### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00436- CV

F rank R., Appellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NO. C-0 8-0 040- CP S, H ONO RAB LE JAY K . WEATH ERB Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ap p el l an t Fr ank R. appea ls a final order terminating his pare ntal rig hts to h i s biologica l child, D.D.G. After a bench trial, the trial cour t rende red a final order terminating 1 appellant’ s pare ntal rig hts, f in d in g th a t statutory g rounds for termination exis ted and that termination of appellant’ s rig hts was in the best interest of the child. See Tex. Fam Code. Ann. § 161.001 (West 2 Supp. 2009). After a hear ing p u rs u ant to Texas Family Code section 263.405(d), the trial court denied appellant’ s motion for new trial and enter ed an order finding his appea l to be frivolous. See id

. § 263.405(d) (West 2008). This is an appea l from the trial cour t ’s order finding his appea l frivolous. We aff

irm the trial cour

t’s order

.
Pursuant to rule 9.8 of the rules of appellate proce dure, we use an alias to ref er to the minor 1 and the pa

rent. See Tex. R. App. P . 9.8. The court found by clea

r and convincing evidenc e that the mother executed an irrevoc able 2 aff idavit of relinquishment of her pare ntal rig hts o f t h e ch i l d. See Tex. Fam. Code Ann. § 161.001(1)( K) (West Supp. 2009).Background Appell ant is the fathe r of D.D.G., who was born on Dec ember 25, 2007. After

remova l of the child from the custody of the mother on Dec ember 31, 2007 d u e, i n t er alia, to alleg ations of d rug usag e and the occur renc e and likelihood of occur renc e of family violence, the Depa rtment soug ht to terminate the pare ntal rig hts of the child’s pare nts. The child’s natura l mother executed an unrevoke d and irrevoc able aff idavit of relinquishment and her pare ntal ri gh t s were terminated pur suant to Texas Family Code section 161.001(1) (K). See id . § 161.001(1)( K). As to appellan t , the Depa rtment soug ht and the trial court found by clea r and convincing evidenc e three statutory g rounds for terminating appellant’ s pare ntal rig hts and that the termination was in the child’s best interest. The court found by clea r and convincing evidenc e that (i) appellant constructively abandone d the child who had been in the p erma nent or temporar

y manag ing conser

vatorship of the Depa

rtment for not less than six months, the Depa rtment had made

rea so n ab l e eff

orts to return the child to appellant, and appellant had not maintained signific ant
contac t with the child and had demonstrated an inability to provide the child with a safe environment pursuant to section 161.001(1)( N); (ii) appellant had failed to comply with the provisions of a court order setting forth the actions require d for appellant to obtain the return of the child pursuant to section 161.001(1)( O); and (iii) appellant knowing ly eng ag ed in criminal conduct that resulted in his conviction and confine ment and inabili ty to car e for the child for not less than two y ear s pursuant to section 161.001(1)( Q). See id . § 161.001(1)( N), (O ), (Q)

.

Appellant filed a motion for new trial and statement of points on appea l. On Aug ust 12, 2009, the court enter ed an order deny in g t h e m otion for new trial and finding that the

2ap p eal was frivolous. See id

. § 263.405(d). There afte r, the court enter ed an order fi n d i n g t h at

appellant was indige nt and could continue the appe al as an indige nt with the same counsel. This
appea l followed.
Scope and Stan dard of Revie w

Once a trial court deter

mines that an appea l is frivolous, the scope of appellate revie w is statutorily limit ed to a review of the t rial court’s frivolousness finding. Id

. § 2 6 3

. 4 0 5 (g) (West 2008). I n deter

mining whether an appea l is frivolous, “a judge may consider whether the appellant has prese nted a substantial question for appellate re v i ew . ” Tex. Civ. Prac. & Rem. Code Ann. § 13.0 0 3 (b ) (W est 2002); Tex. Fa m. Code Ann. § 263.405(d)( 3) (incorporating section 13.003(b) by ref ere nce) ; see In re K.D. , 202 S.W .3d 8 6 0 , 8 6 6 (T ex. App.—For t Worth 2006, no pet.). A
proce eding is frivol o u s wh en it lacks an arg uable basis either in law or in fac t. Id. (citing De La Vega v. Taco Ca b a n a , Inc. , 974 S.W .2d 152, 154 (Tex. App.—San Antonio 1998, no pet.)). We revie w a tria l court’s finding of fr ivolousness under the a buse of discr etion standard. Id . The test for abuse of discretion is whether the trial court acte d without ref ere nce t o an y g uiding rules and principles, or whether it acte d arbitra rily and unrea sonably under all the circ umstances of a particula r

