in the Interest of J.M., L.M., and K.M., Children ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00108-CV

In the Interest of J.M., L.M., and K.M., Children

From the 361st District Court

Brazos County, Texas

Trial Court No. 07-001211-CV-361

MEMORANDUM  Opinion

            The trial court’s judgment terminated the parental rights of the mother and father to their three children.  A 30 day hearing was held pursuant to the Texas Family Code.  Tex. Fam. Code Ann. § 263.405(d) (Vernon Supp. 2007).  The trial court determined that the appeal on the statement of points that had been filed was frivolous.  We are to review the trial court’s determination that the appeal is frivolous.  Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2007).  The statute does not require briefing on the issue and prohibits oral argument, apparently for the purpose of expediting this review and determination.  Id.  We do not need briefing on the issue in this proceeding.^[1]

            The statement of points raised by the mother and father are exactly the same.  They are as follows:

            1.  The trial court erred when it terminated mother’s/father’s parental rights to the children under Texas Family Code Section 161.001(1)(D) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that mother/father knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children. 

            2.  The trial court erred when it terminated mother’s/father’s parental rights to the children under Texas Family Code Section 161.001(1)(E) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that mother/father engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the child. 

            3.  The trial court erred when it terminated mother’s/father’s parental rights to the children under Texas Family Code Section 161.001(2) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that termination of mother’s/father’s parental rights to the children is in the child’s best interest.

            4.  Mother/Father was denied her/his Due Process rights under the United States Constitution due to ineffective assistance of her/his court-appointed attorney, whose assistance fell below an objective standard of reasonableness and said deficient assistance prejudiced her/him and allowed the Court to wrongly order termination of her/his parental rights.

            We have reviewed the record of this proceeding upon which the trial court made its finding that the appeal on the issues presented in the statement of points was frivolous.  Because the trial court was asked to recall the testimony of the trial on the merits in making its frivolousness determination, this review included a review of the record of the trial on the merits.  We review the trial court’s determination for an abuse of discretion.  See In the Interest of T.G., No. 04-06-00882-CV, 2007 Tex. App. LEXIS 4187, *3 (Tex. App.—San Antonio May 30, 2007, no pet.) (released for publication August 24, 2007). 

            The trial court did not err in its determination that an appeal on the issues presented in the statement of points is frivolous.  We affirm the trial court’s decision.  See In re S.T., No. 10-07-00306-CV, 2008 Tex. App. LEXIS 3920 (Tex. App.—Waco May 28, 2008, no pet. h.). 

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed June 11, 2008

[CV06]

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[1] Without a request from this Court for briefing, see Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2007), appointed counsel proceeded to brief the frivolousness issue.  Counsel concluded that there was no merit to an appeal of the trial court’s determination that an appeal on the statement of points was frivolous.  Counsel thus filed a motion to withdraw as counsel and a supporting Anders brief.  See Anders v. California, 386 U.S. 738; 87 S. Ct. 1396; 18 L. Ed. 2d 493 (1967).  We have previously held that the Anders procedures can be utilized when counsel is appointed to represent the parents in the appeal of a termination case.  In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order).  In this instance, because we had not requested briefing, we did not require further compliance with the Anders procedures.