In the Interest of C.P., et al., Children--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00790-CV
IN THE INTEREST OF C.P., et al.
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-PA-00932
Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 20, 2004

AFFIRMED

Appellant Tracy Peavy appeals the trial court's termination of her parental rights to her four children. Peavy's court-appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious points to raise on appeal. See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App. - San Antonio May 21, 2003, no pet.) (applying Anders procedure in appeal from termination of parental rights). In compliance with the procedure in Anders, counsel provided Peavy with a copy of his brief and advised her of her right to review the record and file her own pro se brief if she disagreed with his determinations regarding her appellate issues. Peavy did not file a pro se brief. Peavy's counsel has also filed a motion to withdraw. After conducting a full examination of counsel's brief and the record on appeal, we find the appellate points presented are without merit and, therefore, affirm the judgment of the trial court and grant counsel's motion to withdraw.

Background

Peavy's parental rights to her four children were terminated in a final decree following a jury trial on September 26, 2003. Her trial counsel filed a motion for new trial, notice of appeal, affidavit of indigency, and statement of appellate points on October 10, 2003. The trial court conducted a hearing on October 22, 2003, and denied the motion for new trial, sustained Peavy's claim of indigency, and found that two of the three appellate points were not frivolous.

ANALYSIS

With respect to the first appellate point concerning the factual sufficiency of the evidence regarding best interest, we have conducted a thorough review of the record and agree with the trial court that the point is frivolous. The standard of review in a factual sufficiency challenge to termination findings is "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Peavy's probation officer, Brian Price, testified that Peavy tested positive for cocaine while on probation for forgery, resulting in a revocation of her probation and her incarceration in state jail for two years. This caused Peavy's subsequent unavailability to assume the care and responsibility for her children. Child Protective Services workers testified about incidents when Peavy's young children were left without adequate supervision and Peavy could not be located to assume responsibility for them, about Peavy's failure to complete the court ordered services in her service plan, and her lack of motivation to participate in drug treatment despite her significant drug history. Peavy herself testified that she had tested positive for cocaine while pregnant with her youngest child, and that she was not scheduled to be released from incarceration, and would therefore be unavailable to assume care for her children, until October 2004. We find that the record includes evidence sufficient for a factfinder to be able to reasonably form a firm belief or conviction in the truth of the State's allegations and grounds for termination and, therefore find Peavy's first appellate point to be frivolous.

Peavy's second appellate point asserts that the trial court erred by failing to submit a question to the jury on whether termination was in the children's best interest. The Texas Supreme Court has held that the submission of a single broad-form question concerning whether parental rights should be terminated is proper. Tex. R. Civ. P. 277; Texas Department of Human Services v. E.B., 802 S.W.2d 647, 648-49 (Tex. 1990). In the present case, the charge contained all of the essential elements, including a description of a parent's rights and duties, definitions of the terms "termination" and "clear and convincing evidence," a list of factors to consider in determining the best interest of the child, and instructions regarding the statutory grounds for termination and the necessity of a finding of best interest. See Tex. Fam. Code Ann. 161.001 (1), 161.206 (Vernon 2002 & Supp. 2004). The instruction immediately preceding the single controlling question clearly states that in order for the parent-child relationship to be terminated, "it must also be proved by clear and convincing evidence that the termination of the parent-child relationship is in the best interest of the children." The broad-form question posed to the jury mirrors that expressly approved by the Texas Supreme Court in E.B. See E.B., 802 S.W.2d at 648. The standard of review for error in a jury charge is abuse of discretion, which "occurs only when the trial court acts without reference to any guiding principle." Id. at 649. Failure to object to any alleged error in the form of a jury charge at trial waives review of that complaint on appeal. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 274; In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003), cert. denied sub nom. Dossey v. Tex. Department of Protective & Regulatory Services, 124 S. Ct. 1674 (2004). The charge in this case, which was not objected to at trial, tracked both the language of the Texas Family Code and the Texas Pattern Jury Charge, and asked the controlling question; therefore, we find this point to be without merit. See E.B., 802 S.W.2d at 648; COMM. ON PATTERN JURY CHARGE, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES PJC 218.1A (2003).

Peavy's third appellate point asserts that the trial court erred in proceeding to trial without all necessary parties before the court. Specifically, Peavy argues that the maternal grandmother, who was previously named sole managing conservator of C.P., was not served with the petition for termination of Peavy's parental rights. (1) At trial, Peavy moved for a continuance and argued that proceeding to trial without service on the grandmother was error for two reasons: (1) it would violate the constitutional rights of the grandmother to hire an attorney, participate in discovery and prepare for trial; and (2) it would compromise Peavy's ability to present her case because the grandmother possessed information that was vital to Peavy's defense. We find both arguments flawed.

An appellant may not complain about errors which do not directly injure the appellant or which merely affect the rights of others. Buckholts Independent School District v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982). Peavy does not have standing to raise any complaints regarding the constitutional rights of the grandmother which may or may not have been violated by the trial court's actions.

A party may move for a continuance on the ground that a material witness is unavailable. Tex. R. Civ. P. 252. If the witness thereafter appears and testifies at trial, however, any alleged error in denying the continuance based on the witness's absence is cured. See Jones v. John's Community Hospital, 624 S.W.2d 330, 333 (Tex. App. - Waco 1981, no writ) (noting that if the material testimony is available to the jury at trial there is no prejudice created by the denial of a continuance). The grandmother did in fact appear at trial and testify as a witness with all parties having the opportunity to question her. Thus, the grandmother's testimony was presented to the jury for their consideration. We therefore find this appellate point also to be without merit.

For the foregoing reasons, the judgment of the trial court is affirmed and we grant the motion to withdraw filed by Peavy's appellate counsel.

Phylis J. Speedlin, Justice

1. The trial court, after hearing argument on the issue, found that the grandmother was not a party to the parental termination action and denied Peavy's request that the grandmother be appointed counsel.