dissenting.
In a unanimous en banc opinion, the Second Court of Appeals in In re M.R.J.M., 193 S.W.3d 670 (Tex.App.-Fort Worth 2006, no pet.) wrote:
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. 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 *394question exists as to whether the termination finding is supported by factually sufficient evidence. The legislature cannot take away this power or interfere with our exercise of it. Any attempt to do so would be null and void.
Id. at 675-76. That Court ordered a reporter’s record of the evidence prepared. This Court should do the same. Because the statute authorizes courts of appeals to issue “appropriate orders,” the statute recognizes the Court’s authority to order a record of all of the evidence when necessary to review a trial court’s determination that an appeal raising a factual sufficiency point is frivolous. See Tex. Fam.Code Ann. § 263.405(g) (Vernon Supp.2006). For that reason, the statute is not unconstitutional under the separation of powers clause of the Texas Constitution. In re 193 S.W.3d. at 676. The “appropriate order” under the circumstances is to require the record of the evidence transcribed and filed. An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence.
The Texas Supreme Court has emphasized that “[tjermination of parental rights is traumatic, permanent and irrevocable .... For this reason, any significant risk of erroneous deprivation is unacceptable.” In re M.S., 115 S.W.3d 534, 549 (Tex.2003). The factual sufficiency challenge may be assumed to be a losing issue based on the summaries presented at the post-trial hearing. The assumption carries an unacceptable risk when the evidence is disputed. The Department’s arguments may seem strong in this or in the next case. But can appellate counsel, competent as she is, adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record? See, e.g., Hardy v. United States, 375 U.S. 277, 279-80, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) (New counsel representing indigent defendant in criminal appeal could not adequately discharge his duty without having the entire transcript available for his reading.).
"When the appeal is from the trial court’s determination that the sufficiency complaint is frivolous, section 263.405 should be construed in a way that allows review of the evidentiary record to determine factual sufficiency. In re 193 S.W.3d at 676. Because the Court does not order the reporter’s record of the evidence presented at trial, and does not review the trial record in determining that the factual sufficiency complaint is frivolous, I respectfully dissent.