in the Interest of G.M.R., a Child ( 2010 )

Opinion filed April 22, 2010
In The
Eleventh Court of Appeals
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No. 11-09-00288-CV
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IN THE INTEREST OF G.M.R., A CHILD
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-2810-PC
MEMORANDUM OPINION
G.M.R. was born in December 2007. In August 2008, the Texas Department of Family
and Protective Services was named temporary managing conservator. Her mother executed an
irrevocable affidavit of relinquishment of her parental rights. After a bench trial, the trial court
terminated the parental rights of both G.M.R.’s mother and father. The father filed a statement
of points for appeal as required by TEX. FAM. CODE ANN. § 263.405(b) (Vernon 2008)
challenging both the legal and factual sufficiency of the evidence to support each ground for
termination. The trial court found that any appeal was frivolous pursuant to TEX. CIV. PRAC. &
REM. CODE ANN. § 13.003(b) (Vernon 2002). The father challenges both the trial court’s finding
that his appeal is frivolous and the termination of his parental rights. We affirm.
In his first issue, the father contends that the trial court abused its discretion when it
found that his appeal was frivolous. An appeal is frivolous under TEX. FAM. CODE ANN.
§ 263.405(d) (Vernon 2008) and Section 13.003(b) when the trial court determines that it lacks
an arguable basis in law or in fact. D.R. v. Tex. Dep’t of Family & Protective Servs., 281 S.W.3d
598, 602 (Tex. App.—El Paso 2008, no pet.); In re M.N.V., 216 S.W.3d 833 (Tex. App.—
San Antonio 2006, no pet.); In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no
pet.); In re H.D.H., 127 S.W.3d 921, 923 (Tex. App.—Beaumont 2004, no pet.). At this stage,
appellate review is limited to a review of the trial court’s exercise of its discretion in determining
that the appeal is frivolous. In re A.B., 269 S.W.3d 120, 124 (Tex. App.—El Paso 2008, no pet.);
Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526-27 (Tex. App.—Houston
[1st Dist.] 2008, no pet.); K.D., 202 S.W.3d at 865. This determination is made based on the
record before the appellate court. H.D.H., 127 S.W.3d at 924.
The record before this court consists of the clerk’s record, the supplemental clerk’s
record, and the reporter’s record from both the trial on the merits and the hearing on the father’s
points for appeal. At the hearing, the trial court took judicial notice of the affidavit of Wendy
Duran, which was attached to the State’s response to the father’s motion for new trial. The trial
court entered detailed findings of fact, which are included in the clerk’s record. The record
reflects that the same trial judge presided over the trial to terminate and the hearing on the
father’s points on appeal.
The mother testified that the father was physically abusive. She described how he abused
illegal drugs and would drink. The drugs and alcohol would make him more aggressive. She
described the father as “always angry.” The father often hit her when he drank. One time, he hit
their child when he was trying to hit her. The mother testified that the father would threaten to
hurt her and those she cared about if she left him. He also told her that, if she left him, he would
have more rights to their child.
The father did not support the child but would ask his father (the child’s grandfather) for
money to support the child. She stated that, when he did not drink, he was calm and nice.
However, he had never bonded with their child.
The mother testified that she took their child and went to a battered women’s shelter in
order to protect their child. The department had already removed the child from her custody
when she returned to the father. She stated that she returned because he had told her that he had
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changed. However, the father choked her and caused injuries to her neck that were similar to
injuries as if she had been in a car wreck. She was treated in a hospital for these injuries. After
this incident, she obtained a protective order against the father.
The mother stated that she was relinquishing her parental rights because she believed it
was in the child’s best interest. She stated that neither she nor the father could provide the child
with a stable home.
Teri Valero, a licensed professional counselor, testified that she was alarmed at the
father’s anger. He told her that he “wanted the anger” and that he “wanted revenge on the
situation.” He was easily frustrated, very self-centered, and told her that he liked “to be spoiled.”
Valero stated that the father’s attitude and anger was “unusual” and that he was dangerous.
Although he was approved for eight units of therapy, he only appeared for one.
Valero had observed the father’s interactions with the child. The child did not respond to
her father, and he was not nurturing toward her. Valero observed no bond whatsoever between
the two.
Wendy Duran, a caseworker with the department, testified that the department first
became involved with the child shortly after her birth due to concerns of physical neglect and the
condition of the home. The department again became involved in March 2008. The child had
been left in the father’s pickup unattended. Duran investigated the inside of the home and found
that it was dirty and unsafe. The father was uncooperative and would not answer questions.
In the summer of 2008, the department received approval for the emergency removal of
the child. The child was not placed with the father because of the previous concerns as well as
concerns about domestic violence. Duran described how both parents were offered services and
how both failed to complete the plans to have the child returned to them. The father did not
maintain steady employment, did not complete counseling, and did not follow the
recommendations suggested as a result of a drug and alcohol assessment. He visited the child
only seven of the scheduled thirty-two times. He often tested positive for alcohol. When the
father did visit the child, Duran observed no bond between them.
The father testified that the mother of their child was “childlike” and that he would get
frustrated with her. He stated that he was not “qualified” to handle someone like her. She would
try to scratch his face, and he would restrain her. He stated that she was not demanding, just
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“extremely playful” and “childlike.” He pushed her twice but neither time was she holding their
child.
He stated that his plan was for the child to remain in foster care until the protective order
expired in about a year. At that time, he thought that she could come live with him. He
disagreed with Valero’s statements that he was very angry and had a quick temper. He stated
that he did have a quick temper with the mother. He denied ever hitting the mother or their child
and denied drinking excessively. He asserted his Fifth Amendment rights when asked about his
arrest the week before trial for robbery and evading arrest.
The father has not established that the trial court abused its discretion in determining that
this appeal was frivolous. The record before this court supports the trial court’s conclusion that
the points on appeal lacked arguable basis in law or in fact. The first issue is overruled.
Because we have found that the trial court did not err in determining that the appeal was
frivolous, we do not reach the second issue that challenges the merits of the order terminating the
father’s parental rights.
The order of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
April 22, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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