in the Interest of J.J.S., D.D.S., and L.S., Children , 272 S.W.3d 74 ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00209-CV
IN THE INTEREST OF J.J.S., D.D.S., AND L.S.,
CHILDREN,
From the 272nd District Court
Brazos County, Texas
Trial Court No. 07-000004-CVD-272
OPINION
After the trial court entered a decree terminating Laura S.’s1 parental rights with
respect to her children, J.J.S., D.D.S., and L.S., and then determined that her appeal is
frivolous, Laura appeals the frivolousness determination. See TEX. FAM. CODE ANN. §
263.405(g) (Vernon Supp. 2007); In re S.T., --- S.W.3d ---, No. 10-07-00306-CV, 2008 Tex.
App. LEXIS 3920 at *1 (Tex. App.—Waco May 28, 2008, pet. filed); In re K.D., 202 S.W.3d
860, 866 (Tex. App.—Fort Worth 2006, no pet.). We will affirm the determination.
1 We use fictitious names for the parents in accordance with recently amended Rule of Appellate
Procedure 9.8(b). TEX. R. APP. P. 9.8(b).
Procedural Background
Following a three-day bench trial, the court rendered judgment terminating the
parent-child relationship between Laura and three of her minor children. The decree
recites affirmative findings on three predicate grounds for termination: (1) knowingly
placing or allowing the children to remain in conditions or surroundings which
endangered their physical or emotional well being; (2) engaging in conduct or
knowingly placing the children with persons who engaged in conduct which
endangered the children; and (3) failing to comply with the provisions of a court order
establishing the actions necessary for the return of the children. See TEX. FAM. CODE
ANN. § 161.001(1)(D), (E), (O) (Vernon Supp. 2007).
Laura filed a statement of points for appeal that asserts:
1. The trial court erred in its findings on the three predicate grounds for
termination because the evidence is legally and factually insufficient.
2. The trial court erred by finding that terminating Laura’s parental
rights was in the best interest of the children when testimony by the
Department of Protective and Family Service’s (Department) child
therapist favored allowing the father, Jon, to keep his parental rights
despite the fact that he has been indicted for sexual molestation of L.S.
3. The trial court erred by not appointing Laura as possessory
conservator with supervised visitation.
4. Section 263.401 is unconstitutional as applied to Laura because the
statutory time limit prevented her from complying with the
Department’s parenting plan.
5. The Department failed to take reasonable efforts to reunify the
children with Laura.
In the Interest of J.J.S., D.D.S., and L.S. Page 2
The trial court ruled that the five points quoted above “are frivolous as each
finding of fact entered was made based on the trial court’s assessment of the credibility
of the witnesses at the time of trial.” See TEX. FAM. CODE ANN. § 263.405(d)(3) (Vernon
Supp. 2007). Further, the trial court found that no credible evidence supported Laura’s
contention that the findings of fact were made arbitrarily or unreasonably under all the
evidence presented in this case.
Laura contends that the trial court abused its discretion by finding that her
points were frivolous and asks us to reverse the trial court’s order.
Standard of Review
Section 263.405(d)(3) requires a trial court to determine whether “the appeal is
frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.” TEX.
CIV. PRAC. & REM. CODE ANN. § 263.405(d)(3). Section 13.003(b) of the Civil Practice and
Remedies Code provides, “In determining whether an appeal is frivolous, a judge may
consider whether the appellant has presented a substantial question for appellate
review.” Id. § 13.003(b) (Vernon 2002).
We review the court’s decision under an abuse-of-discretion standard. In re S.T.,
--- S.W.3d at ---, 2008 Tex. App. LEXIS 3920 at *1; In re M.N.V., 216 S.W.3d 833, 834 (Tex.
