Opinion
No. 04-03-00335-CV
Delivered and Filed: June 25, 2003
Appeal From the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-PA-00492, Honorable Pat Priest, Judge Presiding.
AFFIRMED
Sitting: Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Following the trial court's order terminating their parental rights to the children A.M.R., S.A.L., B.M.L., and R.J.L., appellants R.R. and R.L. (the fathers of the children) each filed a motion for new trial and statement of appellate points. The trial court denied the motions for new trial and ruled that appellants' points for appeal were frivolous. This court has considered the appeal on the record and without briefing. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2002).
BACKGROUND
In its termination order, the trial court found that each appellant had "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." In addition, the trial court found that R.L. "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children." In their appellate points, each appellant raised the legal and factual sufficiency of the evidence to support these findings as well as the legal and factual sufficiency of the evidence to support a finding that termination is in the best interest of the children.
DISCUSSION
Appellants challenge the trial court's decision that their appellate points are frivolous. See Tex. Fam. Code Ann. § 263.405(d)(3), (g) (Vernon 2002) (providing for review under Tex. Civ. Prac. Rem. Code Ann. § 13.003(b)). 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). "It is well established that 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). We review a trial court's findings under section 13.003(b) for abuse of discretion. Id.
At the new trial hearing, other than restating the points for appeal, counsel for appellants did not summarize for the trial court where evidence was missing or insufficient to sustain the trial court's findings. In contrast, counsel for TDPRS and the ad litem for the children reminded the court that both fathers had a long history of criminal behavior and imprisonment. Additionally, the trial court was reminded that R.L. not only left his children in the custody of their mother, whom he knew to be engaged in criminal behavior, he and the mother engaged in the criminal behavior which led to his current incarceration while the children were in their care.
These proceedings arise out of Cause No. 1389, styled Estate of Valgene William Lehmann, Jr., Deceased, pending in the County Court of Dimmit County, Texas, the Honorable Francisco Ponce presiding.
Based on our review of the record, we conclude the trial court did not abuse its discretion in determining the appeal points were frivolous. See Texas Dept. of Human Serv. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987) (court may consider arrests as factor on the issue of endangerment); Interest of J.M., 04-00-607-CV, 2001 WL 649612, at *1 (Tex.App.-San Antonio, June 13, 2001, no pet.) (not designated for publication) (same). We affirm the trial court's order.
1. Texas Department of Protective and Regulatory Services