In re A.B.

• Decision Date: 09 October 2008
• Docket Number: No. 08-07-00307-CV.,08-07-00307-CV.
• Citation: 269 S.W.3d 120
• Parties: In the Interest of A.B., a Child.
• Court: Texas Court of Appeals

269 S.W.3d 120

In the Interest of A.B., a Child.

No. 08-07-00307-CV.

Court of Appeals of Texas, El Paso.

October 9, 2008.

Thomas E. Stanton, El Paso, for appellant.

Trevor Woodruff, Office of General Counsel, Austin, for appellee.

Celia Villasenor, El Paso, for Ad Litem.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

KENNETH R. CARR, Justice.

A.M.B., Appellant and biological mother of A.B., appeals the trial court's determination that her points of appeal of the termination of her parental rights are frivolous. We affirm in part and reverse in part the trial court's frivolousness finding. We affirm the judgment of the trial court with regard to its termination order.

I. BACKGROUND

A.B. was born on September 28, 2006. Four days later, the Texas Department of Family and Protective Services (the "Department") filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. The Department sought temporary orders appointing it the temporary sole managing conservator of A.B. The Department also sought termination of A.M.B.'s parental rights, should reunification of A.B. with A.M.B. fail, because, according to the Department, A.M.B. knowingly placed the child, or knowingly allowed her to remain, in conditions or surroundings that endangered A.B.'s physical and emotional well-being and engaged in conduct, or knowingly placed her with persons who engaged in conduct, that endangered her physical or emotional well-being.

On September 4, 2007, the trial court held a final hearing on the issue of termination of the parent-child relationship. At the hearing, the Department requested leave to proceed on Texas Family Code subsections 161.001(1)(M) and (N), instead of subsections 161.001(1)(D) and (E), as originally pled.¹ Following the hearing, the trial court entered an order of termination. Applying the "clear and convincing evidence" standard, the trial court found that the termination of the parent-child relationship was in the best interest of A.B. The trial court also found that A.M.B. had had her parent-child relationship terminated with respect to another child, based on a finding that A.M.B.'s conduct at that time had been in violation of subsections 161.001(1)(D) or (E) of the Texas Family Code. In addition, the trial court found that A.M.B. constructively abandoned A.B. while she was in the permanent or temporary managing conservatorship of the Department for not less than six months and that: (1) the Department had made reasonable efforts to return A.B. to A.M.B.; (2) A.M.B. had not regularly visited or maintained significant contact with her; and (3) A.M.B. had demonstrated an inability to provide A.B. with a safe environment.

Thereafter, A.M.B. filed a Notice of Points on Appeal of Termination of Parental Rights in which she stated grounds of appeal and requested that the trial court find that the grounds were not frivolous. In her first point, A.M.B. argued that, in the case of a parent with a cognitive disorder, termination of the parent-child relationship on the basis of failure to comply with a court order or tasks assigned by the Department should require a showing that the orders and requirements "were communicated in a manner developmentally appropriate and capable of being understood by the parent." A.M.B.'s second and third points were that the evidence was legally and factually insufficient to show that termination was in the best interest of A.B., because the Department made no showing that the tasks required of A.M.B. were communicated in an effective manner, considering the parent's cognitive disorder. A.M.B.'s fourth point was that, where the grounds for termination are that the parent exposed the child to abuse based on neglect and the parent has a cognitive disorder, the party seeking termination must show that it communicated with the parent in an effective, developmentally-appropriate manner and that the parent was unwilling or unable to perform. A.M.B.'s fifth point was that there was factually insufficient evidence to terminate the relationship based on neglect of the child. A.M.B.'s sixth point was that there was legally insufficient evidence to terminate the relationship, because there was no evidence of harm to A.B. at the time she was removed from A.M.B. at the hospital.

On October 15, 2007, the trial court held a hearing on A.M.B.'s points of appeal, pursuant to section 263.405(g) of the Texas Family Code. The Department argued that termination was based on the grounds that A.M.B.'s parent-child relationship with her other two children had been previously terminated and that she had constructively abandoned A.B. Accordingly, the Department argued that the appeal was frivolous, because the points of appeal addressed grounds for termination that had not been relied upon by the trial court.² The Department entered the termination order concerning A.B. and A.M.B. as an exhibit. The trial court held that A.M.B.'s grounds for appeal were frivolous.

