In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-388 CV
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IN THE INTEREST OF H.D.H. and C.M.H., minors
Polk County, Texas
Trial Cause No. PC02973
After a jury found that the parental rights of Christopher Horton should be terminated, (1) the trial court entered its order terminating the parent-child relationships between appellant and his two children, H.D.H. and C.M.H. Pursuant to section 263.405 of the Texas Family Code, appellant filed his sworn statement of indigency, motion for new trial, and statement of appellate points. The trial court found appellant was indigent, and appellee, the Texas Department of Protective and Regulatory Services ("Department"), does not contest that determination. The trial court further denied appellant's motion for new trial, and found: (1) appellant presented no substantial question for appellate review and (2) the appeal was frivolous. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2002); see Tex. Civ. Prac. & Rem. Code § 13.003 (Vernon 2002). In accordance with the statute, this court has reviewed the parties' briefs and limited appellate record. See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2002). We overrule and vacate the trial court's order of September 3, 2003.
Under Family Code section 263.405, a trial court may determine an indigent party's
appeal from a termination order is frivolous as provided by Texas Civil Practice and
Remedies Code section 13.003(b). See Tex. Fam. Code Ann. § 263.405(d)(3). Such a
determination precludes the indigent party from receiving a complete reporter's record and
clerk's record for appeal. See Tex. Fam. Code Ann. § 263.405(d)(3); see Tex. Civ.
Prac. & Rem. Code §13.003 (Vernon 2002). In deciding whether an appeal is frivolous,
a court "may consider whether the appellant has presented a substantial question for
appellate review." See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b). An appeal is
frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco
Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.--San Antonio, 1998, no pet.). In
addition, we recognize terminating parental rights is a "drastic remedy." In re D.T., 34
S.W.3d 625, 630 (Tex. App.--Fort Worth 2000, pet. denied) (op. on reh'g). "The liberty
interest . . . of parents in the care, custody, and control of their children -- is perhaps the
oldest of the fundamental liberty interests recognized by [the Supreme] Court." Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56 (2000). (2)
We must determine whether, on the record before us, the trial court abused its
discretion in finding appellant presented no substantial question for appellate review and
in finding the appeal to be frivolous, or without an arguable basis either in law or in fact.
De La Vega, 974 S.W.2d at 154. The appellate standard for reviewing termination
findings is whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d 17,
25-26 (Tex. 2002). In this limited record, we find a disturbing contradiction. On the one hand, the
termination order finds appellant knowingly placed or knowingly allowed the children to
remain in conditions or surroundings that endanger the physical or emotional well-being
of the children and further finds appellant engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangers the physical or emotional
well-being of the children. On the other hand, at the hearing to determine appellant's
entitlement to a free record, the Department's counsel had this to say: Well, there's no evidence in the trial to show that Mr. Horton knew of his
wife's sexual activities or knew that the children were ever exposed to such.
And that goes to the ground of knowingly placed or knowingly allowed
children to remain in conditions or surroundings which endanger the physical
or emotional well being. There's no evidence that it was knowing on his
part. That's not the grounds that he was terminated on. There was no
evidence to terminate him on that ground. It's simply not relevant to the
defense of his cause of action. The Department is bound by these judicial admissions of its attorney. See Isern v. Watson, 942 S.W.2d 186, 200-01(Tex. App.--Beaumont 1997, writ denied). Thus, the evidence here is such that, in light of the Department's judicial
admissions, a factfinder could not reasonably form a firm belief or conviction about the
truth of the State's allegations in its petition - namely, that appellant knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that endanger the
physical or emotional well-being of the children and engaged in conduct or knowingly
placed the children with persons who engaged in conduct that endangers the physical or
emotional well-being of the children. Here, we have clear and convincing evidence from
the Department itself contradicting the essential findings of the court. On these facts, we
find the trial court abused its discretion in finding appellant presented no substantial
question for appellate review and in finding the appeal to be frivolous. The record here
shows an arguable basis for appealing the termination order. (3)
De La Vega, 974 S.W.2d
at 154. As we have found the trial court abused its discretion, we overrule and vacate the
trial court's order of September 3, 2003, which ruled that appellant was not entitled to a
free record on appeal, and hold that appellant is entitled to proceed on appeal without
advance payment of costs. The complete clerk's record and the reporter's record are due
sixty days from the date of this opinion. The appellant's brief is due twenty days after the
filing of the appellate record. The appellee's brief is due twenty days after the appellant
files his brief. OVERRULED AND VACATED. ____________________________ DON BURGESS Justice Submitted on February 6, 2004 Opinion Delivered February 12, 2004 Before McKeithen, C.J., Burgess and Gaultney, JJ.
1. 2. 3.