In re S.T.

• Decision Date: 28 May 2008
• Docket Number: No. 10-07-00306-CV.,10-07-00306-CV.
• Citation: 263 S.W.3d 394
• Parties: In the Interest of S.T., a Child.
• Court: Texas Court of Appeals

263 S.W.3d 394

In the Interest of S.T., a Child.

No. 10-07-00306-CV.

Court of Appeals of Texas, Waco.

May 28, 2008.

Donald Taylor, Navasota, pro se.

Bill R. Turner, Brazos County Dist. Atty., Bryan, for respondent.

Jami G. Lowry, Franklin, for ad litem.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Donald Taylor appeals from a decree terminating his parental rights with respect to his daughter S.T.¹ In a post-judgment hearing under section 263.405(g) of the Family Code, the trial court determined that Donald's appeal is frivolous, and Donald challenges that determination. See TEX. FAM.CODE ANN. § 263.405(g) (Vernon Supp.2007); In re S.T., 242 S.W.3d 923, 926 (Tex.App.-Waco 2008, order) (per curiam); In re K.D., 202 S.W.3d 860, 866 (Tex.App.-Fort Worth 2006, no pet.). We will affirm the court's determination that the appeal is frivolous and the court's decree terminating Donald's parental rights.

Procedural Background

Following a bench trial, the court rendered judgment terminating the parent-child relationship between Donald and S.T. The decree recites affirmative findings on four predicate grounds for termination: (1) knowingly placing or allowing the child to remain in dangerous conditions or surroundings; (2) engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangered the child; (3) failing to support the child in accordance with his ability; and (4) failing to comply with the provisions of a court order establishing the actions necessary for the return of the child. See TEX. FAM. CODE ANN. § 161.001(D), (E), (F), (O) (Vernon Supp.2007).

The court's "Amended Findings of Fact and Conclusions of Law" largely correspond to the findings in the decree except that there is no express finding on the fourth predicate ground recited in the decree. Because of this conflict, the findings control over the judgment. See TEX.R. CIV. P. 299a; In re R.J.P., 179 S.W.3d 181, 184 n. 3 (Tex.App.-Houston [14th Dist.] 2005, no pet.); In re E.A.C., 162 S.W.3d 438, 442 (Tex.App.-Dallas 2005, no pet.); Capital Senior Mgmt. 1, Inc. v. Tex. Dep't of Human Servs., 132 S.W.3d 71, 74 n. 3 (Tex.App.-Austin 2004, pet. denied).

And because the amended findings are more specific, they supersede the "Findings of Fact and Conclusions of Law and Rulings" which the court had signed two weeks before it signed the decree.² See Barclay v. C.C. Pitts Sand & Gravel Co., 387 S.W.2d 644, 647 (Tex.1965); Isern v. Watson, 942 S.W.2d 186, 191 (Tex.App.-Beaumont 1997, pet. denied); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 960 (Tex.App.-Beaumont 1994, writ denied); Lawson v. Lawson, 828 S.W.2d 158, 161 (Tex.App.-Texarkana 1992, writ denied); see also 4 ROY W. MCDONALD & ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 20:6, at 22-23 (2d ed.2001).

Donald timely filed a statement of points for appeal and a supplemental statement of points within fifteen days after the court signed the judgment. See TEX. FAM.CODE ANN. § 263.405(b)(2) (Vernon Supp.2007). The first four of those points³ read as follows:

1. The Trial Court erred when it terminated Donald Taylor's parental rights to [S.T.] under Texas Family Code Section 161.001(1)(D) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that Donald Taylor knowingly placed or knowingly allowed his daughter [S.T.] to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.

2. The Trial Court erred when it terminated Donald Taylor's parental rights to [S.T.] under Texas Family Code Section 161.001(1)(E) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that Donald Taylor engaged in conduct or knowingly placed [S.T.] with persons who engaged in conduct which endangers the physical or emotional well-being of the child.

3. The Trial Court erred when it terminated Donald Taylor's parental rights to [S.T.] under Texas Family Code Section 161.001(1)(F) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that Donald Taylor failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition.

