in the Interest of R.C.R., Jr., a Child

Affirmed and Memorandum Opinion Filed April 14, 2009

Affirmed and Memorandum Opinion Filed April 14, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00904-CV

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IN THE INTEREST OF R.C.R., A CHILD

On Appeal from the County Court at Law

Washington County, Texas

Trial Court Cause No. CCL-5316

M E M O R A N D U M   O P I N I O N

After a bench trial, Becky Kemp=s parental rights to R.C.R., a child, were terminated, and in a post-judgment hearing, the trial court further found that Kemp=s appeal of the termination order was frivolous.  In four issues, Kemp appeals the trial court=s frivolousness finding under section 263.405(d) of the Texas Family Code and the constitutionality of this statutory provision.  After reviewing the briefs, statement of points on appeal, and the limited appellate record,^[1] we affirm the trial court=s frivolousness finding and its order terminating Kemp=s parental rights.   

RELEVANT PROCEDURAL HISTORY

After a bench trial, judgment was rendered terminating Kemp=s parental rights to R.C.R.  In the order of termination, the trial court concluded that terminating the parent-child relationship between Kemp and R.C.R. was in the child=s best interest. The trial court further found by clear and convincing evidence that Kemp: (1) Aknowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child@; (2) Aengaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child@; and (3) Aconstructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department . . . for not less than six months and . . . [a] the Department . . . made reasonable efforts to return the child to the [mother]; . . . [b] the [mother] has not regularly visited or maintained significant contact with the child; [and] . . . [c] the [mother] has demonstrated an inability to provide the child with a safe environment.@

Thereafter, Kemp filed a motion for new trial, her statement of points on appeal, and a notice of appeal.  The trial court held a hearing as required by section 263.405(d) and signed an order that (1) denied Kemp=s motion for new trial, (2) determined that Kemp was indigent for purposes of appeal, and (3) found that an appeal of the issues raised in the statement of points would be frivolous as provided by section 13.003(b) of the Civil Practice and Remedies Code.  On appeal, Kemp contends that the trial court abused its discretion by determining that her appeal was frivolous.  Kemp further contends that section 263.405 violates her constitutional rights to due process and equal protection.

STANDARD OF REVIEW

After a trial court has terminated parental rights, it is required to hold a hearing to determine whether: (1) a new trial should be granted; (2) a party=s claim of indigence, if any, should be sustained; and (3) the appeal is frivolous as provided by Section 13.003(b) of the  Civil Practice and Remedies Code.  Tex. Fam. Code ' 263.405(d).  If the trial court concludes that a party is indigent and an appeal is frivolous under subsections (2) and (3), an indigent appellant is not entitled to a no-cost appellate record and limited in his or her appeal.  See Tex. Civ. Prac. & Rem. Code ' 13.003(a)(2)(A); In re K.D., 202 S.W.3d 860, 865 (Tex. App.CFort Worth 2006, no pet.).    

We review a trial court=s determination that an appeal is frivolous under an abuse of discretion standard.  In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.CSan Antonio 2006, no pet.).  An appeal is frivolous when it lacks an arguable basis in law or in fact.  In re K.D., 202 S.W.3d at 865.  In determining whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a substantial question for appellate review.  Tex. Civ. Prac. & Rem. Code ' 13.003(b); Tex. Fam. Code ' 263.405. 

Our review of a trial court=s frivolous finding is initially limited to the frivolousness issue.  See Tex. Fam. Code ' 263.405(g); Lumpkin v. Dep=t of Family and Protective Servs., 260 S.W.3d 524, 526 (Tex. App.CHouston [1st Dist.] 2008, no pet.).  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.  See Lumpkin, 260 S.W.3d at 526 (explaining that frivolousness finding under section 263.405 is reviewed under an abuse of discretion standard and that appellate court must consider frivolousness issue before proceeding to the merits of the appeal); In re S.T., 239 S.W.3d 452, 454 (Tex. App.CWaco 2007, order).  Accordingly, we first address the trial court=s frivolousness finding and then, if appropriate, the merits of Kemp=s appellate issues.^[2]

FRIVOLOUSNESS FINDING

In accordance with the statute, Kemp filed a motion for new trial and her statement of points on appeal after her parental rights were terminated.  In her statement of points on appeal, Kemp challenged the legal and factual sufficiency of each of the three grounds for termination listed in the trial court=s order of termination.  After the section 263.405 hearing, the trial court denied the motion for new trial and determined that Kemp was indigent and her appeal, based on the issues articulated in her statement of points on appeal, would be frivolous.  We must determine whether Kemp presented sufficient arguments at the hearing demonstrating that her statement of points on appeal were substantial questions for appellate review. See Tex. Civ. Prac. & Rem. Code ' 13.003(b); In re H.D.H., 127 S.W.3d 921, 923 (Tex. App.CBeaumont 2004, no pet.).

