Opinion
No. 04-05-00292-CV
Delivered and Filed: July 20, 2005.
Appeal From the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-PA-00814, Honorable Andy Mireles, Judge Presiding.
The Honorable Andy Mireles approved the recommendation of Associate Judge Richard Garcia who presided over the hearing on appellant's motion for new trial and statement of appellate points.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Mark Nicholson appeals the trial court's determination that an appeal of the order terminating his parental rights would be frivolous. Nicholson intended to challenge the sufficiency of the evidence to support the grounds for termination and the finding that termination was in the best interest of the child. 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 on Nicholson's motion for new trial and statement of appellate points, the attorney for the Texas Department of Family and Protective Services reminded the court that Nicholson's own testimony established that he did not complete his service plan and that he was not stable at the time and was unable to provide C.R.M.M.N. with the environment that she needs. The attorney ad litem for C.R.M.M.N. also reminded the court that Nicholson failed to comply with 99% of the service plan and that he failed to show that he could care for the child. Finally, the attorney for the Department reminded the court that the case went to trial three weeks from the one year deadline which gave Nicholson ample time to complete the service plan and that there was no good cause to extend the one year deadline.
Having reviewed the record, we conclude that the trial court did not abuse its discretion in determining that an appeal of the order terminating Nicholson's parental rights on sufficiency grounds would be frivolous. The trial court's order is affirmed.