in the Interest of M.L.C., a Child

Affirmed and Memorandum Opinion filed December 16, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-01006-CV

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IN THE INTEREST OF M.L.C., a child

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 2009-02754J

MEMORANDUM  OPINION

            Appellant, Amy Kristine C., brings this accelerated appeal from a judgment terminating her parental rights to M.L.C.  Amy filed a timely motion for new trial and statement of appellate points, as required by statute.  See Tex. Fam. Code § 263.405(b).  The trial court denied the motion for new trial, found that Amy is not indigent, and that her appeal is frivolous.  See Tex. Fam. Code § 263.405(d).  Amy has raised a single issue challenging the trial court’s finding that her appeal is frivolous.  See Tex. Fam. Code § 263.405(g).  We affirm.

TERMINATION PROCEEDINGS

            To terminate parental rights under Chapter 161 of the Family Code, a petitioner must establish by clear and convincing evidence that (1) the parent has committed one or more of the listed statutory acts or omissions, and (2) termination is in the best interest of the child.  Tex. Fam. Code § 161.001(1), (2); In re J.L., 163 S.W.3d 79, 85 (Tex. 2005).  Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination.  In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).  Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.  Tex. Fam. Code § 101.007.  

The Department of Family and Protective Services (DPFS) sought termination of Amy’s parental rights under Family Code sections 161.001(1)(D), 161.001(1)(E), and 161.003.[1]  Section 161.001(1)(D) permits termination on a finding by clear and convincing evidence that the parent has “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.”  Tex. Fam. Code § 161.001(1)(D).  Under section 161.001(1)(E) of the family code, a parent’s rights may be terminated if it is established by clear and convincing evidence that the parent has “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.”  Tex. Fam. Code § 161.001(1)(E).  The Department also alleged that Amy has a mental illness or deficiency rendering her unable to provide for the needs of the child.  See Tex. Fam. Code § 161.003.  The jury found clear and convincing evidence supporting at least one of these grounds for termination and that termination is in the best interest of the child.  

The child’s maternal grandmother and maternal step-grandfather, Anita Louise M. and Gary Wayne M., intervened in the suit, seeking appointment as managing conservators of the child.  After terminating Amy’s parental rights, the court appointed the intervening grandparents joint managing conservators of the child, finding that the appointment is in the child’s best interest. 

STATEMENT OF APPELLATE POINTS

In an appeal from a final order in a termination proceeding over a child in DFPS care, a party who intends to appeal must file a statement listing the points on which she intends to appeal.  Tex. Fam. Code § 263.405(b)(2).  In her statement of points on appeal, Amy primarily challenged the grandparents’ intervention.  Amy asserted that the trial court erred in failing to dismiss the grandparents’ intervention because they lacked standing to intervene and that granting their intervention was not in the best interest of the child.  She also alleged that there was insufficient evidence to support submission of the issue of managing conservatorship to the jury.  She generally asserted that the evidence did not support the jury’s verdict and the verdict is not in the best interest of the child, but she alleged no specific point challenging the statutory grounds for termination.[2]

FRIVOLOUS FINDING

Texas Family Code section 263.405(d)(3) directs the trial court to determine whether an appeal from a termination order is frivolous “as provided by section 13.003(b), Civil Practices and Remedies Code.”  Tex. Fam. Code § 263.405(d)(3).  Section 13.003(b) provides that “[i]n determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review.”  Tex. Civ. Prac. & Rem. Code § 13.003(b).  An appeal is frivolous if it lacks an arguable basis in either fact or law.  See In re J.J.C., 302 S.W.3d 436, 444 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). 

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.—San Antonio 2006, no pet.).  Under this standard, we decide whether the trial court acted without reference to guiding rules and principles or if the complained-of act is arbitrary and unreasonable.  Lumpkin v. Tex. Dep’t of Family & Prot. Servs., 260 S.W.3d 524, 527 (Tex. App.— Houston [1st Dist.] 2008, no pet.).

In its order determining that Amy’s appeal is frivolous, the trial court found that the maternal grandmother had standing to intervene pursuant to Texas Family Code section 102.004(b).[3] The court found that the maternal step-grandfather had standing by virtue of his substantial contact with the child, also pursuant to section 102.004(b). The court further found that if any error occurred in granting leave for the grandparents to intervene, such error would not require reversal because their appointment was authorized under Family Code section 161.207(a) without an intervention.[4] The court found that legally and factually sufficient evidence was presented to the jury that the appointment of the grandparents as managing conservators was in the best interest of the child.  Specifically, the court noted that the grandparents had (1) maintained contact with the child since her birth; (2) been present at the hospital emergency room where Amy took the child; (3) invited and allowed both the child and Amy to spend nights at their home; (4) voluntarily taken custody of the child when Amy was committed to a mental health institute; and (5) established a loving, caring, nurturing, protective, and responsible relationship with the child.  The court also found that Amy’s contrary evidence, when viewed in light of the entire record, was not against the greater weight of the evidence.  The court summarized the evidence that Amy submitted against appointment of the grandparents as follows: (1) Amy’s unsubstantiated allegations that the grandparents had attempted to poison her and her child; (2) allegations that the grandfather “had allowed unsupervised contact between the child and inappropriate family members;” and (3) testimony that the grandmother had mistreated Amy as a child and teenager. 

