Opinion
No. 04-04-00763-CV
Delivered and Filed: May 4, 2005.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-PA-01813, Honorable John J. Specia. Jr., Judge Presiding.
Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jose Alejandro Salazar and Jesse Rangel appeal the trial court's determination that an appeal of the order terminating their parental rights would be frivolous. On appeal, Salazar and Rangel argue that there is legally and factually insufficient evidence that termination of their parental rights is in the best interest of their respective children. We ordered this appeal to be considered on the record without briefing. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2002).
The trial court also overruled both Salazar's and Rangel's affidavits of indigence because they were neither signed nor sworn. According to Salazar and Rangel's attorney, neither Salazar nor Rangel came to her office to sign the affidavits. Despite the affidavits being unsigned and unsworn, she decided to file them.
Although Salazar's and Rangel's statement of appellate points presented additional issues, at the hearing on the motion for new trial and statement of appellate points, their attorney stated that she was only proceeding with the above issues and waiving all others.
Salazar and Rangel challenge the trial court's decision that their appellate points are frivolous. A court should determine whether an appeal of a termination order is frivolous "as provided by section 13.003(b), Civil Practice and Remedies Code." Tex. Fam. Code Ann. § 263.405(d)(3), (g) (Vernon 2002). Section 13.003(b), in turn, provides that in determining whether an appeal is frivolous, "a judge may consider whether the appellant has presented a substantial question for appellate review." Tex. Civ. Prac. Rem. Code Ann. § 13.003(b) (Vernon 2002). And, under section 13.003(b), "a proceeding 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) (citations omitted). We review a trial court's findings under section 13.003(b) for abuse of discretion. Id. As we determine whether an appeal of a termination order is frivolous as provided by section 13.003(b), we also review a trial court's findings under section 263.405 of the Family Code for abuse of discretion. See In re M.R.R., No. 04-04-00723-CV, 2004 WL 2597449, at *1 (Tex.App.-San Antonio Nov. 17, 2004, no pet.) (memorandum opinion).
Here, Salazar and Rangel contest the trial court's finding that an appeal challenging the trial court's best interest finding would be frivolous. We must, therefore, determine whether an appeal challenging the trial court's best interest finding would have arguable basis in law or in fact. When determining the best interest of the child, the trial court should consider such factors as: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the programs available to assist these individuals to promote the best interest of the child; (5) the plans for the child by these individuals; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. In re K.R.M., 147 S.W.3d 628, 630-31 (Tex.App.-San Antonio 2004, no pet.). This list, however, is not exhaustive nor must all these considerations be proved as a condition precedent to termination. Id. at 631. Additionally, any evidence in support of a finding that an appellant endangered the child in the manner described by sections 161.001(1)(D) and (E) of the Texas Family Code should be considered. See In re J.L., No. 04-0307, 2005 WL 785125, at *7 (Tex. Apr. 8, 2005).
Section 161.001(1)(D) and (E) provide:
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: (1) that the parent has: . . . (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or 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) (Vernon 2002).
In its termination order, the trial court found by clear and convincing evidence that both Rangel and Salazar had knowingly placed or allowed their children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children and that they had engaged in conduct or knowingly placed their children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. The trial court also found that termination was in the children's best interest.
The trial court also entered findings of facts and conclusions of law, several of which support termination being in the best interest of the children:
The fathers, Jose Salazar and Jesse Rangel, each have an extensive criminal history. Specifically, Jose Salazar has numerous arrests and is a convicted sex offender. Jose Salazar was sentenced to 10 years probation in the 227th District Court in Cause Number 2003-CR-1867 for Indecency with a Child as well as other drug and violent offenses. Likewise, Jesse Rangel has a felony criminal record and also has pending trials for Assault Bodily Injury and DWI. Furthermore, the court finds that each parent will, in all reasonable probability, present a clear and present danger to his or her children in the future.
A trial court may consider criminal history as a factor on the issue of endangerment. See Tex. Dep't of Human Serv. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987); In re J.M., No. 04-00-00607-CV, 2001 WL 649612, at *1 (Tex.App.-San Antonio June 13, 2001, no pet.) (not designated for publication).
Each parent has engaged in conduct that has endangered the physical and emotional well-being of his or her children. Furthermore, each parent has allowed their children to remain in conditions or surroundings that endangered his or her children. Specifically, the court finds that the children, the subject of this lawsuit, were exposed to physical neglect, sexual abuse, medical neglect and overall filth. These children have also been exposed to parents that neglect them and use illegal drugs.
The respondent mother and fathers left these children in unsafe conditions and have failed to make the necessary changes to provide these children with a safe and stable home environment.
The children, the subject of this lawsuit, have been repeatedly exposed to family violence.
At the hearing on the motion for new trial and statement of appellate points, Salazar and Rangel's attorney did not attack any of the above findings by the trial court or summarize for the trial court where evidence was missing or insufficient to sustain the above findings. Based on our review of the record, we conclude that the trial court did not abuse its discretion in determining the appellate points were frivolous.
Additionally, at the hearing on the motion for new trial and statement of appellate points, Salazar and Rangel's attorney argued that both clients had called her after the termination hearing and told her they had not appeared for trial because they had been informed by the case worker that they did not need to appear at the termination hearing:
Neither Salazar nor Rangel appeared at the hearing on the motion for new trial and statement of appellate points.
Attorney: [B]oth my clients had called me after the termination trial and told me that the case worker had called them and said that their rights had been terminated. They both told me that the week before on Friday they talked to her and she said, "You don't need to come to Court." That's why they didn't appear. So they were upset that they weren't here for their trial. And they were aware of the date that they were told by the worker.
Court: Where are they today?
Attorney: I don't know.
Court: All right.
Attorney: That's just what they told me.
In response, the State called the case worker, Miguelina S. Wooten, to the stand. She testified that she did not make any such statements to either Salazar or Rangel. As such, we find no abuse of discretion on behalf of the trial court.
We affirm the trial court's order.