case . Carpenter v. Cimarron Hydroc arbons Corp. , 98 S.W .3d 682, 687 (Tex. 2002); see In re H.R. , 87 S.W .3d 691, 702 (Tex. App.—San Antonio 2002, no pet.).

To terminate a pare nt-child rela t ionship, a trial court must find by clea r and convincing evidenc e that (1) termination is in the best interest of the child, and (2) the pare nt committed one or more of the acts specific ally set forth in family code section 161.001(1). Tex. Fam. Code Ann. § 161.001. Clear and convincing evidenc e is define d as the “mea sure or deg ree of
3proof that will produce in the m ind of t he trier of fact a firm belief or convic tion as t o the t ruth of

the alleg ations soug ht to be established.” Id

. § 101.007 (West 2008). Only one g round under section 161.001(1) is nece ssary to support a judgme nt in a pare ntal rig hts termination case . Id

. § 161.001(1); In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003).

Frivolous ness Fin ding

Although appellant included in hi s statement of points on appea l challeng es to the leg al and fac tual sufficie ncy of the statutory g rounds for termination and to the court’s finding that termination was in the child’s best interest, he does not challeng e these g rounds on appea l. His sole challeng e on appea l is limit ed to the court’s finding s that all rea sonable eff orts wer e made to preve nt

or eliminate the need for remova l and that the Depa rtment had proper ly attempted to place the child with a family member. Appellant urg es that the trial court abused its discretion in finding his appea l frivolous beca

use he prese nted his mother as a proper rela tive for place ment. Wi t h o u t ci t i n g the

rec ord, appellant conten d s t hat the Depa rtment improperly reje cted his mother as a possible place ment based solely upon a DWI conviction history and that this reje ction supports that his appea l was not fr ivolous.

Section 262.201(e) of the F amily Code provides:

The court shal l p l ac e a child remove d from the child’s custodial pare nt with the child’s noncustodial pare nt or with a re l at i v e of the child if place ment with the noncustodial pare nt is inappropria te, unless place ment with the noncustodial pare nt or a r elative is not in the best intere st of the child.

4Tex. Fam. Code Ann. § 262.201(e) (West Supp. 2009); see also id. 262.114 (West S u p p . 2009)

(eva luation of identified rela ti v es and place ment with rela tives). I n enabling the State to g ive pref ere nce to a rela tive of the child if place ment with the noncustodial p ar en t i s inappropria te, the trial court has broad discretion in d et er m i n ing the best interest of the child. In re S.P. , 168 S.W .3d 197, 211 (Tex. App.—Dallas 2005, no pet.); see also Tex. Fam. Code Ann. § 153.002 (West 2008) (“The best interest of the child shall alway s be the primar y considera

tion of the court in deter mining the issues of conser vatorship and possession of and acc ess to t h e child.”); In re J.F.C. , 96 S.W .3d 256, 30 4 (Tex. 2002) (family code’ s statutory scheme for protecting children’ s welfa re f ocuses on the c hild’s best interest). Although a trial court should evalua te the re asonable eff orts of the Depa

rtment to identify rela tives who could provide the child with a safe environment if the child is not returne d to

a pare nt, the Depa

rtment’s place ment of the child with a non-re lative does not prec lude termination:

The deter mination of wher e a child will be place d is a fac tor in evalua ting the child’s best interest, but it is not a b ar t o t ermination that place ment plans are not final or that place ment will be with non-rela tives.

In re C.C. , No. 2-04-206- CV, 2 0 0 5 Tex. App. L EXI S 4096, at *20 (Tex. App.—For t Worth May 26, 2005, no pet.) (mem. op.). Appellant provides no authority , and we have found none, that
sug g ests that there is either a statutory or a common-law duty imposed on the Depa rtment to make

a place ment with a rela tive befor e a party ’s pare ntal rig hts may be terminated. See id .; see also
In re K.W

. , No. 2-09-041, 2010 Tex. Ap p . L E XI S 291, at *28-29 (Tex. App.—For t Worth
J anuar y 14, 2010, no pet.) (me m. op.).

