NO. 07-10-0075-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C SEPTEMBER 29, 2010

__________________ ____________ IN THE INTEREST OF Q.W.J. AND S.C., CHILDREN

__________________ _______________ FROM COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY; NO. 6538-L2; HONORABLE RONNIE WALKER, JUDGE 1

__________________ _____________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION
The interests of parents in their re lationship with their children is sufficiently fundamental to come within th e finite class of liberty interests protected by the Fourteenth Amendment. 2

1 Hon. Abe Lopez, (Ret.), sitting by assignment. Tex. Gov = t Code Ann. ' 75.002(a)(3) (Vernon 2005).

2 Santosky v. Kramer , 455 U.S. 745, 774, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (Rehnquist, J. dissenting).2 A.T. 3 appeals the trial court's denial of a free r eporter's record after the trial court found that an appeal from the trial court's order terminat ing his parental rights to his child, S.C., would be frivolous. Likewise, C. J. also appeals the tria l court's denial of a free reporter's record and additionally asserts abus e of discretion by t he trial court in its findings concerning the grounds for terminati on of her parental rights to her children, Q.W.J. 4 and S.C. We reve rse and remand.
Factual Background
After hearing testimony from numerous witnesses from January 18, 2010 through January 21, 2010, the trial cour t signed an order terminating t he parental rights of A.T. to his minor child and C.J. to her minor children on February 22, 2010. Both A.T. and C.J. were represented at trial by respec tive appointed counsel. Both counsel were permitted to withdraw imm ediately following trial. 5 A.T., proceeding pro se, filed a timely Notice of Appeal and Affidavit of Indigence. 6 C.J., represented by newly appointed counsel, timely filed a Notice of Appeal and Affidavit of Indigence. 7 Although the incomplete appellate record does not reflec t when, and if, A.T. requested appointment

3 To protect the parents' and children's privacy, we refer to them by their initials. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008). See also Tex. R. App. P. 9.8(b).

4 The order also terminated the parental rights of R.C. H. to Q.W.J.; however, R.C.H. did not appear for trial and is not a party to this appeal.

5 The clerk's record contains the withdrawal order of C.J.'s appointed counse l but does not contain an order permitting A.T.'s counsel to withdraw.

6 The clerk's record in this cause does not reflect a Statement of Points filed by A.T.; however, A.T. did timely file a Statement of Points in trial cour t cause number 6537-L2, appellate cause number 07-10- 0087-CV. We cannot say with assurance that the cl erk's record in this cause contains all documents filed. Due to the proceedings in cause number 6537-L2 and cause number 6538-L2 being consolidated below for trial, we assume for the sake of argument that A.T.'s Statement of Points applies in both appeals.

7 C.J.'s Statement of Points, combined with her motion fo r new trial, is not contained in the clerk's record. However, a file-stamped copy is included in the appendix to her brief.3 of counsel for appellate purposes, the tria l court signed an order appointing new counsel for A.T. on March 18, 2010, twenty-f our days after signing the termination order and after most critical deadlines for this type of accelerated appeal had expired. See generally Tex. Fam. Code Ann. § 263.405(a) and (b) (Vernon 2008).
Pursuant to section 263.405(d), the tr ial court held a mandatory hearing on March 22, 2010. A.T.'s newly appointed c ounsel was unavailabl e, and the hearing proceeded with C.J.'s newly appointed counsel speaking fo r both parents with A.T.'s consent. The State urged the trial court to deny the motion for new trial and find the parents' appeals frivolous. Counsel for C.J. requested the trial court provide a free transcript in the event the motion for new trial was not granted. No evidence was introduced at the hearing and th e trial court announced it was denying the motion for new trial as to both parents and ruled any ap peal frivolous. The trial court added:
[a]nd my finding on the frivolous iss ue is based on the evidence that the Court heard. This was a non-jury trial; it was a trial, bench. There was a lot of evidence. I heard a lot of witnesses, and so based on what I heard, the Court is of the opinion that su ch an appeal would be frivolous . . . .

