidence that the parent "knowingly engaged in criminal conduct that has resulted in the parent's (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition." Tex. Fam. Code Ann. 161.001(1)(Q) (Vernon 2002). Perez was arrested and convicted six to seven years ago and is currently serving his sentence on death row, thus fulfilling the requirements of section 161.001(1)(Q). Perez's convictions, his lack of communication with the children, and his failure to pay child support, as well as the emotional conditions of the children, all prove by clear and convincing evidence that termination of the parent-child relationship is in the best interests of J.M.P. and P.G.P.

Guadalupe Morado

Morado also disputes the sufficiency of the evidence to support the total relinquishment of her parental rights to J.M.P. and P.G.P. and the partial relinquishment of her rights to K.M. and J.B.M.. However, Morado signed a mediated settlement agreement in which she agreed to have her parental rights terminated as to J.M.P. and P.G.P. and limited as to K.M. and J.B.M.. At the hearing, Morado testified that she understood that the document is irrevokable and once she submitted it to the court and signed it, it could not change. She also stated that she signed the document voluntarily because she believed it to be in the best interest of the children. Therefore, there is sufficient evidence to prove that Morado agreed to relinquish her parental rights to J.M.P. and P.G.P. and to limit them to possessory conservator as to K.M. and J.B.M. Accordingly, we hold that Morado's appellate points lack merit.

The trial court did not abuse its discretion in determining that appellants' appellate points are frivolous. Accordingly, we affirm the order of the trial court.

Catherine Stone, Justice

1. At the initial hearings on the parents' motions, the trial court entered orders denying the motions for new trial and finding the appellate points frivolous. However, no reporter's record of these hearings was made. Pursuant to Tex. Fam. Code Ann. 263.405(g), this court instructed the trial court to conduct an additional hearing on the issue of frivolous appellate points and to file a record of such hearing. The hearing was conducted and the record of that hearing is now before the court. A full record of the trial is also before this court.