Opinion
No. 04-04-00723-CV
Delivered and Filed: November 17, 2004.
Appeal from the 131st Judicial District Court, Bexar County, Texas, Trial Court No. 2003-PA-01345, Honorable John J. Specia, Jr., Judge Presiding.
Associate Judge Peter Sakai presided over the hearing and recommended that appellant's parental rights be terminated. The Honorable Judge John J. Specia, Jr. adopted the recommendation. Associate Judge Peter Sakai presided over the hearing on appellant's motion for new trial and statement of appellate points and entered an order finding that an appeal would be frivolous.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Paul W. GREEN, Justice.
MEMORANDUM OPINION
Fred Peña appeals the trial court's determination that an appeal of the order terminating his parental rights would be frivolous. The only issues Peña intended to present on appeal are whether the evidence is sufficient to support the termination and whether the trial court erred in not placing the child with Peña's sister. This court ordered the appeal to be considered on the record without briefing. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2002).
An appeal is frivolous when it lacks arguable basis either in law or in fact. De La Vega v. Taco Cabana, 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.). In determining whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a substantial question for appellate review. Id. A trial court's determination that an appeal is frivolous is reviewed under an abuse of discretion standard. Id.
At the hearing before the trial court, the Department of Family and Protective Services responded to the sufficiency challenge by reminding the court that while the case was pending, Peña violated his probation and received a five year prison sentence. M.R.R.'s attorney ad litem stated that Peña was with M.R.R.'s mother while she used drugs during her pregnancy and Peña had refused to participate in any services that were offered to him after his paternity of M.R.R. was established. The attorney ad litem asserted that Peña never supported M.R.R. and had no ability to support him financially or emotionally. With regard to M.R.R. being placed with Peña's sister, the Department asserted that evidence regarding placement was not relevant to Peña's termination, and the ad litem reminded the court that Peña's sister had filed a petition in intervention which the trial court struck. Peña did not introduce any evidence at the hearing to controvert these statements.
The Permanency Plan and Progress Report contained in the clerk's record reveals that M.R.R. tested positive for opiates at birth. When initially contacted by the Department, Peña initially indicated that he wanted to participate in services, and a service plan was discussed. Peña then stated that he wanted to relinquish his parental rights and allow M.R.R. to stay with his foster parent. At a subsequent hearing, Peña stated that he wanted M.R.R. placed with Peña's sister. Peña never participated in any services. At the time of the hearing, Peña was incarcerated for criminal activity, including possession of narcotics. The report concludes that Peña has not maintained a relationship with M.R.R. nor was Peña able to provide M.R.R. with a safe and stable environment.
Having reviewed the record, we conclude that the trial court did not abuse its discretion in determining that an appeal seeking to challenge the sufficiency of the evidence supporting termination or the court's decision to strike the intervention filed by Peña's sister would be frivolous. The trial court's order is affirmed.