Opinion issued January 29, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-01034-CV
ANGIE ABBOTT, Appellant
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2006-04169J
MEMORANDUM OPINION
Appellant Angie Abbott is attempting to appeal the termination of her parental rights to her daughter “Jane.” See Tex. R. App. P. 9.8 (requiring alias name for child in parental-rights termination cases). The district court determined, based on Abbott’s statement of points, that the appeal was frivolous. See Tex. Fam. Code Ann. § 263.405(d) (Vernon 2008) (requiring trial court to determine whether appeal is frivolous). Abbott’s appointed appellate lawyer has filed an Anders brief in which he states that he has examined the record and concluded that no arguable grounds exist to support reversing the decree of termination. See Anders v. California, 386 U.S. 738, 739–40, 87 S. Ct. 1396, 1397–98 (1967).
If a trial court makes a frivolousness finding, the aggrieved parent can appeal, but the appeal is initially limited to appealing the court’s finding that the appeal is frivolous. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2008); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The only trial-court ruling before us is the finding that the appeal is frivolous, not the final termination order, so we cannot reach the substantive merits of the appeal until we dispose of the appeal of the frivolousness finding. See generally Lumpkin, 260 S.W.3d at 526.
We review a trial court’s frivolousness finding under an abuse-of-discretion standard. Id. at 526. Applying that standard, we decide whether the trial court acted without reference to any guiding rules or principles—in other words, we must decide whether the act was arbitrary or unreasonable. Id. at 527 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
Family Code section 263.405(d)(3) directs the trial court to determine whether an appeal from a final termination order is frivolous “as provided by section 13.003(b), Civil Practice and Remedies Code.” Tex. Fam. Code Ann. § 263.405(d)(3) (Vernon 2008). Section 13.003(b) provides 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) (Vernon 2002). For analysis purposes, an appeal is frivolous when it lacks an arguable basis either in law or in fact. Lumpkin, 260 S.W.3d at 527.
An appeal of a final termination order is limited to the issues presented in the statement of points. See Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008); Lumpkin, 260 S.W.3d at 527. It follows that, if a trial court determines that an appeal is frivolous, the court has necessarily determined that each of the issues identified in the statement of points is frivolous; that is, that they lack a substantial basis in law or fact. Lumpkin, 260 S.W.3d at 527.
Abbott’s statement of appellate points contained three issues: (1) the evidence is legally and factually insufficient to support the trial court’s finding that Abbott has a mental or emotional deficiency that renders her unable to provide for the physical, emotional, and mental needs of her child; (2) there is no evidence to support the court’s finding that termination of Abbott’s parental rights is in the best interest of the child; and (3) there is legally and factually insufficient evidence to support the court’s finding that termination of Abbott’s parental rights is in the best interest of the child. When reviewing whether a sufficiency-of-the-evidence issue is frivolous in a termination case (and considering the heightened clear-and-convincing burden of proof), we must decide whether the trial court abused its discretion by determining that the evidence is such that a factfinder could have reasonably formed a firm belief or conviction that its findings were true. Id. at 528.
In his Anders brief, Abbott’s appellate lawyer concludes there are no arguable grounds he can advance on Abbott’s behalf. This Court has previously determined that it is appropriate to file an Anders brief in a termination-of-parental-rights case. See In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Although the Anders brief in this case does not specifically conclude that the sufficiency issues are frivolous under Family Code section 263.405(d), the brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds for an appeal. Because the point of filing an Anders brief is to balance the lawyer’s duty to zealously represent the client against the ethical duty not to bring a frivolous appeal, we construe the Anders brief as a conclusion by Abbott’s appellate lawyer that an appeal based on the sufficiency of the evidence would be frivolous. See id.
Based on a review of the record and the Anders brief, we hold that the trial court did not abuse its discretion when it found Abbott’s legal and factual sufficiency issues, and hence the appeal, to be frivolous. We therefore affirm the trial court’s order finding that the appeal is frivolous.
Jim Sharp
Justice
Panel consists of Justices Taft, Bland, and Sharp.