Opinion
No. 04-04-00706-CV
Delivered and Filed: June 15, 2005.
Appeal from the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-PA-00766, Honorable Pat Priest, Judge Presiding.
The Honorable Patrick J. Boone was the presiding judge of the 57th Judicial District Court, Bexar County, Texas at the time of trial. The Honorable Pat Priest presided over the instant proceedings.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Curtis James Pape appeals the trial court's determination that an appeal of the order terminating his parental rights would be frivolous. See Tex. Fam. Code Ann. § 263.405 (Vernon 2002). In his statement of appellate points filed with the trial court, Pape challenges the legal and factual sufficiency of the evidence to support each of the four grounds for termination as well as the trial court's finding that termination was in the child's best interest. After a thorough review of the record and the briefs on the merits, we conclude that the trial court did not abuse its discretion in determining that Pape's appeal would be frivolous, and we therefore affirm the trial court's judgment.
Pape also raises an issue regarding whether the Texas Department of Family Protective Services had any live pleadings asserting grounds for termination at the time the case was tried. However, because Pape failed to raise this complaint in the trial court by a timely request, objection, or motion stating the grounds for the complaint and obtain a ruling, this issue was not properly preserved for appellate review. Tex.R.App.P. 33.1(a).
An appeal is frivolous when it lacks an 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.) (en banc). In determining whether an appeal is frivolous, the trial judge considers whether the appellant has presented a substantial question for appellate review. Tex. Civ. Prac. Rem. Code Ann. § 13.003 (b) (Vernon 2002); De La Vega, 974 S.W.2d at 153-54. We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. De La Vega, 974 S.W.2d at 154.
We begin our analysis by noting that Pape's brief on appeal restates his appellate points but otherwise fails to direct this court to anything in the record supporting his contention that his intended points on appeal are not frivolous. See In the Interest of A.M.R., No. 04-03-00335-CV, 2003 WL 21467518, at *1 (Tex.App.-San Antonio June 25, 2003, no pet.) (not designated for publication) (trial court did not abuse its discretion in determining appellate points were frivolous where appellant failed to summarize for trial court where the evidence was missing or insufficient to sustain the trial court's findings). In addition, our own review of the record reveals that the evidence is legally and factually sufficient to support at least one of the statutory grounds for termination and the trial court's finding that termination would be in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re K.R.M., 147 S.W.3d 628, 630 (Tex.App.-San Antonio 2004, no pet.) (in termination proceedings, the petitioner must establish one or more of the statutory grounds for termination and must also prove that termination is in the best interest of the child). Specifically, there was ample evidence presented at trial regarding Pape's history of choices and conduct which endangered the physical and emotional well-being of the child. See Tex. Fam. Code Ann. § 161.001 (1) (D), (E) (Vernon 2002). There was also evidence regarding Pape's failure to maintain significant contact with the child and his inability to provide the child with a safe environment. See Tex. Fam. Code Ann. § 161.001 (1) (N) (Vernon 2002). Pape failed to provide any type of financial support for the child, even at times when he was out of jail, employed, and earning considerable income. There was also evidence that significant requirements from Pape's family service plan had not been completed despite the fact that Pape had been given a considerable extension of time in order to work on additional services. See Tex. Fam. Code Ann. 161.001 (1) (O) (Vernon 2002). As of the time of trial, Pape's only plan for the immediate care needs of his son during the remainder of Pape's incarceration was for the child to live with relatives in Seguin who had never met the child and who may not have even been aware of the child's situation, condition, and history. There was no evidence that these relatives were willing, able, or appropriate to care for and meet the financial, physical, and emotional needs of the child.
Accordingly, we conclude that the trial court did not abuse its discretion in determining that an appeal based on Pape's asserted issues would be frivolous. The trial court's judgment is affirmed.