In re M.R.J.M.

• Decision Date: 13 April 2006
• Docket Number: No. 2-05-074-CV.,No. 2-05-392-CV.,2-05-392-CV.,2-05-074-CV.
• Citation: 193 S.W.3d 670
• Parties: In the Interest of M.R.J.M., A Child. In the Interest of T.C. and G.C., Children.
• Court: Texas Court of Appeals

193 S.W.3d 670

In the Interest of M.R.J.M., A Child.

In the Interest of T.C. and G.C., Children.

No. 2-05-392-CV.

No. 2-05-074-CV.

Court of Appeals of Texas, Fort Worth.

April 13, 2006.

Swanda & Swanda, P.C., Dean M. Swanda, Arlington, for Appellant in No. 2-05-392-CV.

Fred M. Barker, Asst. County Atty., Parker County Texas, Weatherford, for Appellee in No. 2-05-392-CV.

Holmes, Woods, Diggs & Eames, Tiffany L. Haertling, Philip L. Reynolds, Denton, for Appellant in No. 2-05-074-CV.

Bruce Isaacks, Crim. Dist. Atty., Kathleen A. Walsh, Vicki Foster, Asst. Dist. Attys., Denton, for Appellee in No. 2-05-074-CV.

Before the court en banc.

OPINION AND ORDER

JOHN CAYCE, Chief Justice.

In separate appeals, Michael Glenn M., Timothy Paul C., and Trina Kay C. (collectively, appellants) appeal the termination of their parental rights to their children. After appellants filed their motions for new trial, statements of points on appeal, and notices of appeal, the respective trial courts held the hearings required by section 263.405(d) of the family code.¹ Each of the appellants' statements of points challenged the factual sufficiency of the evidence to support the juries' findings that one or more grounds for termination exist and that termination is in the best interest of the children.² Both trial courts denied the appellants' motions for new trial found that appellants are indigent, and determined that an appeal of the issues raised in their statements of points would be frivolous.³ After these appeals were filed, we consolidated them for the limited purpose of determining whether we have adequate records for reviewing the trial courts' frivolousness determinations on appellants' factual sufficiency complaints.

Appellants assert, among other complaints, that the provision in section 263.405(g) requiring an indigent party to appeal a trial court's frivolousness determination with only the record of the frivolousness hearing violates the separation of powers clause of the Texas Constitution,⁴ because it interferes with the power courts of appeals are assigned under article V, section 6(a) of the constitution to decide factual sufficiency complaints.⁵ For the reasons discussed below, we hold that the statute is not unconstitutional under the separation of powers clause of the constitution.

Under section 263.405(d), if an indigent parent timely files a statement of points or issues the parent intends to raise on appeal, the trial court must hold a hearing within thirty days after a termination order is signed to determine (1) whether a new trial should be granted;⁶ (2) whether the parent's claim of indigence should be sustained; and (3) whether the appeal is frivolous as provided by section 13.003 of the civil practice and remedies code because it does not present "a substantial question for appellate review."⁷ If the trial court determines that the appeal is frivolous, the indigent parent is not entitled to obtain a free record on appeal.⁸ The parent may, however, appeal the trial court's frivolousness determination by filing with the appellate court the record of the frivolousness hearing, which shall be provided without advance payment.⁹ The appellate court is then required to review the record of the hearing and the appellate briefs, if any, without the benefit of oral argument, and render "appropriate orders."¹⁰ We review a trial court's determination that an appeal is frivolous under an abuse of discretion standard.¹¹

Article V, section 6(a) of the Texas Constitution provides that "the decision of [the] courts [of appeals] shall be conclusive on all questions of fact brought before them on appeal or error."¹² This "factual conclusivity clause" has remained constant in our state constitution since courts of appeals were granted appellate jurisdiction in 1891.¹³ Under it, we have the duty to make the final, "conclusive" determination whether fact findings in cases over which we have appellate jurisdiction are supported by all of the evidence.¹⁴

