In the Interest of A.S.J., E.D.J., R.M.J. and T.J., Children--Appeal from 216th Judicial District Court of Bandera County

MEMORANDUM OPINION
No. 04-06-00051-CV
IN THE INTEREST OF A.S.J., E.D.J., R.M.J., AND T.J., children

From the 216th Judicial District Court, Bandera County, Texas

Trial Court No. 05-077

Honorable Camile Dubose, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini , Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 12, 2006

AFFIRMED

John Robert Jung and Jennifer Leigh Jung appeal the trial court's determination that an appeal of the order terminating their parental rights would be frivolous. In his brief and statement of appellate points filed with the trial court, John challenges the factual sufficiency of the evidence to support each of the three grounds for termination as well as the trial court's finding that termination was in the children's best interest. In her brief and statement of appellate points, Jennifer challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination was in the children's best interest and also contends her trial counsel was ineffective. Jennifer also asserts that the trial court erred in failing to appoint her counsel after her retained attorney was removed from the case due to his ineligibility to practice law. Both John and Jennifer contend the trial court erred in failing to grant an extension of time pursuant to section 263.401 of the Texas Family Code. After a thorough review of the record and the briefs on the merits, we conclude that the trial court did not abuse its discretion in determining that the Jungs' appeal would be frivolous, and we therefore affirm the trial court's judgment.

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.

Our review of the record reveals that the evidence is legally and factually sufficient to support at least one of the statutory grounds for termination and the trial court's finding that termination would be in the child's best interest. See Tex. Fam. Code Ann. 161.001 (Vernon 2005); In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.--San Antonio 2004, no pet.) (in termination proceedings, the petitioner must establish one or more of the statutory grounds for termination and must also prove that termination is in the best interest of the child). Specifically, there was evidence presented at trial regarding the Jungs' choices and conduct which endangered the physical and emotional well-being of the children. See Tex. Fam. Code Ann. 161.001 (1) (D), (E). Both John and Jennifer testified they tested positive for drugs while their children were in foster care and are currently using drugs. Additionally, Jennifer tested positive for methamphetamines, amphetamines, and marijuana while pregnant with T.J. There is evidence that Jennifer failed to have any contact with her children while they were in foster care and failed to provide her children with a safe environment. Further, the Jungs failed to complete their family service plans. John admitted he has not followed his family service plan by failing to participate in parenting classes and by using drugs. Jennifer, in addition to using drugs, has not participated in counseling, parenting classes, a drug alcohol assessment, or substance abuse treatment in accordance with her family service plan. A social worker, Michelle Silva, testified that it is in the children's best interest that the Jungs' parental rights be terminated.

With regard to the Jungs' contention that the trial court erred in failing to grant an extension, section 263.401 of the Texas Family Code states that: "The court may not retain the suit on the court's docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in...temporary managing conservatorship...." Tex. Fam. Code Ann. 263.401. Here, the Jungs' failed to provide any evidence of an extraordinary circumstance that would warrant an extension of time. The Jungs were aware they had one year to fulfill the requirements of their family service plans and failed to do so.

Jennifer also alleges her trial counsel was ineffective. However, Jennifer's counsel was not permitted to appear at the initial adversary hearing because his law license was suspended. She also contends that the trial court erred in not providing her counsel after her retained counsel was not permitted to represent her at the adversary hearing. The court offered to reset her case and allow her time to obtain other counsel. Jennifer indicated she did not wish to reset her case and signed an agreed order to that effect. At a later date, Jennifer appeared before the same court and requested court-appointed counsel, which the court provided.

Accordingly, we conclude that the trial court did not abuse its discretion in determining that an appeal based on the Jungs' asserted issues would be frivolous. The trial court's judgment is affirmed.

Phylis J. Speedlin, Justice