App.—San Antonio 2006, no pet.); K.D., 202 S.W.3d at 866; In re H.D.H., 127 S.W.3d 921,
923 (Tex. App.—Beaumont 2004, no pet.). “An appeal is frivolous when it lacks an
arguable basis in law or in fact.” M.N.V., 216 S.W.3d at 834 (citing De La Vega v. Taco
Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.)); accord K.D.,
202 S.W.3d at 866; H.D.H., 127 S.W.3d at 923.
In the Interest of J.J.S., D.D.S, and L.S. Page 3
Dangerous Conduct
In her first point Laura contends that trial court erred in its frivolousness finding
because the evidence at trial was legally and factually insufficient to support the court’s
finding under section 161.001(1)(E) that she engaged in conduct which endangered the
physical or emotional well-being of her children.2 Laura argues that she did not
knowingly endanger the children by staying in an abusive relationship with her ex-
husband Jon because Jon was directly responsible for the abuse. She claims that it was
Jon who was abusing her in front of the children and Jon who was later indicted for
sexual molestation of their youngest daughter, L.S. She also argues that because she
voluntarily placed her children in the care of the department, this shows that she did
not knowingly allow her children to remain in a dangerous environment.
The Supreme Court has set forth the applicable standard of review for a factual
insufficiency complaint in a parental-rights termination case.
[A]s we explained in In re C.H., a court of appeals must give due
consideration to evidence that the factfinder could reasonably have found
to be clear and convincing. We also explained in that opinion that the
inquiry must be “whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s
allegations.” A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.
2 We construe this to be a complaint that there is factually insufficient evidence to support the trial
court’s first predicate ground for termination of her parental rights.
In the Interest of J.J.S., D.D.S, and L.S. Page 4
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (footnotes omitted).
Although the factual sufficiency of the evidence is not the immediate complaint
under review, we must bear in mind this standard when evaluating whether Laura’s
first point has an arguable basis in law or in fact. Thus, the issue before us is whether
the court abused its discretion by determining that the evidence is such that a factfinder
could have reasonably formed a firm belief or conviction that the Department’s
allegations are true. See K.D., 202 S.W.3d at 867-68.
A parent may be found to have engaged in conduct which endangers a child
even if that conduct is not directed toward the child. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987); Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190
S.W.3d 189, 195 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); In re S.A.P., 169
S.W.3d 685, 702 (Tex. App.—Waco 2005, no pet.). The requisite endangerment may be
found if the evidence shows a course of conduct by the parent which has the effect of
endangering the child. Boyd, 727 S.W.2d at 534; Vasquez, 190 S.W.3d at 195; S.A.P., 169
S.W.3d at 702.
To endanger means to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at
533; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection 161.001(1)(E),
the relevant inquiry is whether evidence exists that the endangerment of the child's
physical well-being was the direct result of the parent's conduct, including acts,
omissions, or failures to act. S.A.P., 169 S.W.3d at 702; Dupree v. Tex. Dep't Prot. & Reg.
Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ). Termination under
In the Interest of J.J.S., D.D.S, and L.S. Page 5
subsection 161.001(1)(E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is required. Boyd,
727 S.W.2d at 533-34.
While "endanger" means more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment, it is not necessary that the
parent's conduct be directed at the child or that the child actually suffer injury. Id. at
533. An actual or concrete threat of injury to the child need not be proved. Director of
Dallas County Child Prot. Servs. Unit of Tex. Dep't Human Servs. v. Bowling, 833 S.W.2d
730, 733 (Tex. App.—Dallas 1992, no writ). The specific danger to a child's physical or
emotional well-being need not be established as an independent proposition, but it may
be inferred from parental misconduct. See Boyd, 727 S.W.2d at 533. The conduct need
not be aggressive behavior or physically abusive conduct; it can include emotional, as
well as physical endangerment. S.A.P., 169 S.W.3d at 703.
Case law interpreting section 161.001(1)(D) and (E)3 has allowed for termination
of the parent-child relationship for violent or negligent conduct directed at the other
3 Under Texas Family Code section 161.001(1)(D) and (E) the court may involuntarily
terminate the parent-child relationship if the court finds:
(1) the parent has: . . .
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical and emotional
well-being of the child; or
(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;
TEX. FAM. CODE ANN. § 161.001(1)(D), (E).
In the Interest of J.J.S., D.D.S, and L.S. Page 6
parent or other children, even where the behavior was not committed in the child's
presence. See In re D.M., 58 S.W.3d 801, 811-12 (Tex. App.—Fort Worth 2001, no pet.)