APPELLATE RECORD

            The record before this court includes a reporter’s record from the hearing under section 263.405(d), but there is no reporter’s record from the trial.  If a trial court determines in a section 263.405(d) hearing that an appeal on the issues attempted to be raised by the parent would be frivolous, review generally is limited to the record of that hearing.  In re B.G., 317 S.W.3d 250, 258 (Tex. 2010); see also Tex. Fam. Code § 263.405(g) (“The appellant may appeal the court’s order denying the appellant’s claim of indigence or the court's finding that the appeal is frivolous by filing with the appellate court the reporter's record and clerk’s record of the hearing held under this section, both of which shall be provided without advance payment, not later than the 10th day after the date the court makes the decision.  The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues.  The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.”) 

            Courts, including this court, have determined that it may sometimes be necessary to consider the record from the trial in reviewing a frivolous finding.  See In re J.J.C., 302 S.W.3d at 447; In re M.R.J.M., 193 S.W.3d 670, 674 (Tex. App.—Fort Worth 2006, no pet.) (holding that section 263.405(g) grants authority to order trial record without advance payment of costs when appellant is indigent).  In this case, the trial court found that Amy is not indigent.  Therefore, Amy had the burden to properly request and pay for the reporter’s record.  See Tex. R. App. P. 35.3(b)(3); Carter v. Carter, 225 S.W.3d 649, 651 (Tex. App.—El Paso 2006, no pet.).  Amy conceded that at the time she filed her appeal, she had sufficient funds to pay for preparation of the record from the trial, but she did not do so.  This court afforded Amy an opportunity to file the reporter’s record from the trial, but the trial record has not been filed. [5]  Accordingly, we consider the appeal on the record before us.

DISCUSSION

            An appeal of a termination order is limited to the issues presented in the statement of points.  See Tex. Fam. Code § 263.405(i); see also Pool v. Tex. Dep’t of Family & Prot. Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  To satisfy the requirements of section 263.405(i), a statement of points must be “sufficiently specific” to allow the trial court to correct any erroneous findings on the challenged grounds.  In re J.J.C., 302 S.W.3d 436, 444 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); see also In re G.W.P., No. 14-08-00035-CV, 2009 WL 2568292, at *2 (Tex. App.—Houston [14th Dist.] Aug. 20, 2009, no pet.) (mem. op.) (holding that statement challenging the legal and factual sufficiency of the evidence to support the trial court’s “ruling” lacked the specificity required to preserve such challenges for review).

If the statement of points on appeal does not specifically challenge the sufficiency of the evidence supporting the statutory grounds for termination, those issues are not preserved for appellate review.  J.J.C., 302 S.W.3d at 444.  Amy’s points did not specifically challenge the evidence supporting termination.  Because Section 236.405(i) bars our consideration of the merits of a challenge to the grounds for termination, Amy’s appeal of the termination judgment is frivolous.

We next consider Amy’s challenge to the order granting conservatorship to the grandparents.  Amy’s statement of points challenged the both the failure to strike the grandparents’ intervention and the sufficiency of the evidence supporting the conservatorship order. 

At the Section 263.405(d) hearing, Amy testified about newly discovered evidence concerning the grandfather and she contested the truthfulness of his trial testimony.  She testified that she did not learn until after trial that the grandfather, who is an oral surgeon, had prescribed her numerous sedatives and antipsychotics during the two years before trial.  No issue was raised in the motion for new trial or statement of points alleging newly discovered evidence or false testimony, however.  Amy’s counsel argued that the testimony was relevant to the finding that appointing the grandparents as managing conservators was in the best interest of the child, and the trial court overruled objections to this testimony.  In the absence of a specific challenge in the statement of points, Amy’s claims about new evidence and false testimony may not be considered, however.  See In re J.J.C., 302 S.W.3d at 444.

            The grandparents filed a petition in intervention on October 2, 2009, in which they asserted that they had standing because the child had lived with them since March 17, 2009.  See Tex. Fam. Code § 102.003(a)(9).[6]  Amy moved to strike the intervention, claiming the grandparents lacked standing.  In her statement of appellate points, she complained that the evidence is insufficient to support the grandparents’ standing and the trial court erred in failing to dismiss the intervention.  Grandparents have standing to bring suit for managing conservatorship if they provide proof that the child’s present circumstances would significantly impair the child’s physical health or emotional development.  See Tex. Fam. Code § 102.004(a)(1);[7] In re Vogel, 261 S.W.3d 917, 921 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); cf. In re Derzapf, 219 S.W.3d 327, 332, n.10 (Tex. 2007) (noting that suits for grandparent access are governed by chapter 153, which has different standing requirements than grandparent suits for conservatorship).

A trial court may consider evidence on the standing issue when necessary to determine jurisdictional facts.  See In re Kelso, 266 S.W.3d 586, 590 (Tex. App.—Fort Worth 2008, orig. proceeding).  In termination cases, the trial court’s ruling on a motion to strike an intervention is reviewed for an abuse of discretion.  In re A.M., 60 S.W.3d 166, 168 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  In conducting this review, we must analyze the evidence supporting the grandparents’ standing.  See id. at 169. 

