In the Interest of B.N.V., et al., Children--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00671-CV

IN THE INTEREST B.N.V., K.W.B., I.I.B., and H.W.B.

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-PA-02005

Honorable David A. Berchelmann, Jr. , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Rebecca Simmons , Justice

Delivered and Filed: July 26, 2006

AFFIRMED

Pursuant to section 263.405 of the Texas Family Code, this is an accelerated appeal from an order terminating the parental rights of Brandy Valdez and Kevin Wade Bowen, Sr. We affirm.

The trial court may order the termination of the parent-child relationship if the court finds by clear and convincing evidence at least one statutory ground for termination and that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001 (Vernon 2005).

With respect to Brandy Valdez, in its order of termination, the trial court found by clear and convincing evidence that termination was in the children's best interest and that Valdez had

(1) constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or maintained significant contact with the children; and (3) the mother has demonstrated an inability to provide the children with a safe environment; and

(2) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children.

See id. 161.001(1)(N), (O).

Valdez filed a motion for new trial and statement of appellate points. The trial court sustained her affidavit of indigence, but denied her motion for new trial and found her appellate points to be frivolous. Her court-appointed appellate attorney filed a brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. Her appointed attorney concludes that the appeal is without merit, and his brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.--San Antonio 2003, no pet.) (applying Anders procedure to appeals from termination of parental rights). A copy of counsel's brief was delivered to Valdez, who was advised of her right to examine the record and file a pro se brief. No pro se brief has been filed. After reviewing the record, we agree that the appeal is frivolous and without merit.

With respect to Kevin Wade Bowen, Sr., the alleged biological father, the trial court found by clear and convincing evidence that termination was in the best interest of the children and that Bowen

(1) after having waived service of process or being served with citation in this suit, did not respond by timely filing an admission of paternity or by filing a counterclaim for paternity or for voluntary paternity to be adjudicated under chapter 160 of the Texas Family Code before the final hearing in this suit;

(2) constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the children to the father; (2) the father has not regularly visited or maintained significant contact with the children; and (3) the father has demonstrated an inability to provide the children with a safe environment; and

(3) failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children.

See Tex. Fam. Code Ann. 161.001(1)(N), (O), 161.002(b) (Vernon 2005).

Bowen filed a motion for new trial and statement of appellate points, arguing that the trial court's findings were supported by legally and factually insufficient evidence. The trial court overruled Bowen's affidavit of indigence, denied his motion for new trial, and found his appellate points to be frivolous. We must, therefore, review the record and consider whether his appellate points are frivolous. See Tex. Fam. Code Ann. 263.405(g) (Vernon Supp. 2005).

An appeal from a termination order is frivolous if it lacks an arguable basis either in law or in fact. In re M.R.R., No. 04-04-00723-CV, 2004 WL 2597449, at *1 (Tex. App.--San Antonio 2004, no pet.). We review a trial court's findings under section 263.405 of the Texas Family Code for abuse of discretion. Id.

At the hearing on the motion for new trial and statement of appellate points, Bowen's attorney did not attack the trial court's findings supporting termination or summarize for the trial court the evidence that was missing or insufficient to sustain the findings. Based on our review of the record, we conclude that the trial court did not abuse its discretion in determining that Bowen's appellate points were frivolous.

We, therefore, affirm the trial court's order.

Karen Angelini , Justice