5Fur ther, the rec ord befor e us shows that the trial court revie wed and the Depa rtment made rea sonable ef

fo rt s to place the child with a rela tive. I n an Orde r Establishing Parent-Child Relationship enter ed on September 29, 2008, appellant was adjudicate d as D.D.G .’s biologica l fathe r. There afte r, in a Permane ncy Plan and Permane ncy Prog ress Report filed by the Depa rtment on April 13, 2009, the De partment c asew orker advised the c ourt:
[Appellant] has provided his mother as a place ment option. Worker has conducte d the initial cr iminal ba ckg round chec k on [appellant’s mother] and her common law husband

. . . . Ba sed off the results of the criminal history [appellant’s mother] is not a viable pla ceme nt option which the Depa rtment ca n pursue a

t this t ime.

After the perma

nency h ea ri ng in May 2009, the trial court made the following finding s:

2.2. The Court has revie wed service s plans, perma nency repor

ts and other information s ubmitted to the C ourt to deter mine t h e s afe ty of t he child, the con t inuing nece ssity and appropr iateness of the place ment of the child, the extent of compliance with the ca s e p l an, the extent of prog ress which has been made toward allev i ati ng or mitigating the cause s nece ssitating place ment in f

oster car e, and to pr oject a likely date by which the child may be returne d to and safe ly maintained in the home or place d for adoption or in a perma nent manag ing conser

vatorship, as applicable

. The Court finds that the Depa rtment has made rea sonable eff orts, as identified in its service plans and/or Permane ncy Prog ress Reports, to finalize the perma nency plan that is in effe ct for the child. 2.4. The Court has evalua ted the Depa rtment’s eff

orts to ident ify rela tives who could provide the child with a safe environment if the child is not returne d to a pare nt or another person or entity entitled to service under Chapt er 102, Tex as Fa m i ly Code and to obtain the assistance of eac h pare nt to provide information nece ssary to locate an absent pare nt, alleg ed fathe r, or rela tive of the child. The Court h as further revie wed the eff orts of eac h pare nt or rela tive befor e the Court in providing information nece ssary to locate another

6ab s ent pare nt or rela tive of the child pursuant to § 263.306(a) (3), Texas Family Code. 3.1. The Court finds that neither the child’s pare nts nor any other person or entity entitled to service under Chapter 102, Texas Family Code is willing and able to provide the child, [D.D.G.], with a safe environment, and there fore return of the child to a pare nt or other person or entity is not in t h e ch i ld’s best interest. 3.1.1. The Court finds that the child continues to need substitut e ca re and the child’s cur

rent plac ement is appropr iate for the child’s nee ds.

After a bench trial held on J une 3 and J une 18, 2009, the trial court issued a letter ruling rec iting that it had revie wed the evidenc e, arg ument of counsel, and the pleading s on file, and that the court had made finding s by clea

r and convincing evidenc e that appellant’ s rig hts wer e terminated pursuant to the three sections of the family code and in the child’s best interest. The final order also contained these finding s.

Appellant does not prese nt a substantial question for appellate revie w. See Tex. Fam. Code Ann. § 263.405(d); Tex. Civ. Prac. & Rem. Code. Ann. § 13.003(b). Appe l l an t d o es not challeng e the fac tual or leg al sufficie ncy of the g rounds for termination or that the termination is in the child’s best interest—all of which wer e included in his statement of points on appea l that the trial
court conclude d wer e frivolous—but challenges only that the Depa rtment place ment should have been with a rela tive. He f urther f ails to cite to or adduc e any evidenc e that supports his claim that the place ment should have been with a rela tive. Ba sed upon our revie w of the rec ord, we conclude that the trial court did not abuse its discretion in deter mining that Rodrigue z’s appea l was frivolous. See I n re K.D. , 202 S.W .3d at 866.

We affir m the trial court’ s order

.

7__________________________________________ J an P. Patterson, J ustice
Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: Apr il 13, 2010

8