(holding that if parent abuses or neglects other parent or children, that conduct can be
used to support finding of endangerment); Navarrette v. Texas Dep't of Human Resources,
669 S.W.2d 849, 850 (Tex. App.—El Paso 1984, no writ) (upholding termination of
parental rights over child taken into custody from hospital after birth, even though
child was not subjected to deplorable living conditions of six siblings); In re B.J.B., 546
S.W.2d 674, 676 (Tex. Civ. App.—Texarkana 1977, writ ref'd n.r.e.) (father stabbed
mother in kitchen while daughters played in bedroom).
In Findings of Fact Nos. 9 and 21, the court found that Laura’s testimony
demonstrated that she conducted herself in a manner, namely her abusive relationships,
which exposed her children to a home where physical violence was present. This
provided the court with clear and convincing evidence that Laura had engaged in
conduct which endangered the physical and emotional well being of her children. In
Finding of Fact No. 10, the court also found that Laura had been convicted of two
counts of Child Endangerment.
The trial court heard significant testimony regarding the existence of family
violence within the home. At trial, Laura testified regarding her previous child
endangerment charges: shortly after being prosecuted for criminally negligent
homicide, for which she received six-months’ probation, Child Protective Services (CPS)
became involved with her family. Laura informed CPS that she had pled guilty to two
child endangerment charges in Milam County for intentionally crashing into her
In the Interest of J.J.S., D.D.S, and L.S. Page 7
husband’s vehicle when he was inside it, while her children watched.4 In justifying her
actions against Jon, she claimed that he had “beaten her up” on that same day. Laura
also testified that during her marriage to Jon, they were continually arguing and he
slapped her. She later tried to divorce him but eventually continued the marriage only
to have Jon’s violence increase. Laura testified that in 2005, she took her son H.W.G.5 to
Florida for a couple of months with Steve Franks, a man she was dating at the time.6
She testified that while she was there, Franks became intoxicated and slapped her and
another little girl while H.W.G. was present.
Laura also testified that later in 2005, she filed a protective order against Jon, but
then had it dismissed because the couple had gotten back together. While Jon and
Laura continued their cycles of separating and getting back together, the children were
moved repeatedly.7 J.J.S. moved three times during his second-grade year and was
forced to repeat the second half because of his frequent absences.
Evidence of the negative influence of the abusive home on the children is also
found in the testimony of the CPS caseworkers and therapists. Sarah Hataway, a
caseworker with the Department, testified that Laura told her that Jon had beaten her
many times and had even sexually assaulted her. Fran Duane, the children’s counselor,
4 Laura was also convicted of aggravated assault with a deadly weapon for the same incident; she
served six weeks in county jail.
5 A child from a previous relationship.
6 While Laura was in Florida, she left J.J.S., D.D.S., and L.S. in Georgia with Jon.
7 When asked about where she was living in 2005 Laura testified “me and Jon had got back
together and split up so many times it’s confusing to me. I believe I had a house on Waverly Street in
2005.”
In the Interest of J.J.S., D.D.S, and L.S. Page 8
testified about their mental and emotional well-being. Duane testified that she
diagnosed J.J.S. with adjustment disorder, which affects his ability to function at school
and his mood. D.D.S. was also diagnosed with adjustment disorder, but with a
depressed mood, and exhibits behaviors such as being overwhelmed, spontaneous
crying, getting upset, irritability, and altered eating habits. She also testified that
D.D.S.’s former therapist had diagnosed her with general anxiety disorder. According
to Duane, D.D.S.’s anxiety disorder was attributable to the domestic violence she had
been exposed to. Duane testified that L.S. also has adjustment disorder but with mixed
emotions and conduct and optional defiant disorder by history.8 This causes her to
have significant behavioral problems.
To summarize, the Department presented evidence of the physical and emotional
abuse present in the home. The record contains evidence that both Jon and Laura were
violent towards each other when the children were present. Having reviewed the entire
record, we find the evidence of Laura’s conduct is such that the trial court as factfinder
could have reasonably formed a firm belief or conviction that Laura engaged in conduct
which endangered the physical and emotional well-being of her children. See In re
J.F.C., 96 S.W.3d at 266. Therefore, we hold that the trial court did not abuse its
discretion by concluding that Laura's appeal of these issues would be frivolous. See
K.D., 202 S.W.3d at 868; see also In re A.V. 113 S.W.3d 355, 361 (Tex. 2003). Accordingly,
we overrule Laura’s first point.
