                              NUMBER 13-10-00683-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                     IN THE INTEREST OF D.S.G., A CHILD


                    On appeal from the 267th District Court
                          of Victoria County, Texas.


                              MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Chief Justice Valdez

       By one issue, appellant, the Texas Department of Family and Protective

Services, appeals the ruling of the 24th Judicial District Court of Victoria County denying

its petition to terminate D.H.‟s parental rights to D.S.G. and finding its appeal from that

ruling to be frivolous. We affirm the denial of the petition.

                                      I. Background

       On February 10, 2009, several months after the Department of Public Safety

raided her parents‟ home and discovered weapons and illegal drugs, D.S.G., a minor
child, became the subject of appellant‟s temporary managing conservatorship.

Appellant filed a petition to terminate the parental rights of D.H. and R.L.G., the child‟s

mother and father. On July 23, 2010, the parties agreed to the district court‟s

appointment of appellant as D.S.G.‟s permanent managing conservator. Under the

terms of the agreement, D.H. and R.L.G. were appointed possessory conservators. An

order was entered reflecting the terms of the agreement, in which the court stated its

finding “that such appointment is in the best interest of the child, and that the limited

possession and access provided by [the] order is required, and does not exceed the

restrictions needed to protect the best interest of the child.”

       Also on July 23, 2010, only hours after the court entered an order on appellant‟s

first petition, appellant filed a second petition to terminate the parental rights of D.H. and

R.L.G. A bench trial was held on November 30, 2010. Subsequently, on December 8,

2010, the district court denied appellant‟s second petition and entered an order

containing the following findings of fact:

       1.     This Court is the Court of continuing jurisdiction, a previous FINAL
       ORDER IN SUIT AFFECTING PARENT-CHILD RELATIONSHIP in this
       cause appointing the Department of Family and Protective Services
       Permanent Managing Conservator of the child [D.S.G.] and appointing the
       mother [D.H.] and the father [R.L.G.] Possessory Conservators with
       limited possession and access being signed on July 23, 2010.

       2.     The pleading labeled „Second Amended Petition for Protection of a
       Child, for Conservatorship, and for Termination of the Parent-Child
       Relationship‟ filed July 23, 2010, at 2:35 p.m. is a new petition for
       termination filed after the 7/23/2010 rendition of the FINAL ORDER IN
       SUIT AFFECTING PARENT-CHILD RELATIONSHIP in this cause which
       was filed at 10:38 a.m. on July 23, 2010, being an order previously
       denying the termination of the parent-child relationship. Therefore,
       Petitioner is required to prove the elements as set forth in Family Code §
       161.004 by clear and convincing evidence for termination.


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      3.     The Court finds by clear and convincing evidence that the mother
      [D.H.] has done the following prior to July 23, 2010:

      a.   knowingly placed the child in conditions or surroundings that
      endanger the child‟s physical or emotional well-being;

      b.     knowingly allowed the child to remain in conditions or surroundings
      that endanger the child‟s physical or emotional well-being;

      c.    engaged in conduct that endangers the child‟s physical or
      emotional well-being; and

      d.     knowingly placed the child with a person who engaged in conduct
      that endangers the child‟s physical or emotional well-being;

      ....

      6.      The Court deems the petition will be considered filed effectively
      after the date of the 7/23/2010 order denying termination was rendered,
      the petition being filed on the same day but after the previous order which
      denied termination was filed and no party objecting to the filing date prior
      to announcing ready on 11/30/2010, being more than four months after
      7/23/1010.

      7.     The Court finds that petitioner failed to prove by clear and
      convincing evidence that the circumstances of the child, the mother, the
      father, or sole managing conservator have materially and substantially
      changed since July 23, 2010, the date the previous order denying
      termination was rendered.

      In its order entered December 8, 2010, the district court also made the following

conclusions of law:

      1.    The parent-child relationship between the mother D.H., the father
      R.L.G., and the child D.S.G. should not be terminated, petitioner having
      not proven the element required under Texas Family Code §
      161.004(a)(2) by clear and convincing evidence.

