In the Interest of B.L. and A.L., Children--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00621-CV

IN THE INTEREST OF B.L. and A.L., Children

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-PA-02139

Honorable O. Rene Diaz, Judge Presiding

Opinion by: Phylis J. Speedlin , Justice
Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 12, 2006

AFFIRMED

Christy Nugent appeals the judgment of the trial court terminating her parental rights to her two children, B.L. and A.L. In three issues, Nugent contends that the evidence is factually and legally insufficient to support the court's finding that the termination was in the best interest of the children. We overrule Nugent's issues and affirm the judgment.

Factual and Procedural Background

Christy Nugent is the mother of two children: B.L. and A.L. On December 12, 2003, the Texas Department of Protective and Regulatory Services (the "Department") filed a petition to terminate Nugent's parental rights to both children. Subsequently, Nugent was taken into federal custody on March 29, 2004 and later pled guilty to mail fraud. She was sentenced to 33 months confinement.

The trial court held a merits hearing on December 10, 2004. Nugent was present via telephone from a federal correctional facility in Fort Worth, Texas and testified that she had previously signed an affidavit to voluntarily relinquish her rights to these children. However, she changed her mind after the trial court entered a permanent injunction against Nugent from having any contact with her children. The court signed a March 1, 2005 order terminating Nugent's parental rights, and Nugent subsequently filed a motion for new trial and statement of appellate points. The parties agreed to set aside Nugent's previous affidavit of relinquishment and to a new trial. The trial court held another hearing at which it again terminated Nugent's rights. The court then signed its order of termination on August 15, 2005. Nugent again filed a motion for a new trial and statement of appellate points. She also filed a notice of appeal on August 31, 2005. The trial court subsequently found that one appellate point, under section 161.001(1)(Q) of the Texas Family Code, was not frivolous but all others were ruled frivolous. Tex. Fam. Code Ann. 161.001(1)(Q) (Vernon Supp. 2005). This appeal followed.

Discussion

Nugent brings three issues on appeal: (1) the evidence is legally and factually insufficient to support the trial court's finding that, under section 161.001(1)(Q) of the Texas Family Code, she knowingly engaged in criminal conduct that resulted in her conviction of an offense in which her confinement or imprisonment would make her unable to care for her children for not less than two years from the date the petition for termination was filed; (2) the trial court abused its discretion in ruling frivolous Nugent's allegation that the evidence was both factually and legally insufficient to support the trial court's finding that the termination of her parental rights was in the best interests of the children; and (3) the trial court abused its discretion in ruling frivolous Nugent's allegation that the evidence was both factually and legally insufficient to support the trial court's finding that Nugent be permanently enjoined from having any contact with the children. Tex. Fam. Code Ann. 161.001(1)(Q). A trial court may order termination of a parent-child relationship if two elements are established. Tex. Fam. Code Ann. 161.001(1), (2) (Vernon Supp. 2005); In re S.D., 980 S.W.2d 758, 761-62 (Tex. App.--San Antonio 1998, pet. denied). First, the parent must have engaged in any one of the acts or omissions specifically named in the Texas Family Code as grounds for termination. Tex. Fam. Code Ann. 161.001(1). Second, termination of a parent-child relationship must be in the best interest of the child. Tex. Fam. Code Ann. 161.001(2).

Section 161.001(1)(Q) of the Texas Family Code

In this case, the trial court terminated Nugent's rights under section 161.001(1)(Q), which provides for termination where the parent has "knowingly engaged in criminal conduct that has resulted in the parent's conviction of an offense," and confinement or imprisonment creates an inability to care for the child lasting for not less than two years from the date of filing the petition. Tex. Fam. Code Ann. 161.001(1)(Q). In her first point of error, Nugent asserts that the evidence is legally and factually insufficient to support the trial court's finding that Nugent's rights should be terminated under section 161.001(1)(Q). She specifically maintains that because she was not confined or imprisoned at the time the Department filed its petition, section 161.001(1)(Q) does not apply. We disagree.

Parental rights can only be terminated by a showing of clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 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." Id. at 264; see also Tex. Fam. Code Ann. 101.007 (Vernon 2002). In a parental termination case, we do not apply the traditional legal and factual sufficiency standards due to the "clear and convincing"standard of proof. In re J.F.C., 96 S.W.3d at 264-65. Instead, for legal sufficiency, we "look at all 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." Id. at 266. We assume disputed facts were resolved in favor of the verdict if it is reasonable to do so, and we disregard all evidence that could be reasonably disbelieved. Id. This does not mean we disregard all evidence that does not support the finding; doing so could skew our analysis. Id. However, if we find no fact finder could have formed a firm belief or conviction that its finding is true, we must conclude the evidence is legally insufficient. Id.

To determine factual sufficiency, we consider the evidence a fact finder could reasonably have found to be clear and convincing, and we examine whether this evidence is such that a reasonable fact finder could form a firm belief or conviction the allegations are true. Id. We give consideration to whether the disputed evidence is such that a fact finder could not reasonably resolve it in favor of its finding. Id. If, in light of the entire record, the disputed evidence that cannot have reasonably been credited in favor of the finding is so significant that the fact finder could not have reasonably formed a firm belief or conviction in favor of termination, we must conclude the evidence is factually insufficient. Id.

In applying these standards set forth above, we examine whether there is legally and factually sufficient evidence to satisfy section 161.001(1)(Q), which reads:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

. . .

(Q) 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).