8 According to Duane, oppositional defiance causes children to directly defy someone for no
reason or gain and causes them to lie for no reason.
In the Interest of J.J.S., D.D.S, and L.S. Page 9
Because we have found the evidence factually sufficient to support the finding
that Laura engaged in conduct which endangered the physical and emotional well-
being of her children, we need not address the sufficiency of the evidence to support the
remaining predicate grounds to determine frivolousness. See In re T.N.F., 205 S.W.3d
625, 629 (Tex. App.—Waco 2006, pet. denied); see also TEX. FAM. CODE ANN. § 161.001
(Vernon Supp. 2007).
Best Interest
For termination of the parent-child relationship, the factfinder must make an
affirmative finding: (1) on at least one predicate ground for termination; and (2) that
termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001
(Vernon Supp. 2007). The second point in Laura’s statement of points on appeal asserts
that the evidence is legally and factually insufficient to support the court’s finding that
termination is in her children’s best interest. Both legal and factual sufficiency reviews
in termination cases must take into consideration whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of the matter
on which the petitioner bears the burden of proof. J.F.C., 96 S.W.3d at 264-68
(discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing
factual sufficiency review).
In a legal sufficiency review, a court should look at all the evidence in the light
most favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder’s conclusions and the role of a court conducting a legal
In the Interest of J.J.S., D.D.S, and L.S. Page 10
sufficiency review, looking at the evidence in the light most favorable to the judgment
means that a reviewing court must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. A corollary to this
requirement is that a court should disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, a court of appeals must give due consideration to
evidence that the factfinder could reasonably have found to be clear and convincing. Id.
[T]he inquiry must be “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the
State’s allegations.” A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.
Id. at 266-67 (footnotes and citations omitted); see C.H., 89 S.W.3d at 25. We view the
evidence in a neutral light when reviewing for factual sufficiency.
In determining the best interest of a child, a number of factors have been
considered, including (1) the desires of the child; (2) the emotional and physical needs
of the child now and in the future; (3) the emotional and physical danger to the child
now and in the future; (4) the parental abilities of the individuals seeking custody; (5)
the programs available to assist these individuals; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
In the Interest of J.J.S., D.D.S, and L.S. Page 11
This list is not exhaustive, but simply indicates considerations that have been or could
be pertinent. Id.
Laura argues that the evidence was insufficient to support the trial court's best
interest finding because the Department allowed Jon to keep his parental rights. Laura
does not argue why it is in the best interest of the children to remain in her care, only
that Jon should not keep his parental rights because he was the abuser and he has been
indicted for the sexual abuse of L.S. The record shows that Jon agreed to give the
Department permanent managing conservatorship without termination while his
sexual abuse charges are pending. Counsel for the Department stated that if Jon is
found guilty, the Department will pursue termination, but that it may also pursue
termination even if Jon is found not guilty. Jon is currently allowed only supervised
visits with the children.
The record provides minimal insight into the desires of the children. Hataway
testified that, on occasions, the children ask to return home to their mother but at other
times the children express a desire to go back to certain foster parents.
As far as their emotional and physical well-being is concerned, Marie Clark, the
conservatorship supervisor for the Department, testified that Laura’s children had very
special emotional needs and that Laura showed no progress in counseling that would
enable her to meet those needs. Clark also testified that Laura had not shown an ability
to provide appropriate caregivers for the children, specifically referencing two
incidents. The first was an incident where Laura left the children home alone with her
thirteen-year-old son H.W.G, who then left the children home alone in the middle of the
In the Interest of J.J.S., D.D.S, and L.S. Page 12
night to go joyriding. During the joyride, H.W.G. was involved in a car accident, and
Laura delayed seeking medical attention for him.
The second incident occurred after the Department became involved in this case.
The Department asked Laura her placement preferences for the children. Laura
requested that the children be placed at her sister’s house. Laura failed to tell the
Department that M.D., a registered sex offender she had previously caught molesting
H.W.G., lived at her sister’s house as well.
At trial, Duane noted the chronic issues suffered by the children because of the
abuse and instability in Laura’s home. Duane recommended adoption of the children
into a stable home environment over allowing Laura to keep her parental rights.
