Opinion
No. 04-05-00620-CV
Delivered and Filed: December 7, 2005.
Appeal from the 73rd Judicial District Court, Bexar County, Texas, Trial Court No. 2004-PA-00095, Honorable Andy Mireles, Judge Presiding.
Affirmed.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
After the trial court terminated appellant's parental rights to his minor child, appellant moved for a new trial and filed a statement of his appellate points. The trial court found all the appellate points are frivolous. See Tex. Fam. Code Ann. § 263.405(d)(3) (Vernon 2002). We agree and therefore affirm the trial court's order.
The trial court entered judgment terminating appellant's parental rights based on the jury's findings, one of which stated that "[appellant] failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the temporary managing conservatorship of the Department for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child." At trial, the Child Protective and Regulatory Services representative testified appellant expressed an unwillingness to comply with the terms of the Family Service Plan. Appellant admitted he refused to comply with any of the plan's requirements because, according to him, the child was never taken from him and he had too many problems, like drugs and "bad people," to deal with while living in San Antonio. Appellant's admission that he refused to comply with the provisions of the Family Service Plan constitutes legally and factually sufficient evidence to support the court's finding.
In the motion for new trial, appellant's counsel challenged the sufficiency of the evidence underlying the trial court's finding that termination was in the child's best interest, but counsel did not challenge the other two statutory grounds upon which the trial court based its termination order. Instead, counsel challenged the sufficiency of the evidence to support findings that were never made by the trial court. For example, counsel challenged the finding that appellant "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children." Neither this finding, nor any of the other findings challenged by counsel, formed the basis of the termination order. We note that effective September 1, 2005, the Legislature amended the Family Code to provide as follows: "The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal." Tex. Fam. Code Ann. § 263.405(i). However, because this appeal was filed before the effective date of the amendment, we address whether the evidence is sufficient to support the grounds actually specified by the court in its order. See In re S.P., 168 S.W.3d 197, 201-02 (Tex.App.-Dallas 2005, no pet.); In re W.J.H., 111 S.W.3d 707, 712-13 (Tex.App.-Fort Worth 2003, pet. denied).
The trial court also found that termination of appellant's parental rights was in the best interest of the child. At trial, Wayne Whitaker, the child's foster-father, testified that appellant has never visited with his son. According to Whitaker, appellant's refusal to comply with the Family Service Plan was based on appellant's opinion that it was not his fault his son "was in the system." The child's mother, who has maintained a close relationship with her son and the foster-parents, testified she wants the foster-parents to adopt her son. Whitaker said he and his wife hope to adopt the child and they want the adoption to be open so that the child's mother will remain a part of his life. Appellant agreed he was not asking that the child be returned to him. Instead, he did not want his rights terminated because he wanted the child placed with a member of his own family rather than with the foster-parents. This evidence constitutes legally and factually sufficient evidence to support the trial court's finding that termination is in the child's best interest.
CONCLUSION
"Only one predicate finding under [Family Code] section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Here, the evidence is legally and factually sufficient to support the trial court's finding of one of the statutory grounds for termination and its finding that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002) (statutory grounds for termination). Therefore, we hold the trial court did not abuse its discretion in finding that appellant's appellate issues are frivolous, i.e., fail to "present a substantial question for appellate review." See Tex. Civ. Prac. Rem. Code Ann. § 13.003(b) (Vernon 2002); see also De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.) (en banc) (holding that appeal is frivolous if it lacks an arguable basis in law or in fact). We therefore affirm the trial court's order.