Opinion
No. 04-04-00220-CV
Delivered and Filed: July 21, 2004.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-PA-00841, Honorable David Peeples, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Paul W. GREEN, Justice.
MEMORANDUM OPINION
Lakeysha Wilson ("Wilson") appeals the trial court's determination that an appeal of the order terminating her parental rights would be frivolous. The sole issue Wilson 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. At the request of Wilson's appointed counsel, this court has considered the appeal on the record and without briefing. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2002).
In determining whether an appeal is frivolous, a trial judge may consider whether the appellant has presented a substantial question for appellate review. In re A.M.R., No. 04-03-00335-CV, 2003 WL 21467518 (Tex. App.-San Antonio June 25, 2003, no pet.) (not designated for publication). An appeal is frivolous if it lacks an arguable basis in law or in fact. Id. We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. Id.
At the hearing before the trial court, other than asserting that the evidence did not rise to the clear and convincing level, Wilson failed to specify the evidence from the record that was contrary to the trial court's finding. In contrast, the attorney for the Texas Department of Protective and Regulatory Services ("DPRS") noted that Wilson had failed to comply with the court-ordered service plan. The DPRS attorney also noted that during trial, Wilson admitted, "I was doing my children wrong." The last Progress Report and Permanency Plan contained in the record dated January 28, 2004, stated that one of Wilson's children was born prematurely. During the time the child was in the hospital, Wilson visited infrequently and did not appear to bond with the child. Wilson also tested positive for marijuana use. When the child was approximately five months old, he was admitted to the hospital for injuries consistent with severe violent shaking. Wilson's whereabouts at the time of the report were unknown. Wilson had not been in contact with DPRS since May of 2003, and she was not engaged in services.
Although we refer to the Department as it is defined by statute, see Tex. Fam. Code Ann. § 263.001(a)(1) (Vernon 2002), we note that as of February 1, 2004, the Department changed its name to Department of Family and Protective Services.
Having reviewed the record, we conclude that the trial court did not abuse its discretion in determining that an appeal of the underlying termination order on sufficiency grounds would be frivolous.