Opinion
No. 04-04-00397-CV
Delivered and Filed: January 26, 2005.
Appeal from the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2002-PA-02180, Honorable David A. Berchelmann, Jr., Judge Presiding.
Affirmed.
Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Laura Lucia Lugo Montemayor ("Montemayor") appeals the trial court's determination that an appeal of the order terminating her parental rights would be frivolous. An appeal is frivolous when it lacks arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.). In determining whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a substantial question for appellate review. Id. A trial court's determination that an appeal is frivolous is reviewed under an abuse of discretion standard. Id.
The sole issue Montemayor intended to present on appeal is whether the State proved by clear and convincing evidence that termination was in the best interest of the children and that sufficient grounds existed to support termination. The standard of review in a factual sufficiency challenge to termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
The Department of Family and Protective Services initially became involved with the Montemayor family in March of 2001 when Montemayor delivered her eighth child. Montemayor had a very high blood alcohol level at the time of the delivery, and the child also had a high blood alcohol level. Several of Montemayor's older children were at the hospital, but the younger children had been left at home alone. The house reeked of urine and the children were dirty. The children were removed from the home and placed in the Department's custody.
The children were returned to the home in November of 2001 except for the oldest boy who was returned home in May of 2002. The case was officially closed in August of 2002. Sometime later, Montemayor voluntarily placed the oldest boy in Boysville because she could not control his behavior. In November of 2002, a caseworker returned to the home to deliver a turkey to the family. Three children made outcries of physical abuse, and the caseworker observed physical signs that confirmed the outcries. Montemayor admitted hitting the children because she was angry at them for failing to clean the house. The children were removed from the home and placed in the Department's custody for a second time.
In April of 2003, a youth care leader at a children's shelter monitored a phone call between Montemayor and her two older daughters. Montemayor instructed the children to lie to the caseworkers about whether her older son had inappropriately touched them. Montemayor believed the older girls were lying about whether the touching had occurred. One caseworker testified that Montemayor had accused caseworkers, therapists, staff, and her children of lying.
In August of 2003, the decision was made to attempt to reunify the family. In September of 2003, the four younger children were returned home. In November of 2003, one of the children made an outcry to her first grade teacher. The child told the teacher that her mother pushed her little sister down and kept her in the closet in diapers. The child also reported to a caseworker that the mother told her little sister that she did not belong to the family and that she did not like her. The caseworker investigated and observed physical signs of abuse. The children were removed from the home for a third time and placed in the Department's custody.
Although witnesses testified about progress Montemayor made at various times during the children's removal, witnesses also testified that since their removal, the children have excelled in school and in taking care of themselves and have grown emotionally. Having considered all of the evidence before the trial court, we conclude that the trial court did not abuse its discretion in determining that an appeal based on the factual sufficiency of the evidence would be frivolous.
The trial court's judgment is affirmed.