According to Nugent's own testimony, she engaged in a scam in which she advertised and led families to believe that she had children available for adoption through a legitimate adoption agency. She pled guilty to mail fraud involving this adoption scam. Nugent testified that she was sentenced to 33 months confinement. She further testified that though she could be released as early as February 2006, it is possible that she could serve the entire 33 months. It is not necessary to present evidence that Nugent was confined at the time the petition was filed. The statute, by its plain language, does not so require. See Tex. Fam. Code Ann. 161.001(1)(Q); see In re A.V., 113 S.W.3d 355, 360 (Tex. 2003) (subsection (Q) is to be read prospectively); see also In re H.R.M., No. 14-05-00281-CV, 2006 WL 1147806, at *2 (Tex. App.--Houston [14th Dist.] Feb. 14, 2006, no pet.) (use of present tense language, "will be confined or imprisoned and unable to care for the child for at least two years after termination proceedings begin," indicates that subsection (Q) does not require confinement at the time the termination petition is filed); In re J.L.R., No. 11-05-00094-CV, 2006 WL 728069, at *2 (Tex. App.--Eastland March 23, 2006, no pet.) (termination petition was filed before confinement began). When looking at the evidence in the light most favorable to the finding, it is clear that a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Accordingly, the evidence satisfies subsection (Q), and we therefore, hold that this evidence is legally and factually sufficient to support the trial court's finding under Texas Family Code section 161.001(1)(Q).

Best Interest of the Children

In Nugent's second point of error, she alleges that the trial court abused its discretion in ruling frivolous her allegation that the evidence was both factually and legally insufficient to support the trial court's finding that the termination of her parental rights was in the best interest of the children. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in determining that Nugent's appeal on that point would be frivolous, and we therefore affirm the trial court's judgment on this ground.

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.) (en banc). In determining whether an appeal is frivolous, the trial judge considers whether the appellant has presented a substantial question for appellate review. Tex. Civ. Prac. & Rem. Code Ann. 13.003 (b) (Vernon 2002); De La Vega, 974 S.W.2d at 153-54. We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. De La Vega, 974 S.W.2d at 154. First, in determining the best interest of the children, courts generally consider the following: (A) the desires of the children; (B) the emotional and physical needs of the children now and in the future; (C) the emotional and physical danger to the children now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the children; (F) the plans for the children by these individuals or by the agency seeking custody; (G) the stability of the home or the proposed placement; (H) the acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omission of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but it does include considerations that appear to be pertinent. Id. at 372. Applying these factors to the facts of this case, we find no error in the trial court's finding that termination was in the children's best interest.

Through each of its witnesses, the Department presented evidence suggesting that termination was in the children's best interest. Nugent testified by telephone from a federal correctional facility in Fort Worth, Texas, where she is serving a 33-month sentence. She said that she was currently on stroke medication, blood thinners and medications to treat her seizure and bipolar disorders, including a mood stabilizer. In her own words, she said, "if it is the Lord's will ... that the children be adopted by the family that has them right now, ... I have found peace with that ... and if the court so decides that my children should go into an adoptive home, I know that is what is best for them."

David Davila, the Department's caseworker, also testified. He said that all potential rights of the fathers of B.L. and A.L. were terminated and that the children were removed from Nugent's custody because of physical neglect and abuse. He testified that at the time the children were taken into state custody Nugent had legal custody of them, but they were in the possession of Nugent's aunt because Nugent was in the hospital. Davila testified that the children were placed in a foster home on October 30, 2004 and "are doing very well there." Davila testified that it is in the best interest of the children to be adopted by the foster family, who would like to do so, and nothing stands in the way of this happening if the rights of Nugent are terminated. He said, "I think it's important that the children get stability, and you know, in the foster home they have been receiving stability, their routine, and they have adjusted well to the family." Davila also testified regarding his concerns about whether Nugent would continue to take her medications after being released from incarceration.

Kimberly Dolphie, a caseworker with the Homes of Saint Mark in Houston, Texas, also testified. Homes of Saint Mark is the organization through which the children were placed with their foster family. Dolphie has visited the children in that home and feels that the children are in a safe, loving and protective household. She testified that B.L. and A.L. have bonded to their current foster family. Dolphie further testified that she thinks it would be in the children's best interest that the court order a permanent injunction to eliminate any contact in the future unless the foster family would desire it. The foster family has "grave" concerns that Nugent is attempting to gather information about where the children are located.

After reviewing the record, we believe ample evidence was presented to the trial court to support a finding that termination of Nugent's parental rights was in the best interest of her children. Because we believe such evidence is sufficient--both legally and factually--to support the trial court's finding, we cannot say the trial court abused its discretion in concluding Nugent's appellate point was frivolous. See In re J.F.C., 96 S.W.3d at 266. Nugent's second issue is overruled.

Permanent Injunction

In Nugent's third issue, she challenges the trial court's discretion in ruling frivolous Nugent's allegation that the evidence is factually and legally insufficient to support the trial court's order permanently enjoining Nugent from contact with the children. Yet, without presenting any argument, she simply "reserves her right to brief this point" in the future. Under the Texas Rules of Appellate Procedure, an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Because Nugent has inadequately briefed the issue, nothing is presented for our review. Id.; see Fredonia State Bank v. General Am. Life Ins., 881 S.W.2d 279, 284-85 (Tex. 1994) (appellate court has discretion to hold points of error waived due to inadequate briefing).

Having overruled Nugent's issues on appeal, we affirm the trial court's order of termination.

Phylis J. Speedlin , Justice