Hataway testified that a major reason why the children were originally removed from
the home was due to instability in their lives because of Laura’s inability to parent.
Hataway spoke with Laura’s therapist, who said that Laura had not made any progress
towards the Department’s goals. In her opinion, reunifying the children with Laura
would simply place the children back in the same environment from which they were
removed.
In sum, the Department staff and therapists all testified that termination would
be in the children’s best interest because of Laura’s instability and history of abusive
relationships. Reviewing the factors that weigh in favor of and against termination, we
find the evidence legally and factually sufficient to support termination of Laura's
parental rights under the clear and convincing evidence standard because the evidence
established that Laura (1) had a history of staying in abusive relationships, and (2) made
In the Interest of J.J.S., D.D.S, and L.S. Page 13
little to no progress with the Department’s family service plan. Furthermore, multiple
specialists considered there to be a high risk of danger to the children’s mental and
emotional well-being, now and in the future. See Vasquez, 190 S.W.3d at 195. In
addition, the Department presented evidence indicating that Laura was aware that Jon
posed a risk to the children before the alleged assault of L.S. occurred. Cf. In re A.B., 125
S.W.3d 769, 775-78 (Tex. App.—Texarkana 2003, pet. denied) (upholding termination
finding as in child’s best interest when evidence showed parent was aware that
children's environment put them at risk for sexual assault).
Therefore, we hold that the trial court did not abuse its discretion by concluding
that Laura's appeal of these issues would be frivolous. See D.M., 58 S.W.3d at 817;
T.N.F., 205 S.W.3d at 629. We overrule Laura’s second point.
Remaining Points of Appeal
We turn now to Laura’s remaining points of appeal in which she challenges the
constitutionality of Section 263.041 and the Department’s efforts to reunite her with her
children. Laura’s fourth point of appeal argues without explanation that Section
263.401 is unconstitutional as applied to her because the statutory time limit prevented
her from complying with the Department’s family service plan. Because of our
disposition on the first and second issues, we need not reach her constitutional
question. We do not reach constitutional issues unless absolutely required to do so to
resolve the appeal. San Antonio General Drivers, Helpers Local No. 657 v. Thornton, 156
Tex. 641, 647, 299 S.W.2d 911, 915 (1957). Further, Laura does not argue how the statute
In the Interest of J.J.S., D.D.S, and L.S. Page 14
has been unconstitutionally applied. She merely argues that it is unconstitutional
without providing any authority. We overrule Laura’s fourth issue.
Laura’s third and fifth points argue that the trial court abused its discretion when
it failed to appoint her as possessory conservator and require the Department to make
reasonable efforts to reunify her with her children. Laura argues that like in Steed and
its progeny, the evidence was insufficient to warrant an emergency taking without a
court order. See In re Steed, --- S.W.3d ---, No. 03-08-00235-CV, 2008 Tex. App. WL
2132014 at *3 (Tex. App.—Austin, May 22, 2008, orig. proceeding); see also In re Tex.
Dept. of Fam. & Prot. Serv’s., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding).
According to Laura, the sole reason why the Department removed the children was
because of her pending criminal charges. She argues that because these charges did not
involve any danger to the children, they did not warrant emergency removal. The
temporary order granted by the trial court states that the Department became involved
in the case, not because of Laura’s previous criminal history, but because Laura
reported the outcry made by L.S.
Laura’s case is distinguishable from Steed for two reasons. First, there was
evidence that Laura had allowed her children to be subjected to sexual abuse. Second,
all of Laura’s children were directly affected by the physical abuse witnessed in her
household. In Steed, the Department went to the Yearning For Zion ranch to investigate
a distress call from a sixteen year-old girl. Tex. Dept. of Fam. & Prot. Serv’s., 255 S.W.3d
at 613. After interviewing a number of children, investigators concluded that there
were five minors who were or had been pregnant and that the belief system of the
In the Interest of J.J.S., D.D.S, and L.S. Page 15
community allowed minor females to marry and bear children. Id. They then removed
all 468 of the children in the community (including infants) from their homes and
ultimately separated the children from their parents.
