In the Interest of T.G., a Child--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00882-CV
In the Interest of T.G., A Child,
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-PA-02129
Honorable Lori Massey, Judge Presiding (1)

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: May 30, 2007

AFFIRMED

 

This is an accelerated appeal from an order terminating Kim Gangemi's parental rights. See Tex. Fam. Code Ann. 263.405 (Vernon Supp. 2006). We affirm.

A trial court may order termination of the parent-child relationship if it finds clear and convincing evidence: (1) to support at least one statutory ground for termination, and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2006). In this case, the trial court found by clear and convincing evidence two statutory grounds for termination and that termination would be in the best interest of the child. (2) Accordingly, by order dated December 4, 2006, the trial court terminated Gangemi's parental rights to T.G.

Thereafter, Gangemi timely filed a notice of appeal and a motion for new trial and statement of appellate points. See id. 263.405(a), (b). She subsequently filed a first amended motion for new trial and statement of appellate points. As required, the trial court held a hearing on Gangemi's motion and statement. See id. 263.405(d). The trial court denied the motion for new trial and found Gangemi's appellate points frivolous. See id. The court did, however, find Gangemi indigent and appointed appellate counsel. See id.

Gangemi's court-appointed counsel has moved to withdraw and has filed a brief containing a professional evaluation of the record demonstrating there are no arguable grounds to be advanced. Appointed counsel concludes the appeal is frivolous. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, *4 (Tex. App.-San Antonio May 21, 2003, order) (applying Anders procedure to appeals from orders terminating parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.-San Antonio Sept. 10, 2003, no pet.) (mem. op.). Appointed counsel provided Gangemi with a copy of the brief and the motion to withdraw. He also informed her of her right to review the record and file her own brief. On March 14, 2007, this court issued an order advising Gangemi of

 

the filing of the Anders brief and advising her that if she desired to file a pro se brief, she was required to do so within thirty days of the date of the order. Gangemi has not filed a brief. Based on the foregoing, it is our duty to review the record and determine whether the trial court abused its discretion in determining that Gangemi's appellate points were frivolous. See Tex. Fam. Code Ann. 263.405(g) (Vernon Supp. 2006); In re R.M.G., No. 04-06-00319-CV, 2006 WL 3085757, *1 (Tex. App.-San Antonio Nov. 1, 2006, no pet.). An appeal from a termination order is frivolous if it lacks an arguable basis either in law or fact. In re R.A., No. 04-06-00138-CV, 2006 WL 2548829, *1 (Tex. App.-San Antonio Sept. 6, 2006, no pet.). In undertaking our review, we look only to the statement of appellate points and the record from the hearing on same. See Tex. Fam. Code Ann. 263.405(g), (i) (Vernon Supp. 2006).

In her statement of appellate points Gangemi argues she is entitled to a new trial because the trial court's findings are not supported by legally or factually sufficient evidence. More particularly, she contends the evidence was insufficient because the evidence presented by the Department of Family and Protective Services was hearsay and biased in favor of termination, rendering it inadmissable. However, at the hearing on the motion for new trial, Gangemi's attorney did not argue, much less establish, that trial counsel had objected to the evidence at trial on these grounds or any other. See Tex. R. App. P. 33.1(a) (stating that to preserve complaint for appellate review record must show complaint was made to trial court by request, objection, or motion that states grounds for ruling sought, unless apparent from context, and complies with rules of evidence or appellate procedure). Moreover, even if error was preserved, there is nothing in the record to establish that the complained of evidence was in fact hearsay or otherwise inadmissible. Thus, based on our review of the record, we conclude the trial court did not abuse its discretion in determining Gangemi's appellate points are frivolous. See R.A., 2006 WL 2548829 at *1.

Based upon the foregoing, we grant the motion to withdraw filed by Gangemi's appointed appellate counsel and affirm the trial court's judgment.

Steven C. Hilbig, Justice

1. Associate Judge Charles Montemayor entered the recommended order, which was adopted by the Honorable Lori Massey presiding in the 225th District Court. See Tex. Fam. Code Ann. 201.007, 201.013-.014 (Vernon 2002 & Vernon Supp. 2006).

2. The grounds for termination were: (1) Gangemi's failure to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of T.G., who had been in the conservatorship of the Department of Family and Protective Services for not less than nine months as a result of his removal from Gangemi under Chapter 262 of the Family Code for abuse or neglect; and (2) Gangemi's use of a controlled substance, as defined by Chapter 481 of the Health and Safety Code, in a manner that endangered the health or safety of T.G. and her failure to complete a court-ordered substance abuse treatment program, or after completion of such a program, continued abuse of a controlled substance. See Tex. Fam. Code Ann. 161.001(1)(O), (P) (Vernon Supp. 2006).