II. DISCUSSION

A. Review of Frivolousness Determinations

Section 263.405 of the Family Code provides the procedure for appeal of an order that terminates parental rights. A party wishing to appeal a final order must file points of appeal with the trial court. See Tex. Fam.Code Ann. § 263.405(b). The trial court must hold a hearing and determine whether the appeal is frivolous,³ as provided in the Civil Practice and Remedies Code, which states that "[i]n determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review." Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b).

We review a trial court's finding that a party's points of appeal of a final order are 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.). A party's appeal is initially limited to review of the trial court's frivolousness finding. See In re K.D., 202 S.W.3d 860, 865 (Tex.App.-Fort Worth 2006, no pet.) (stating that section 263.405(g) limits the scope of appellate review to the trial court's determination that the appeal is frivolous). In other words, before we may consider the substantive merits of an appeal from an order terminating parental rights in which, as here, a frivolousness finding was made, we must first determine whether the trial court properly found the appeal to be frivolous. Lumpkin v. Department of Family & Protective Servs., 260 S.W.3d 524 (Tex.App.-Houston [1st Dist.] 2008, no pet.). Moreover, an "appellate court may not consider 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. ..." Tex. Fam.Code Ann. § 263.405(i).

B. A.M.B.'s Arguments on Appeal

A.M.B. abandons some of the grounds for appeal offered in the trial court and seeks to add new grounds. A.M.B. waives appeal of her fourth, fifth, and sixth trial-court points, and purports to pursue only her first three points before this Court. A.M.B. first argues that the Department, in order to demonstrate that it has made reasonable efforts to return the child to the mother, pursuant to section 161.001(1)(N) of the Texas Family Code, should be required to prove that its efforts to do so were "communicated in a developmentally appropriate manner where a parent is known to possess cognitive deficits." A.M.B.'s second issue on appeal is that, because the Department possessed information that A.M.B. had "cognitive deficits," the Department should have been required to demonstrate that "reasonable accommodations for the mother's cognitive deficits had been attempted and were unsuccessful in preserving the parent-child relationship." Finally, A.M.B. argues that the evidence was factually insufficient to support termination on the grounds of best interest of the child, because A.M.B. possesses "cognitive deficits" and there was no evidence that she had been provided services in a "developmentally appropriate manner."

Despite A.M.B.'s apparent claim that the first three issues which she raised before the trial court and the three issues posed to this Court are the same, it appears that only one of the issues is similar, to wit, whether the evidence was factually sufficient to support a finding that termination is in the child's best interest, where the mother is cognitively impaired. We may not consider any issues that were not specifically presented to the trial court. See Tex. Fam.Code Ann. § 263.405(i); In re C.B.M., 225 S.W.3d 703, 705-06 (Tex.App.-El Paso 2006, no pet.). We therefore consider only the factual-sufficiency issue in this proceeding.

C. Frivolousness of A.M.B.'s Factual-Sufficiency Issue

With regard to this issue, counsel for A.M.B. made the argument at the hearing to determine frivolousness that there were allegations that A.M.B. suffered from a cognitive disorder and that, with regard to the finding of best interest, he wished to have the appellate court determine "who has the burden of dealing with that." The Department did not address the evidentiary sufficiency of best interest, but instead argued that A.M.B.'s points concerning the service plan were frivolous, because failure to comply with the service plan was not the basis for the termination. After hearing the arguments of A.M.B. and the Department and receiving the Department's evidence, the trial court made the following statement concerning the sufficiency of evidence as to best interest:

The grounds utilized in [the termination] suit are not grounds that make reference to the service plan. In the other ground, though, the best interest ground, that is part of the information that comes in for the Court to consider, ultimately, whether the best interest are [sic] served by granting the termination. And in that respect, the service plan does come into play.

The issue has been raised whether or not the...