The appellate court in Steed set aside the trial court’s order of removal, and the
Texas Supreme Court agreed because the Department failed to present evidence of
danger or harm with respect to every child in the community. Id. No evidence was
presented on the potential danger to any male children or any female children who had
not reached puberty. Id. The Department also did not show that any of the five
pregnant minors lived in the same household as the children represented in the
mandamus. Id. The Department was only able to show that the children who were
taken into custody lived at the Yearning For Zion ranch and they were living with
people who share a "pervasive belief system" that condones underage marriage and
underage pregnancy.
The Department presented evidence in Laura’s case that L.S. had accused Jon of
inappropriately touching her on two separate occasions. Evidence was also presented
that in 2004 Laura reported that Jon had inappropriately touched D.S. when the two
were taking a bath together. This is sufficient evidence to conclude that all of the
children were in "immediate" or "urgent" danger as contemplated by section 262.201. In
re M.L.J., --- S.W.3d ---, No. 02-07-00178-CV, 2008 Tex. App. LEXIS 3218 (Tex. App.—
Fort Worth May 1, 2008 pet. filed) (removal upheld when there was a risk or fear of
abuse as opposed to actual abuse or neglect).
In the Interest of J.J.S., D.D.S, and L.S. Page 16
The Department also made reasonable efforts to reunite Laura with her children.
After the children were removed, the Department put Laura on a family service plan so
that she could work toward getting her children back. Hataway testified that the
Department reviews progress on the service plan on an ongoing basis, even after the
Department pursues termination. Laura, unlike the mothers of the YFZ Ranch, had
many opportunities to show progress on her family service plan and regain custody of
her children. Hataway testified that unless Laura made progress on her service plan,
she could not regain custody of the children. Because Duane reported to the
Department and testified at trial that Laura made insufficient progress on the plan, re-
unification could not occur and the Department pursued termination. Because the
Department made reasonable efforts to reunite Laura with her children, we cannot say
that the trial court erred in finding this point frivolous. See In re K.M.B., 91 S.W.3d 18,
25 (Tex. App.—Fort Worth 2002, no pet.); see also In re E.A.W.S., No. 02-06-00031-CV,
2006 Tex. App. LEXIS 10515, at *61 (Tex. App.—Fort Worth Dec. 7, 2006, pet. denied)
(mem. op.) (noting that reasonable efforts to reunite parent and child can be satisfied
through preparation and administration of service plans). We thus overrule Laura’s
third and fifth points.
Conclusion
The court did not abuse its discretion by determining that Laura’s five points for
appeal are frivolous. Therefore, we affirm the order determining that Laura’s appeal is
frivolous.
In the Interest of J.J.S., D.D.S, and L.S. Page 17
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in judgment via a note. A separate opinion will not
issue.)*
Affirmed
Opinion delivered and filed October 22, 2008
[CV06]
* (Appeals of State initiated termination proceedings in which the parental rights of a
parent have been terminated have been a challenge for the trial courts, the appellate
courts, and the legislature. There are strong and competing objectives. The rights of the
parents must be recognized and protected. The State’s interest in protecting the child
must likewise be recognized and protected. But the need to promptly bring certainty to
the lives of children in view of these potentially competing interests has been difficult to
attain. The legislature has attempted to expedite the process by the imposition of rigid
deadlines and limited and expedited review of judgments terminating parental rights.
As part of this appellate process, the trial court judge must determine if the attempted
appeal is frivolous if the parent whose rights have been terminated is indigent. If the
appeal is determined to be frivolous, the parent is not entitled to a free record. In this
proceeding, the trial court determined that the parent whose rights had been terminated
was indigent and entitled to a free record but also determined that the appeal was
frivolous. These determinations are inconsistent and in conflict. The Court has
proceeded, nevertheless, to treat this as an appeal of solely the frivolousness
determination.
Whatever the Opinion is, it is not a decision on the single issue presented in the
brief—did the trial court abuse its discretion in determining the appeal is frivolous. I
am not sure it should be because the frivolousness determination is inconsistent with
the determination that appellant is entitled to a free record. Accordingly, I would
proceed to review the merits of the five issues presented in the statement of points, as
the Court has actually done, overrule each and affirm the trial court’s judgment of
termination. With these comments, and to that extent only, I join the judgment of the
Court.)
In the Interest of J.J.S., D.D.S, and L.S. Page 18