in the Interest of K.L.G. AKA C.G., a Child ( 2009 )

Affirmed and Memorandum Opinion filed October 15, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00403-CV

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IN THE INTEREST OF K.L.G. aka C.G., a child

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 2007-10057J

M E M O R A N D U M   O P I N I O N

Calvin Gould, Jr., appeals a final decree terminating his parental rights to K.L.G. In three issues, he asserts that the evidence is legally and factually insufficient to support termination of his parental rights. We affirm the trial court’s judgment.

In late 2007, the Department of Family & Protective Services obtained custody of K.L.G. when she was almost one year old, after a complaint of neglectful supervision of K.L.G. and her three brothers. The children were found unsupervised in the mother’s home. The mother has a history of drug abuse. K.L.G. was originally removed from her mother’s care and placed with a maternal great aunt, Margaret Vasquez. After Vasquez lost her home, she and the children moved in with K.L.G.’s mother. Vasquez left the children in the care of their mother despite knowledge of the mother’s drug abuse, which continued after Vasquez moved in with her. Because Vasquez was homeless, had medical issues, and made inappropriate decisions, K.L.G. and her brothers were placed with CPS. This termination action followed.[1]

The evidence at trial showed that during the three-month period appellant had contact with K.L.G. after her birth, he supported his family by selling drugs. He had been convicted of delivery of cocaine in 2000 and robbery in 2004, and was on parole when K.L.G. was born. Three months later, appellant violated the conditions of his parole by selling crack cocaine and was returned to jail. At the time of trial, appellant was serving three concurrent 2007 sentences of eighteen years for aggravated assault with a deadly weapon, fifteen years for unlawful possession of a firearm, and two years for possession of cocaine.[2] At the conclusion of the non-jury trial, the court terminated appellant’s parental rights to K.L.G.

Appellant timely filed a motion for new trial, notice of appeal, affidavit of indigency, and statement of appellate points. See Tex. Fam. Code Ann. § 263.405 (Vernon 2008). At the hearing on appellant’s motion for new trial, the trial court determined that appellant is indigent and that this appeal of the termination decree is frivolous as provided by Section 13.003(b) of the Civil Practice and Remedies Code. See Tex. Fam. Code Ann. § 263.405(d)(3) (Vernon 2008).

Before we can reach the substantive merits of an appeal in which a frivolousness finding has been made, we must first determine whether the trial court properly found the appeal to be frivolous. Tex. Fam. Code Ann. § 263.405(g) (Vernon 2008); Lumpkin v. Dep’t of Fam. and Prot. Servs., 260 S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.). We review a trial court’s determination that an appeal would be frivolous for an abuse of discretion. In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.—San Antonio 2006, no pet.). In making a determination that an appeal is frivolous, the trial court may consider whether appellant has presented “a substantial question for appellate review.” See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002); In re R.C.R., No. 14-08- 00904-CV, 2009 WL 997514, at *2 (Tex. App.—Houston [14th Dist.] Apr. 14, 2009, no pet.)(mem. op.). An appeal is frivolous when it lacks an arguable basis in law or in fact. In re K.D., 202 S.W.3d 860, 865 (Tex. App.—Fort Worth 2006, no pet.).

Parental rights can be terminated only upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and (2) termination is in the best interest of the child. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2008).

The trial court found by clear and convincing evidence that appellant had committed three of the grounds for termination listed in section 161.001(1) of the Texas Family Code. Specifically, the court found appellant violated subsections D, E and Q of section 161.001(1).[3]  The trial court also found that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2) (Vernon 2008).

The Texas Family Code requires that a statement of points on which a party intends to appeal be presented to the trial court within fifteen days after the signing of a final order terminating parental rights. Tex. Fam. Code Ann. § 263.405(b) (Vernon 2008). The Code further provides that an appellate court is to consider only those issues presented to the trial court in a timely filed statement of points. Id. § 263.405(i); Pool v. Texas Dep’t of Fam. & Prot. Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In his statement of points, appellant challenged only the findings under subsections D and E of the Section 161.001. He did not challenge the finding that termination is in the best interest of the child or the finding under subsection Q, the parent’s criminal conviction and imprisonment for more than two years.

A trial court’s findings must be challenged on appeal, or the findings are binding on the appellate court. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997). Therefore, the unchallenged findings that termination is supported by section 161.001(1)(Q) and termination is in K.L.G.’s best interest are binding, and the judgment of termination may be supported without considering the other statutory predicate grounds. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that only one finding under section 161.001(1) is necessary to support a termination judgment when there is also a finding that termination is in the child’s best interest).

The trial court properly found that this appeal is frivolous for two reasons. First, by statute, we may consider only those issues presented to the trial court in a timely filed statement of points. Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008). Appellant did not raise a challenge to the predicate ground in subsection Q or to the best-interest finding.[4] Second, because they were unchallenged, findings supporting termination of appellant’s parental rights to K.L.G. are binding, and no review of the other predicate grounds or the best-interest finding is necessary. See In re A.V., 113 S.W.3d at 362. Thus, this appeal presents no substantial question for appellate review. Because this appeal is frivolous, we do not reach the issues on the merits. See also Lumpkin, 260 S.W.3d at 526 (holding that where trial court properly found appeal frivolous, no further review is warranted).

In an effort to ensure a meaningful appeal, some courts consider all the evidence presented at trial in reviewing the trial court’s determination of frivolousness. See In re B.Y., No. 02-05-00332-CV, 2006 WL 1716265, at *4 (Tex. App.—Fort Worth June 22, 2006, no pet.)(mem.op.) (court reviewed evidence admitted at trial, agreed that appeal would not present substantial question for review, overruled challenge to finding of frivolousness, and affirmed judgment). Although we do not believe it is required under the facts presented here, we have reviewed the complete record. In addition to the evidence already discussed, appellant acknowledged his long criminal history. Certified copies of appellant’s convictions were admitted into evidence. Appellant conceded he was unable to care for K.L.G., he had no family member who could assist in caring for her while he was in prison, and she was currently in a good home. The Department caseworker testified favorably about K.L.G.’s placement with a prospective adoptive family. After review of the complete record from trial, we conclude the trial court did not abuse its discretion in determining this appeal would be frivolous.

Finding no abuse of discretion, we affirm the trial court’s frivolousness finding and the final decree terminating appellant’s parental rights.

                                                                        PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

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[1] The mother’s parental rights were also terminated, but she did not appeal. Separate cases were filed concerning K.L.G.’s brothers, and they are not at issue in this appeal.

[2] Appellant did not appeal the cocaine possession conviction. His convictions for aggravated assault and unlawful possession of a firearm were affirmed. See Gould v. State, Nos. 01-07-00985-CR & 01-07-00959-CR, 2009 WL 103327 (Tex. App.—Houston [1st Dist.] Jan. 15, 2009, pet ref’d) (not designated for publication).

[3]  Family Code Section 161.001 provides in relevant part that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that termination is in the best interest of the child and the parent has: . . .

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; . . .

(Q) knowingly engaged in criminal conduct that has resulted in the parent’s:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition; . . . .

Tex. Fam. Code Ann. § 161.001(1) (Vernon 2008).

[4] Appellant discusses the best interest of the child in his brief, but our review is precluded because there was no best-interest challenge in the statement of appellate points. See Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008).