Opinion
No. 04-06-00692-CV
Delivered and Filed: May 2, 2007.
Appeal from the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2005-PA-02104, Honorable Michael P. Peden, Judge Presiding.
ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This is an appeal from the trial court's order terminating Benjamin and Flor Duran's parental rights to their four daughters (hereinafter "the children"). Following a non-jury trial, Benjamin and Flor filed separate motions for new trial and statements of appellate points. The trial court subsequently denied both of their motions for new trial and found their appellate points to be frivolous. See Tex. Fam. Code. Ann. § 263.405(d)(3) (Vernon Supp. 2006-2007). We affirm.
WAIVER
Both Benjamin and Flor complain the trial court erred in taking judicial notice of the family service plan because it was not authenticated or admitted into evidence. However, this issue was not specifically presented to the trial court in either Benjamin or Flor's motions for new trial or their statements of appellate points in accordance with the Family Code. See Tex. Fam. Code. Ann. § 263.405( i) (Vernon Supp. 2006-2007). Section 263.405(i) bars this court from considering "any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Id. Therefore, we overrule Flor's sole issue on appeal and Benjamin's complaint regarding this issue.
FRIVOLOUS APPEAL
Benjamin also complains the trial court erred in finding his appellate points frivolous. We review a trial court's determination that an appeal would be frivolous for an abuse of discretion. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.) (en banc); see also In re K.D., 202 S.W.3d 860, 866 (Tex.App. — Fort Worth 2006, no pet.). In making a determination as to whether an appeal is frivolous, the trial court may consider whether the appellant has presented "a substantial question for appellate review." See Tex. Civ. Prac. Rem. Code Ann. § 13.003(b) (Vernon 2002); see also De La Vega, 974 S.W.2d at 154 (holding that an appeal is frivolous if it lacks an arguable basis in law or in fact). In order for a trial court to terminate parental rights, the court must find by clear and convincing evidence that the parent (1) has committed an act prohibited by section 161.001(1) of the Texas Family Code, and (2) the termination is in the best interest of the children. Tex. Fam. Code. Ann. § 161.001(1)-(2) (Vernon Supp. 2006-2007). The trial court terminated Benjamin and Flor's parental rights based on (1) their failure "to comply with the provisions of a court order that specifically established the actions necessary for the father [and mother] to obtain the return of the children," and (2) because the termination was in the best interest of the children. See id.
1. Failure to Comply with the Family Service Plan
Benjamin complains the trial court erred in finding the appellate points frivolous because the evidence is factually insufficient to support the trial court's finding that he failed to comply with the family service plan in violation of section 161.001(1). The family service plan was implemented by the trial court in order to establish the actions necessary for both Benjamin and Flor to obtain the return of their children. At trial, Benjamin admitted the family service plan required him to remain drug free and to attend alcoholics anonymous classes. The caseworker testified that Benjamin tested positive for drugs on December 5, 2005, February 24, 2006, March 7, 2006, and he refused to submit to a drug test on September 21, 2006, only days before the trial. Also, Benjamin failed to provide proof he attended Alcoholics Anonymous classes after June of 2006. The trial court conducted three hearings during the pendency of the case and each time found Benjamin failed to demonstrate compliance with the plan. In addition, Benjamin's testimony at trial confirmed he violated the family service plan. Accordingly, we find the evidence factually sufficient to support the trial court's finding that Benjamin violated the family service plan.
At trial, Benjamin testified he only failed to provide proof of his attendance at AA classes after June 2006; however, the caseworker testified that Benjamin failed to provide proof of his attendance after April 28, 2006.
2. Best Interest of the Children
Benjamin also complains the trial court erred in finding his appellate points frivolous because the evidence is factually insufficient to support the trial court's finding that termination is in the best interest of the children. The evidence at trial showed Benjamin failed to remain drug free and the children's home was unstable. The caseworker testified the children expressed a desire to be adopted and the attorney for the children testified the children had bonded with their current foster parents and were hoping to be adopted by them. Both the caseworker and the counselor for the children testified it was in the best interest of the children for the parent-child relationship to be terminated. Therefore, we believe the evidence is factually sufficient to support the trial court's finding that termination is in the children's best interest. Because the evidence is factually sufficient to support the trial court's finding on the statutory grounds for termination and its finding that termination is in the best interest of the children, we conclude the trial court did not err in finding that Benjamin presented no substantial issue for review and that the appeal is frivolous.
CONCLUSION
Accordingly, we affirm the trial court's orders.