At the hearing, the Department described the evidence relating to each of the points of appeal and presented an argument as to why each ground would be frivolous.  The Department referred to the following evidence which support each ground for termination:^[3]

Regarding endangerment, the Department referred to evidence that Kemp Awas homeless, was going from place to place, [and] was also visiting people that she did not know with the child in her care.@  The Department also pointed out that there had been testimony of neglectful supervision of R.C.R.  Kemp herself testified that she took R.C.R. on a bus to East Texas to stay in a hotel with someone she met on the Internet or on a telephone Achat line.@  Kemp also admitted that she was abusing alcohol during that time period.  Additionally, the Department directed the trial court to evidence that after R.C.R. was removed from her care, Kemp had lived with a succession of violent men, suggesting her inability to provide a stable home environment.

As to constructive abandonment, the Department asserted that the evidence showed Kemp=s discharge at one point from her counseling services because of non-attendance.  Furthermore, when the Department agreed with Kemp that Kemp would come to Brenham to see the child one week and then the Department would take the child to see Kemp the next, Kemp never made any of the scheduled visits to Brenham.  In fact, from July 2007 to April 2008, there were no visits between Kemp and R.C.R.

Kemp was represented at the hearing by counsel appointed to handle her appeal; her trial counsel did not appear at the hearing.  Kemp=s appellate counsel acknowledged not being present for the trial, but represented that she had spoken with trial counsel about the evidence.  Appellate counsel asserted that there had been some contact between Kemp and R.C.R. and described Kemp=s completion of various requirements for the return of R.C.R., including a psychological evaluation, counseling, and parenting classes.  Kemp had testified at trial about her current sobriety as well as transportation problems making it difficult for her to go to Brenham to visit R.C.R.  According to counsel, Kemp saw the child on every opportunity she could.  Counsel further highlighted that an unannounced home visit by the Department=s investigator found her five-month-old twins to be clean with no marks or bruises, and the apartment where she was living was stocked with baby food and formula.  Counsel also pointed out that Kemp had begun the process of getting a restraining order against one of the violent men who had lived with her.

More generally, Kemp=s counsel emphasized that while the Department=s burden at trial was an elevated one and that overcoming a claim of frivolousness Ais a pretty low standard.@  Counsel also argued that the ad litem appointed to represent R.C.R. had had a difficult time making a recommendation in the case. In response, emphasizing that the standards of review on appeal favor upholding a trial court=s findings of fact, the Department pointed out that the ad litem ultimately recommended termination of Kemp=s parental rights.

After reviewing the limited record before us, we conclude that the evidence described in the hearing does not present a substantial question for appellate review.^[4] See In re A.S., 239 S.W.3d 390, 392B93 (Tex. App.CBeaumont 2007, pet. dism=d).  Although affirming the trial court=s frivolousness finding in this case results in no review of the substantive merits of Kemp=s appeal, a constitutional challenge to the statute is not deemed frivolous and should be reviewed by an appellate court.  E.g., D.R. v. Tex. Dep=t of Family & Protective Servs., No. 08-07-00355-CV, 2008 WL 5256431, at *4 (Tex. App.CEl Paso Dec. 18, 2008, no pet.) (holding challenge to constitutionality of section 263.405 was not frivolous).  Accordingly, we must proceed to Kemp=s constitutional challenges to section 263.405.

