In the Interest of B.D., A Child--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00272-CV
IN THE INTEREST OF B.D.
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-PA-01141
Honorable Lori Massey (1), Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: October 20, 2004

AFFIRMED

Timothy Dalton ("Dalton") appeals the trial court's determination that an appeal of the order terminating his parental rights would be frivolous. The sole issue Dalton intended to present on appeal is whether the State proved by clear and convincing evidence that termination was in the best interest of the child and that sufficient grounds existed to support termination. This court ordered the appeal to be considered on the record without briefing. See Tex. Fam. Code Ann. 263.405(g) (Vernon 2002).

An appeal is frivolous when it lacks arguable basis either in law or in fact. De La Vega v. Taco Cabana, 974 S.W.2d 152, 154 (Tex. App.--San Antonio 1998, no pet.). In determining whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a substantial question for appellate review. Id. A trial court's determination that an appeal is frivolous is reviewed under an abuse of discretion standard. Id.

At the hearing before the trial court, Dalton's attorney stated that his primary complaint related to the sufficiency of the evidence to support the termination and that Dalton was not given sufficient time to complete his service plan. Dalton's attorney asserted that Dalton was incarcerated at the time of B.D.'s removal and "there was no history of his behavior as far as when he was in the relationship with the mother." The trial court questioned Dalton's attorney regarding whether Dalton was aware of the mother's drug use and stated the trial court's belief that "it was pretty obvious that he would have been and left the child in her care." The trial court confirmed that the record contained evidence of the drug use and drug habits of B.D.'s mother. The attorney for the Texas Department of Protective & Regulatory Services ("DPRS") reminded the trial court that the record reflected the mother had a history of panhandling and prostitution and the record also contained Dalton's criminal history and evidence regarding the termination of his parental rights to two other children.

Because the reporter's record and clerk's record were filed in this appeal before we abated the cause and the trial court determined an appeal would be frivolous, our record contains a complete record of the hearing resulting in the termination order. The clerk's record contains a permanency plan and progress report that contains Dalton's background and history. At the time DPRS received the referral for B.D., Dalton was incarcerated for failure to pay child support. Dalton and B.D.'s mother were the parents of another child who was removed by the State of New York when the child tested positive for cocaine at birth. Another of Dalton's daughters was two-years-old when she sustained skull fractures, epidural hematoma, subdural hematoma, and bruises to her buttocks while in Dalton's care. The State found reason to believe that Dalton physically abused his daughter. Ultimately, that child and her sibling were removed and placed for adoption. At the hearing, Dalton admitted that he had been arrested for failure to pay child support and was released when he "gave up my rights to my daughter to my ex." Dalton had difficultly recalling the names of his seven children and their ages or birth dates. Dalton could not recall B.D.'s birth date. Dalton admitted that at the time of the hearing he was incarcerated for theft. Dalton stated that he had not sent any money for B.D.'s support because the court had not ordered him to send money. Dalton stated that he broke up with the mothers of his other children because "two or three of them did prescription drugs and heroine." Dalton admitted that he left the children in their mothers' care when he broke up with the mothers. In making her ruling, the trial judge stated, "And I don't think you get to avoid your duty to your child because you are incarcerated when you're knowingly placing that child in the care of someone that you should be concerned about. You said earlier that your other children, you left them with the mothers because you broke up with the mothers knowing that those mothers were probably unfit parents."

Having reviewed the record, we conclude that the trial court did not abuse its discretion in determining that an appeal of the order terminating Dalton's parental rights on sufficiency grounds would be frivolous. The trial court's order is affirmed.

PER CURIAM

1. The Honorable Lori Massey presided over the hearing to determine whether Dalton's parental rights should be terminated and the hearing to determine whether an appeal of the termination order would be frivolous.