Opinion
No. 04-07-00292-CV
Delivered and Filed: November 28, 2007.
Appeal from the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2006-PA-00850, Honorable Joe Frazier Brown, Jr., Judge Presiding.
AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This appeal arises from the termination of Jennifer Rodriguez's parental rights to four of her children. Rodriguez appeals the trial court's order finding that the appellate points raised in her statement of appellate points were frivolous. See Tex. Fam. Code Ann. 263.403(d)(3) (Vernon Supp. 2007). We affirm the trial court's order because Rodriguez failed to specifically present several of her appellate issues in her statement of appellate points and because the trial court did not abuse its discretion in finding the issue that was specifically presented to be frivolous.
In an appeal from an order terminating parental rights involving the Department of Family and Protective Services, this court may consider only those appellate issues that were specifically presented to the trial court in a timely filed statement of appellate points. Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2007). In this case, Rodriguez raises issues relating to ineffective assistance of counsel and the trial court's failure to grant her request for a continuance. Neither of those issues, however, was specifically presented in her statement of appellate points; therefore, we are barred from considering those issues on appeal. See id.; see also In re R.M., No. 04-07-00048-CV, 2007 WL 1988149, at *1-2 (Tex.App.-San Antonio July 11, 2007, pet. denied) (holding appellate court cannot consider ineffective assistance of counsel issue that was not raised in statement of appellate points).
Rodriguez also complains that the evidence is factually insufficient to establish that her youngest child, N.A.O.O., had been in the permanent or temporary managing conservatorship of the Department not less than nine months. The trial court terminated Rodriguez's parental rights based on its findings that termination was in the children's best interest and that Rodriguez "failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children." See Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2007). To terminate Rodriguez's parental rights under section 161.001(1)(O), the Department was required to establish that the child in question had been in the Department's conservatorship for not less than nine months. See id. N.A.O.O. was only six months old at the time the termination order was signed.
Notwithstanding this failure of proof, however, the only issue raised with regard to factual sufficiency in Rodriguez's statement of appellate points is the following:
2. The evidence is factually insufficient to support the court's finding that Respondent 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 children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children. Namely that Respondent failed to complete her Plan of Service set forth by the Department of Family and Protective Services.
(emphasis added). Although this issue specifically challenges the factual sufficiency of the evidence to support the trial court's finding that Rodriguez failed to comply with the provisions of a court order, see In re J.A.B., No. 2-06-404-CV, 2007 WL 3037720, at *2 (Tex.App.-Fort Worth Oct. 18, 2007, no pet. h.), it does not specifically challenge the factual sufficiency of the evidence with regard to the length of time the children had been in the Department's managing conservatorship. See In re E.J.W., No. 04-06-00219-CV, 2006 WL 2871570, at *1 (Tex.App.-San Antonio Oct. 11, 2006, no pet.). Accordingly, we are barred from considering that complaint on appeal.
After applying section 263.405(i) to the issues raised on appeal, the only issue this court may consider is whether the trial court erred in determining that Rodriguez's challenge to the factual sufficiency of the evidence establishing that she failed to comply with the provisions of a court order would be frivolous. We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard. In re M.N.V., 216 S.W.3d 833, 834 (Tex.App.-San Antonio 2006, no pet.).
In a factual sufficiency review in the context of an order terminating parental rights, "a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The inquiry must be whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
In this case, the evidence established that while Rodriguez was somewhat engaged in her parenting classes at first, she subsequently decided to move to Houston and had not continued to attend classes. Rodriguez decided to move to Houston despite the Department's caution that the move could cause a set-back in the service plan. Rodriguez chose to visit the children only once a month for two hours; however, she missed at least one appointment and was sometimes as late as one hour and fifteen minutes. Rodriguez did not make any calls between visits to check on the children's welfare. Although A.R. was deaf, Rodriguez failed to attend classes to learn sign language. Rodriguez testified that she was unable to find a class that she could afford; however, the Department presented evidence of the various opportunities available to her that she did not pursue. The only evidence Rodriguez relied on to show that she had maintained stable employment was a handwritten letter that she had been cleaning houses during the two weeks prior to trial, and her testimony that she had worked at a Jason's Deli for two months while she was living in Houston. Rodriguez had not paid any of the court-ordered child support. Although Rodriguez underwent the initial psychological evaluation, she failed to follow up with the recommended counseling. Similarly, Rodriguez did undergo the court-ordered drug assessment but failed to follow up with the recommended counseling. Rodriguez failed to attend the court-ordered homemaking course. Although she started the family violence course, she dropped out. Finally, although ordered to obtain stable and consistent housing, Rodriguez had been moving from place to place. Rodriguez testified at trial that she had recently rented an apartment; however, she did not provide a copy of her lease. Based on the evidence presented at trial, the trial court did not abuse its discretion in finding that Rodriguez's factual sufficiency complaint would be frivolous.
The trial court's judgment is affirmed.