4. The Trial Court erred when it terminated Donald Taylor's parental rights to [S.T.] under Texas Family Code Section 161.001(1)(O) because the evidence is factually insufficient, and the findings in the judgment are legally insufficient, to support the claim that Donald Taylor failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing Conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.

The trial court reviewed Donald's points and determined that his appeal is frivolous.⁴ See TEX. FAM.CODE ANN. § 263.405(d)(3) (Vernon Supp.2007). The court ruled that the four points quoted above "are without merit and are frivolous as a substantial issue for appellate review has not been presented as required by Texas Family Code § 263.405(i)."

Donald contends that none of these four points is frivolous. Thus, he prays that this Court "reverse the order of the trial court finding his appeal frivolous and either reverse the order terminating appellant's parental rights or permit briefing on the merits of the appeal."

Standard of Review

Section 263.405(d)(3) requires a trial court to determine whether "the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code." Id. § 263.405(d)(3). Section 13.003(b) of the Civil Practice and Remedies Code provides, "In 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) (Vernon 2002).

We review the court's decision under an abuse-of-discretion standard. In re M.N.V., 216 S.W.3d 833, 834 (Tex.App.-San Antonio 2006, no pet.); K.D., 202 S.W.3d at 866; In re H.D.H., 127 S.W.3d 921, 923 (Tex.App.-Beaumont 2004, no pet.). "An appeal is frivolous when it lacks an arguable basis in law or in fact." M.N.V., 216 S.W.3d at 834 (citing De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.));⁵ accord K.D., 202 S.W.3d at 866; H.D.H., 127 S.W.3d at 923.

Adequacy of Statement of Points

The Department contends that Donald's stated points are too general to satisfy the requirements of section 263.405(i). See TEX. FAM.CODE ANN. § 263.405(i) (Vernon Supp.2007). That statute provides in pertinent part, "[A] claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal." Id.

The Department cites a decision by this Court and one by the Fourteenth Court of Appeals in which general statements of points were held insufficient.⁶ See In re J.W.H., 222 S.W.3d 661 (Tex.App.-Waco 2007, no pet.); In re C.M., 208 S.W.3d 89 (Tex.App.-Houston [14th Dist.] 2006, no pet.). In J.W.H., the appellant's statement of points asserted that the Department "did not meet the burden of proof at trial required for the termination of [Herrington's] parental rights." J.W.H., 222 S.W.3d at 662. We held that this statement was not sufficiently specific to satisfy section 263.405(i). Id.

In C.M., the appellant did not even file a statement of points, but the court of appeals briefly addressed a statement contained in her notice of appeal which read, "Crystal Doyle desires to appeal from all portions of the judgment." C.M., 208 S.W.3d at 92 n. 3. The Fourteenth Court held that this statement was not sufficiently specific to satisfy section 263.405(i). Id.

Here, Donald contends in each of his four points that "the evidence is factually insufficient, and the findings in the judgment are legally insufficient" to support the predicate finding for termination addressed in that point. We construe these to be complaints that there is factually insufficient evidence to support each of the trial court's four predicate findings for termination of his parental rights. Because each of the points is addressed to a particular predicate finding, we hold that they are sufficiently specific to preserve these issues for appellate review under section 263.405(i).

Dangerous Conduct

Donald contends in his second point that the evidence is factually insufficient to support the court's finding under section 161.001(1)(E) that he engaged in conduct which endangered S.T.'s physical or emotional well-being.

At the section 263.405(d) hearing, the Department asked the trial court to "take judicial notice of the trial and all of the hearings that preceded the trial." Donald objected to this request arguing that there was no way he could challenge the veracity of the Department's assertions regarding the trial testimony without a transcript of those proceedings. The court overruled Donald's objection and declared that it was taking judicial notice of the trial and all prior hearings. Because the court took judicial notice of the prior proceedings, we will examine the testimony in the trial record to evaluate whether the court abused its discretion by finding Donald's first point to be frivolous.⁷ See In re S.T., 239 S.W.3d 452, 464 (Tex.App.-Waco 2007, order) (Gray, C.J., dissenting).

The Supreme Court has set forth the applicable standard of review for a factual insufficiency complaint in a parental-rights termination case.

[A]s we explained in In re C.H., a...