The trial court signed an order memori alizing its ruling. The statutory consequence of a "frivolous" finding is that an indigent parent is not entitled to a free appellate record of the underly ing proceedings. Tex. Civ. Prac. and Rem. Code Ann. § 13.003(a) (Vernon 2002). If a tr ial court makes a frivolous finding, the aggrieved parent can appeal, but the appeal is initially limited to the frivolous issue. Lumpkin v. Dep ' t of Family & Protective Servs. , 260 S.W.3d 524, 526 (Tex.App. --Houston [1st Dist.] 2008, no pet.). That is, before we can reach the s ubstantive merits of an appeal in which a4 frivolous finding has been made, we must firs t determine whether the trial court properly found the appeal to be frivolous. Id.
Appellants' notices of appeal and statement of points were fil ed before the trial court made its frivolous dete rmination, and Appellants have not specifically challenged the frivolous determination by way of a statem ent of points. Nevertheless, we construe A.T.'s and C.J.'s appeals to encompass a cha llenge to the frivolous finding because both parents did file separat e appellate briefs contending the trial court committed reversible error in denying them a free reporter's record. Id.
Analysis
We begin our analysis with the axiom that the natural right existing between parents and their children is of constitutional dimension. See Santosky v. Kramer , 455 U.S. 745, 758-59 10 2 S.Ct. 1388, 71 L.Ed .2d 599 (1982). See also Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). C onsequently, termination proceedings are strictly scrutinized. In the Interest of G.M. , 596 S.W.2d 846 (Tex. 1980).

Section 13.003 of the Texas Civil Prac tice and Remedies Co de provides for a free reporter's record if the trial court finds (1) the appeal is not frivolous and (2) the record is needed to decide issues presented on appeal. Tex. Civ. Prac. and Rem. Code Ann. § 13.003(a) (Vernon 2002). In deciding whether an appeal is frivolous, a judge may consider whether the appe llant has presented a substa ntial question for appellate review. Id. at (b). An appeal is friv olous when it lacks an arguable basis either in law or in fact. See In re K.D. , 202 S.W.3d 860, 866 (Tex.App.--Fort Worth 2006, no pet.)5 (citing De La Vega v. Taco Cabana , Inc. , 974 S.W.2d 152, 154 (T ex.App.--San Antonio 1998, no pet.)).
We review a trial court's frivolous finding under an abuse of discretion standard. De La Vega , 974 S.W.2d at 154. A trial court abuses its discretion if it acted without reference to any guiding rules and principles or if its decision was arbitrary or unreasonable. McDaniel v. Yarbrough , 898 S.W.2d 251, 253 (Tex. 1995) (citing Downer v. Aquama rine Operators , Inc. , 701 S.W.2d 238, 242- 43 (Tex. 1985)).
Here, the trial court terminated the rights of both parents on the following grounds:

• knowingly placed or knowingly a llowed the children to remain in conditions or surrounding which endanger ed their physical or emotional well-being;

• engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered th e physical or emotional wellbeing of the children;

• failed to support the child in accor dance with the parents' abilities during a period of one year en ding within six months of the date of the filing of the petition; and

• failed to comply with the provisions of a court order that specifically established the actions necessary for the parents to obtain the return of the children who had 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 parents under Chapter 262 for abuse or neglect.

