In the Interest of R.A., III, et al., Children--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00138-CV

IN THE INTEREST OF R.A., A.P, I.A., J.G., C.V., R.V., and J.V.

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 2004-PA-02325

Honorable Barbara Nellermoe , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Alma L. L pez , Chief Justice (concurring without opinion)

Karen Angelini , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: September 6, 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 Martha Palacios. We affirm.

The trial court may order the termination of the parent-child relationship if it 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 Supp. 2006). Here, the trial court found by clear and convincing evidence that there were two statutory grounds for terminating Palacios's parental rights and that termination was in the best interest of the children.

On the same day she filed her notice of appeal and affidavit of indigence, Palacios timely filed a motion for new trial and statement of appellate points. See TEX. FAM. CODE ANN. 263.405(b) (Vernon Supp. 2006). After a hearing, 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). No pro se brief has been filed. After reviewing the record, we agree that the appeal is frivolous and without merit.

In her motion for a new trial and statement of appellate points, Palacios argued that her absence at the termination hearing mandates a new trial and the trial court's findings are supported by legally and factually insufficient evidence. After a hearing, the trial court overruled Palacios's motion for new trial and found her appellate points to be frivolous. We must review the record and consider whether the trial court abused its discretion in determining that her appellate points were frivolous. See TEX. FAM. CODE ANN. 263.405(g) (Vernon Supp. 2006); In re M.R.R., No. 04-04-00723-CV, 2004 WL 2597449, at *1 (Tex. App.--San Antonio 2004, no pet.) (holding that an appellate court reviews a trial court's findings under section 263.405 for abuse of discretion). An appeal from a termination order is frivolous if it lacks an arguable basis either in law or in fact. Id. In her statement of appellate points, Palacios argued that she is entitled to a new trial for the following reason: she was unable to appear at the termination hearing because she was detained by the Bexar County Sheriff. However, at the hearing on her motion for a new trial and statement of appellate points, her attorney argued that Palacios had not actually been detained but instead, because there was an outstanding warrant for her arrest, she had been afraid that she would be arrested if she appeared at the termination hearing. According to her attorney, she was "subsequently picked up a couple of days later and spent a period of time in jail." Palacios did not testify to these facts at the hearing. Nor did she indicate why her decision not to appear at the termination hearing because of an outstanding warrant would mandate a new trial. Reviewing the record, we hold that the trial court did not abuse its discretion in determining this appellate point to be frivolous.

With regard to Palacios's sufficiency issues, at the hearing on the motion for new trial and statement of appellate points, Palacios'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 Palacios's appellate points pertaining to sufficiency of the evidence were frivolous.

Finally, in his Anders brief, Palacios's appellate attorney raises the issue of ineffective assistance of counsel based on trial counsel's failure to file a timely motion for continuance once he learned that Palacios would not be present for the trial setting, but nonetheless concludes that the issue is frivolous. We agree.

An appellant must show that her attorney's performance was deficient in order to prevail on an ineffective assistance of counsel claim in an appeal from a termination of parental rights. In re M.S., 115 S.W.3d 534, 535 (Tex. 2003) (adopting Strickland standard employed in ineffective assistance of counsel claims in parental-rights termination proceedings). An attorney's performance is deficient if it falls below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Based on our review of the record, we conclude that there is no evidence that would support any arguable grounds of ineffective assistance of counsel to be advanced on appeal.

We, therefore, affirm the trial court's order terminating Palacios's parental rights.

Karen Angelini , Justice