Opinion
No. 04-05-00394-CV
Delivered and Filed: January 18, 2006.
Appeal from the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 04-0013-CV, Honorable Karin Bonicoro, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Jesus Juarez a/k/a Christian Acevedo appeals the trial court's determination that an appeal of the order terminating his parental rights would be frivolous. Acevedo intended to challenge Texas's jurisdiction to consider the termination petition and the court's failure to consider the paternal grandparents' willingness to take custody of the children. Acevedo further intended to assert that his trial counsel was deficient in failing to research the jurisdictional issue and failing to inform the court of the paternal grandparents' willingness to take custody. 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.
The record reflects that Texas was the "home state of the child[ren] on the date of the commencement of the [termination] proceeding." See Tex. Fam. Code Ann. § 152.201 (Vernon 2002) (setting forth jurisdictional requisite). Accordingly, the trial court did not abuse its discretion in determining that an appellate issue regarding Texas's jurisdiction or trial counsel's failure to research jurisdiction would be frivolous.
Juarez asserts that the children were in Texas illegally because he never consented to their move from Illinois. The record, however, reflects that the children were voluntarily relocated to Texas after the Illinois Department of Children and Family Services received a complaint regarding the children's mother and the father could not be located.
With regard to the paternal grandparents taking custody of the children, at the hearing on Juarez's statement of appellate points, the attorney for the Texas Department of Family and Protective Services reminded the court that at the time of trial, the Department had already conducted a home study on relatives in the State of Illinois at Juarez's request and placement was declined because the relatives did not pass the home study. The paternal grandparents did not express an interest in custody until they sent a letter to the Department dated March 14, 2005, which the Department received on March 28, 2005, barely one month before trial and over one year after the termination proceeding was filed. At that time, the grandparents were not available to be studied at home in Mexico for at least several weeks, if not months. The Department informed the court that one month is not sufficient time to obtain a home study from Mexico noting that a home study requested from Mexico in another case was pending in excess of five months. The Department informed the paternal grandparents that they could attend the trial to express their interest; however, they did not appear at trial. Although the paternal grandmother was mentioned in a response filed by Juarez in July of 2004, she was living with the relatives in Illinois at the time the home study declining placement with those relatives was conducted. Accordingly, the trial court did not abuse its discretion in determining that an appellate issue challenging the termination decision based on the paternal grandparents' willingness to assume custody or trial counsel's failure to further pursue the issue at trial would be frivolous.
We note that Juarez appears to have attached to his statement of appellate points an untranslated copy of a home study from Mexico dated September of 2005, almost five months after the date of trial.
The trial court's order is affirmed.