See Tex. Family Code Ann. § 16.001(1)(D), (E), (F), and (O) (Vernon Supp. 2010).
Neither court-appointed appel late counsel served as trial counsel. Appellants' trial counsel were both permitted to withdraw during a "critical stage" of the termination6 proceeding. See In the Interest of J.O.A. , 262 S.W.3d 7, 18 (Tex.App.--Amarillo 2008), modified , 283 S.W.3d 336 (Tex. 2009). The procedural posture of this case forced A.T. to file his statement of poi nts without the benefit of counsel and C. J.'s newly appointed appellate counsel to face the onerous task of formulating a statement of points without the benefit of either being present at trial or a r eporter's record to review. 8 In this respect, the operation of sect ion 263.405 is illogically circular because it prevents an indigent parent from obtaining a record until after t he trial court makes a non-frivolous determination as to points that require a record to formulate and present. See In re K.H.O.T.T. , 2010 Tex.App. LEXI S 6507, at *3 (Tex.App.--Tyler Aug. 11, 2010, no pet. h.).
The Legislature affords parents in te rmination cases the right of appeal. See Tex. Fam. Code Ann. § 109.002 (Vernon 2008). Once appellate review is afforded, it cannot be unduly restricted. In the Interest of B.G. , __ S.W.3d __, 53 Tex. Sup. J. 947, No. 07-0960, 2010 Tex. LEXIS 477, at *17 (Tex. July 2, 2010). The United States Supreme Court "has never held that the States are requi red to establish avenues of appellate review, but it is now fundamental t hat, once established, these avenues must be kept free of unreasoned distinctions t hat can only impede open and equal access to the courts." M.L.B. v. S.LJ., 519 U.S. 102, 111, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996).
In his Statement of Points, A.T. challe nges the sufficiency of the evidence to support all four grounds relied on by the tria l court in its determination to terminate the parent-child relationship between him and his child. He also challenges the sufficiency of the evidence to support the tr ial court's best interest determination, alleges ineffective

8 C.J.'s appellate counsel candidly admits that she wa s forced to merely speculate as to what appellate issues might be raised in filing C.J.'s statement of points.7 assistance of counsel, and finally, challenges the constitutionality of sections 109.002 and 263.405 of the Texas Family Code.
By her Statement of Points , C.J. also challenges the evidence to support the four grounds relied on by the trial court in its deci sion to terminate her parental rights to her children as well as the best interest dete rmination. She contends the Department failed to meet the clear and convin cing standard of review utilized in termination cases. She echoes A.T.'s complaints on ineffective assi stance of counsel and also challenges the constitutionality of section 109.002 and 263.405.

We now consider whether A.T. and C.J. presented a substantial question for appellate review, which is a factor that may be considered in assessing whether the appeal is frivolous. Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) . In a contested termination proceeding, sufficiency of the evi dence, which both parents raise in their Statements of Points, is an arguable issue on appeal. Additionally, a challenge to the constitutionality of section 263.405, which bo th parents included in their Statements of Points, raises a substantial question which should be reviewed on the merits by an appellate court. See D.R. v. Tex. Dep ' t of Family & Protective Servs. , 281 S.W.3d 598, 602 (Tex.App.--El Paso 2008, no pet.).
Additionally, in making a frivolous det ermination under secti on 263.405(d)(3), a trial court is not being asked to decide the meri ts of a party's appeal. That task is for the province of an appellate court. Instead, the trial court's role is to determine whether there is an arguable basis for an appeal, i.e., whether the i ssues raised in a statement of points are frivolous. See In the Interest of D.W. , 249 S.W.3d 625, 644 (Tex.App.--8 Fort Worth 2008), pet. denied , 260 S.W.3d 462 (Tex. 2008). 9 When the Legislature blocks the exercise of our appell ate judicial function, it in terferes with our substantive appellate powers and violates the Separation of Powers Clause of Article II, § 1 of the Texas Constitution. See 249 S.W.3d at 640. See also In the Interest of M.R.J.M. , 280 S.W.3d 494, 498 and n.3 (Tex.App. --Fort Worth 2009, no pet.).
We conclude arguable grounds for an appeal exist. Ther efore, the trial court abused its discretion in finding the appeal fr ivolous and denying A.T. and C.J. a free reporter's record. Consequently, we reverse t he trial court's order finding the parties' notices of appeals frivolous and remand the cause to the trial court to order the court reporter to complete and file the reporter's record on or before November 29, 2010. Appellants shall each file a merits brief within 20 days after the reporter's record is filed. Appellee's brief must be filed within 20 day s after Appellants' briefs are filed.

It is so ordered.

Per Curiam

9 In denying the petition for review, the Court noted it neither approved nor disapp roved of the Fort Worth Court's holding regarding the constitutionality of section 263.405.