            Generally, if no reporter’s record is filed due to the fault of the appellant, we may consider and decide only those issues that do not require a reporter's record for a decision. See Tex. R. App. P. 37.3(c).  We cannot review the sufficiency of the evidence in the absence of a reporter’s record from the trial.  See In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied), cert. denied, 130 S. Ct. 1281 (2010) (affirming termination where parent failed to pay for preparation of reporter’s record after court ordered partial payment); see also In re H.M.J.H., 209 S.W.3d 320, 322 (Tex. App.—Dallas 2006, no pet.) (affirming default judgment denying grandmother’s request for custody where she filed no reporter’s record). 

We are unable to determine that the trial court abused its discretion in denying the motion to strike the intervention in the absence of the reporter’s record from the trial or any pre-trial hearing on the standing issue.  See In re H.B.N.S., Nos. 14-05-00410-CV, 14-05-00102-CV, 2007 WL 2034913 (Tex. App.—Houston [14th Dist.] July 17, 2007, pet. denied) (mem. op.) (reviewing evidence from evidentiary hearing on standing in affirming trial court’s failure to strike intervention).  Accordingly, we cannot say that the trial court abused its discretion in determining that an appeal challenging the grandparents’ standing would be frivolous.

            A reporter’s record is also required to review the Amy’s complaints that the trial court’s appointment of the grandparents as managing conservators is not supported by the evidence and is not in the child’s best interest.  Section 161.207 of the Texas Family Code provides that the court shall appoint a suitable competent adult or the DPFS as managing conservator if the court terminates the parent-child relationship with respect to both parents or to the only living parent.  Tex. Fam. Code Ann. § 161.207.  The jury findings underlying a conservatorship appointment are subject to ordinary legal and factual sufficiency review.  In re J.A.J., 243 S.W.3d 611, 617 n. 5 (Tex. 2007).

When the factual or legal sufficiency of the evidence is at issue, the appellant’s burden to show that the judgment is erroneous cannot be discharged in the absence of a complete or an agreed statement of facts.  Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).  In the absence of the trial record, we cannot review the sufficiency of the evidence supporting the appointment of the grandparents as managing conservators of the child.  See In re J.C., 250 S.W.3d at 489. Accordingly, we cannot say that the trial court abused its discretion in determining that any appeal from the conservatorship order would be frivolous.

In conclusion, we hold that the trial court did not abuse its discretion in its determination that Amy’s appeal is frivolous.  Amy’s sole issue is overruled.  We affirm the trial court’s judgment.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Yates and Boyce.

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[1]   The parental rights of the child’s father were also terminated, but the father did not appeal.

[2]  Amy’s motion for new trial and statement of points contained the following points:

The trial court erred because it failed to dismiss Intervenor's Petition in Intervention in Suit Affecting the Parent-Child Relationship for Termination of the Parent-Child Relationship. The evidence is factually insufficient to support the finding that Intervenors, Anita Louise M[.] and Gary Wayne M[.], maternal grandmother and maternal step-grandfather of the child the subject of this suit, had standing to intervene in this cause of action.  The Court's failure to dismiss Intervenors’ cause of action for lack of standing was error.  The Court’s failure to dismiss Intervenors’ cause of action for lack of standing was not in the best interest of the child the subject of this suit.  The evidence submitted did not support the jury's verdict.  There was insufficient evidence or no evidence submitted to support the submission of the issue of managing conservatorship to intervenors to the jury.  The granting of the petition in intervention was not in the best interest of the child and not supported by the evidence presented.  The petitioner’s [sic] wrongfully interfered with the respondent's ability to properly present her case to the court and the jury.  The verdict is not in the best interest of the child.

[3] Section 102.004(b) provides that “the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.”  Tex. Fam. Code. § 102.004(b).

[4] Section 161.207 of the Texas Family Code provides that the court shall appoint a suitable competent adult or the DPFS as managing conservator if the court terminates the parent-child relationship with respect to both parents or to the only living parent.  Tex. Fam. Code § 161 .207. 

[5] This court initially ordered the court reporter to file the complete record from the trial.  DFPS objected because the trial court had ruled that Amy is not indigent.  Accordingly, this court directed Amy to pay for preparation of the complete record and have it filed within 60 days.  See Tex. Fam. Code § 263.405(f) (requiring record in termination cases to be filed in 60 days).  The Family Code provides that we may not extend time for filing a record or brief in a termination appeal “except on a showing of good cause.”  Tex. Fam. Code § 263.405(h).  Based on Amy’s claims of hardship, the court granted her three extensions of time to pay for preparation of the record.  The record was not filed, and the court ordered that no further extensions of time would be granted. 

[6] Section 102.003(a)(9) provides that an original suit may be brought by “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”).  Tex. Fam. Code § 102.003(a)(9).

[7] Section 102.004(a) provides:

In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or

(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

Tex. Fam. Code § 102.004(a).