In the cases before us, appellants have complained that, in light of all the evidence, they should be granted new trials because the evidence is factually insufficient to support the juries' findings that appellants' parental rights should be terminated. The trial courts determined that an appeal raising these complaints would be frivolous. Having carefully reviewed the records from the trial courts' frivolousness hearings, however, we cannot determine whether or not the trial courts acted within their discretion in making this determination. To decide whether a trial court has abused its discretion in determining that the evidence supporting a termination order is factually sufficient, and, therefore, that an appeal complaining that the evidence is factually insufficient is frivolous, we engage in a two-pronged inquiry: First, we decide whether the trial court had sufficient information upon which to exercise its discretion, and, second, we determine whether the trial court erred in the application of its discretion.¹⁵ The factual sufficiency review comes into play with regard to the first question.¹⁶

In conducting a factual sufficiency review, "we must weigh all of the evidence in the record."¹⁷ Thus, to decide whether a substantial question exists regarding whether the juries' termination findings in the cases before us are supported by factually sufficient evidence, and, therefore, whether the trial courts abused their discretion in determining that appellants' factual insufficiency complaints are frivolous, we need a record of all of the evidence in both cases.¹⁸ Accordingly, we hold that an "appropriate" order under section 263.405(g) is to order that the reporters' records of all of the evidence admitted in both termination cases be prepared and filed in these appeals, without advance payment by appellants.¹⁹

We believe that this result gives effect to the Legislature's intent as evidenced by the plain language of section 263.405.²⁰ The express purpose of the statute is to eliminate frivolous appeals in termination cases, reduce the costs associated with such appeals, and dispose of the appeals "with the least possible delay."²¹ The statute is not intended to bar appeals that raise meritorious complaints, nor is it intended to prevent appellate courts from conducting meaningful review of such complaints. Rather, section 263.405(g) imposes upon appellate courts a duty to issue orders that are "appropriate," which we presume includes orders for a sufficiently complete record of the evidence to review an appellant's challenge to a trial court's determination that a factual sufficiency complaint is frivolous.²²

Moreover, we believe our interpretation of section 263.405(g) avoids an interpretation that would render the statute unconstitutional. Statutes are presumed to be constitutional, and we are required to construe them in a manner that renders them so.²³

Under the Texas Constitution, the courts of appeals have been granted the power to conduct conclusive appellate review of all factual sufficiency questions that are properly presented on appeal.²⁴ In cases where an indigent appellant timely files a statement of points complaining that the evidence is factually insufficient to support a termination finding, and challenges on appeal the trial court's determination that an appeal raising such a complaint is frivolous, this constitutionally assigned power requires us to review all of the evidence to determine whether a substantial question exists as to whether the termination finding is supported by factually sufficient evidence.²⁵ The legislature cannot take away this power or interfere with our exercise of it.²⁶ Any attempt to do so would be null and void.²⁷

Because the "appropriate orders" language of section 263.405(g) recognizes our authority to order the preparation of a record of all of the evidence in a termination case when necessary to review a trial court's determination that an appeal raising a factual sufficiency complaint is frivolous, the statute does not interfere with our factual sufficiency review power. We, therefore, hold that the statute is not unconstitutional under the separation of powers clause of the Texas Constitution.

For the foregoing reasons, it is ORDERED that the court reporters of the respective trial courts shall, on or before sixty (60) days from the date of this opinion and order, and without cost to the appellants, prepare and file reporter's records containing all of the evidence admitted at each of the termination trials.²⁸ Upon receiving these reporter's records, we will unconsolidate the appeals and address the merits of appellants' remaining complaints.²⁹

1. See generally TEX. FAM.CODE ANN. § 263.405(b), (d)-(g) (Vernon Supp.2005) (providing procedures for determining indigency and right to obtain free record for appeal of judgment terminating parental rights).

2. Appellants also raised other issues. Each of the appellants complains that the trial courts erred in determining that their appeals are frivolous. In addition, Michael Glenn M. complains about voir dire and the jury charge and argues that family code section 263.405 violates the separation of powers doctrine and due process; Trina Kay C. complains about the admission of evidence and that section 263.405 and civil practice and remedies code section 13.003 violate state and federal due process and equal protection; and Timothy Paul C. challenges the legal sufficiency of the evidence.

3. The trial court did not rule on Trina Kay C.'s motion for new trial, but did find that her appeal is frivolous.

4. Article II, section 1 governs separation of powers and provides as follows:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistry, . . . and no person, or collection of persons, being of one of these departments, shall exercise any power properly...