CONSTITUTIONAL ISSUES

In her first, second, and fourth appellate issues, Kemp contends that the application of section 263.405, as applied to her, violates her constitutional rights to due process and equal protection.  Kemp, however, did not raise these Aas applied@ constitutional arguments in the trial court.  In In re L.M.I., the Supreme Court of Texas applied the preservation requirements of Texas Rule of Appellate Procedure 33.1 to a constitutional complaint in the parental rights termination context.  119 S.W.3d 707, 710-11 (Tex. 2003); see also Tex. R. App. P. 33.1 (providing that as a prerequisite for appeal, a timely and sufficiently explicit request, objection, or motion must be made in the trial court).  In In re A.J., this court declined to address the merits of an appellant=s claim that section 263.405 unconstitutionally denied his right to appeal because he failed to raise the argument below and failed to properly brief it on appeal.  No. 08-00471-CV, 2009 WL 87602, at *1 (Tex. App.CHouston [14th Dist.] Jan. 15, 2009, no pet. h.) (per curiam) (mem. op.).  The Fort Worth court held similarly in In re D.W., 249 S.W.3d 625, 631 (Tex. App.CFort Worth 2008) (en banc), pet. denied, 260 S.W.3d 462 (Tex. 2008).  Based on these authorities, we hold that Kemp failed to preserve her constitutional challenges.

Because Kemp failed to preserve her constitutional complaints, and the evidence described in the hearing does not present a substantial question for appellate review, we must summarily overrule all four of appellant=s issues.  We affirm the trial court=s section 263.405 order and its order of termination.

/s/      Adele Hedges

Chief Justice

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

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^[1]  See Tex. Fam. Code ' 263.405(g).

^[2] After reversing a frivolousness finding, appellate courts have generally ordered the parties to file briefs on the merits.  See In re M.N.V., 216 S.W.3d 833, 835 (Tex. App.CSan Antonio 2006, no pet.), disp. on merits, 2007 WL 56605 (Tex. App.CSan Antonio Jan. 10, 2007, no pet.) (mem. op.); In re P.L.S., No. 02-04-00402-CV, 2006 WL 2309594, at *1 (Tex. App.CFort Worth Aug. 10, 2006, no pet.) (mem. op.). However, if an appellate court affirms a trial court=s frivolousness finding, the appellate court has determined that each of the issues presented in the statement of points has no arguable basis in law or in fact, i.e., the evidence is legally and factually sufficient to support the trial court=s ruling on those appellate points, and, therefore, warrant no further review.  See In re S.T., 263 S.W.3d at 405B05.

^[3]  The Department supported its representation of the facts supporting termination through argument of counsel and live testimony from the caseworker assigned to the case.

^[4]  In In re M.R.J.M., the Fort Worth court addressed an argument that section 263.405 violated the separation of powers clause of the Texas Constitution, contained in Article II, section 1, because it prevented courts of appeals from reviewing the trial record in assessing factual sufficiency challenges (factual sufficiency review being a court of appeals power granted in Article V, section 6a of the Texas Constitution).  193 S.W.3d 670 (Tex. App.CFort Worth 2006, order).  The Fort Worth court determined that section 263.405 did not violate the separation of powers clause because it allows, specifically in subsection (g), for an appellate court to issue Aappropriate orders@ when reviewing a trial court=s frivolousness finding.  Id. at 675-76.  The court held:

Because the Aappropriate orders@ language of section 263.405(g) recognizes our authority to order the preparation of a record of all of the evidence in a termination case when necessary to review a trial court=s determination that an appeal raising a factual sufficiency complaint is frivolous, the statute does not interfere with our factual sufficiency review power.  We, therefore, hold that the statute is not unconstitutional under the separation of powers clause of the Texas Constitution.

Id. at 676.  The court then ordered the preparation of a complete trial record for sufficiency review purposes.  Id.  We find the Fort Worth court=s resolution of the issue troubling.  If a parent appealing from a termination of his or her rights can get a free record merely by challenging the sufficiency of the evidence, section 263.405's frivolous appeal limitations will be easily circumvented.  We decline to read a generalized sentence about Aappropriate orders@ to control the specific process set forth in the section.  Cf. Tex. Gov=t Code ' 311.021 (providing that courts should not interpret one portion of a statute so as to render another portion of the statute meaningless).

We disagree with the Fort Worth court that the M.R.J.M. result Agives effect to the Legislature=s intent as evidenced by the plain language of section 253.405.@  193 S.W.3d at 675.  In fact, the holding seems to encourage just the opposite:  the Legislature=s intent to Aeliminate  frivolous appeals in termination cases, reduce the costs associated with such appeals, and dispose of the appeals >with the least possible delay,=@ id., most surely would be thwarted, not promoted.  We believe that any constitutional issue regarding our authority to conclusively decide factual issues on appeal should be addressed squarely, not sidestepped by liberal statutory interpretation, particularly when such reading abrogates legislative intent.