Opinion
No. 14-08-00471-CV
Opinion filed January 15, 2009.
On Appeal from the 313th District Court Harris County, Texas, Trial Court Cause No. 2006-11025J.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
This appeal is from a judgment signed May 20, 2008, terminating the parental rights of Joe Robert Becerra to his daughter, A.J. Appointed trial counsel timely filed a Motion for New Trial and Statement of Appellate Points. At the hearing under section 263.405(d) of the Texas Family Code, the trial court found that Becerra's appeal is frivolous. See Tex. Fam. Code § 263.405(d). The reporter's record from this hearing and the clerk's record have been filed. Under section 263.405(g), Becerra has appealed the trial court's finding that his appeal of the termination judgment is frivolous. See Tex. Fam. Code § 263.405(g). Becerra has requested this court to rule on his appeal of the trial court's frivolousness finding and to find section 263.405(d) of the Texas Family Code unconstitutional. We deny Becerra's motion and affirm the trial court's judgment.
The trial court terminated Becerra's rights based upon constructive abandonment. See Tex. Fam. Code § 161.001(1)(N). In his Motion for New Trial and Statement of Appellate Points, Becerra identified the following issues: (1) the trial court abused its discretion in denying his oral motion for continuance until his criminal case, pending since June 2005, concluded; (2) mediation was not ordered prior to trial; (3) Becerra's paternity was established; (4) legal and factual insufficiency of the evidence supporting the trial court's finding that termination is in the best interest of the child; and (5) proceeding to trial deprived Becerra of his federal and state constitutional rights to due process and equal protection.
The trial court conducted the required hearing. See Tex. Fam. Code § 263.405(d). The Department argued no substantial issues were raised by Becerra's Motion for New Trial and Statement of Appellate Points. The trial court denied the motion for new trial and found the appeal frivolous.
Though Becerra has requested that this court rule on his appeal of the trial court's frivolousness finding, Becerra has not presented this court with any argument as to how any of the issues raised in his Statement of Appellant Points present a substantial question for review. Becerra has not demonstrated that the trial court abused its discretion in determining the appeal is frivolous. See In the Interest of A.F., 259 S.W.3d 303, 306-07 (Tex.App. B Beaumont 2008, no pet.).
Becerra's motion claims section 263.405(d) is unconstitutional as applied in that it denies Becerra his right to appeal. A finding of frivolousness under section 263.405(d)(3) denies an appellant a reporter's record of the trial without costs, not the right to appeal. See Tex. Fam. Code § 263.405(d)(3), (f), and Tex. Civ. Prac. Rem. Code § 13.002(a). The only authority Becerra cites is the plurality opinion in Troxel v. Granville, 500 U.S. 57 (2000) (plurality op.), for the proposition "the parent-child relationship is one of a constitutional magnitude." Becerra makes no argument supporting his claim. Moreover, this issue was not raised in Becerra's Motion for New Trial and Statement of Appellate Points and is therefore precluded from review. See Tex. Fam. Code § 263.405(i); see also In re S.K.A., 236 S.W.3d 875 (Tex.App. B Texarkana 2007) pet. denied, 260 S.W.3d 463 (Tex. 2008). Accordingly, we deny Becerra's motion to find the statute unconstitutional as applied to Becerra. .
For these reasons, Becerra has not shown that the trial court erred in ruling that his appeal is frivolous. Accordingly, we deny Becerra's motion and affirm the trial court's judgment.