      2.     The FINAL ORDER IN SUIT AFFECTING PARENT-CHILD
      RELATIONSHIP in this cause signed on July 23, 2010, shall remain in full
      force and effect.




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       After appellant filed its notice of appeal, the district court entered an order in

which it found the appeal to be frivolous. Subsequently, on January 18, 2011, appellant

filed an amended notice of appeal by which it also challenged the finding of

frivolousness by the district court. See TEX. FAM. CODE ANN. § 263.405(g) (Vernon

Supp. 2007).

                             II. Finding of Frivolous Appeal

       In a threshold issue, appellant challenges the finding of the district court that its

appeal is frivolous. We review a trial court‟s determination that an appeal is frivolous for

abuse of discretion. See In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.—San Antonio

2006, no pet.).    Section 263.405(d)(3) of the family code directs the trial court to

determine whether an appeal from an order granting or denying a petition to terminate

parental rights is frivolous as provided by section 13.003(b) of the civil practice and

remedies code. See TEX. FAM. CODE ANN. § 263.405(d)(3) (West 2008); TEX. CIV. PRAC.

& REM. CODE ANN. § 13.003(b) (West 2002). In relevant part, the civil practice and

remedies code provides that “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). Once the trial court determines

that an appeal is frivolous, the scope of appellate review is statutorily limited to a review

of the trial court‟s frivolousness finding. In re K.D., 202 S.W.3d 860, 865 (Tex. App.--

Fort Worth 2006, no pet.). Accordingly, before this Court can reach the merits of the

substantive issue raised by appellant, we must first determine whether the district court

properly found the appeal to be frivolous. See In re S.T., 239 S.W.3d 452, 454 (Tex.

App.—Waco 2007, pet. denied).



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       In its sole issue on appeal, appellant argues that the evidence was legally

sufficient to establish grounds for terminating the parental rights of D.H. and the district

court committed reversible error in denying termination. The record does not support a

finding of frivolousness. See De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154

(Tex. App.—San Antonio 1998, no pet.) (“It is well established, however, that a

proceeding is „frivolous‟ when it „lacks an arguable basis either in law or in fact.‟”); In re

Q.W.J., 331 S.W.3d 9, 14 (Tex. App.—Amarillo 2010, no pet.) (“In a contested

termination proceeding, sufficiency of the evidence, which both parents raise in their

Statements of Points, is an arguable issue on appeal.”); see also In re S.T., 239 S.W.3d

at 455 (“[W]e hold as a matter of due process that, because [father] has raised legal and

factual sufficiency claims, [the appeal is not frivolous and] the court reporter shall file a

transcript of „all of the evidence admitted‟ at trial at no cost to the appellant.”). The

district court‟s order does not articulate any guiding rules or principles that might be

used to support its ruling. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241 (Tex. 1985). Accordingly, we conclude that the district court abused its discretion in

finding the appeal to be frivolous. See In re M.N.V., 216 S.W.3d at 834. We therefore

address the merits of the case.

                  III. Denial of Petition to Terminate Parental Rights

       In its sole issue, appellant contends that the district court erred in denying

termination of D.H.‟s parental rights because the uncontested evidence proved that D.H.

used marijuana in February and August 2010, which according to appellant, is a

material and substantial change since the entry of the final order on July 23, 2010. See




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TEX. FAM. CODE ANN. § 161.004(a)(2)-(b) (West 2008). Appellant does not challenge

the denial of termination with respect to the parental rights of R.L.G.

                                 A. Standard of Review

       Termination proceedings must be strictly scrutinized and involuntary termination

statutes are to be strictly construed in favor of the parent. See Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985). As the Texas Supreme Court has explained:

       The natural right existing between parents and their children is of
       constitutional dimension . . . . A termination decree is complete, final,
       irrevocable and divests for all time that natural right as well as all legal
       rights, privileges, duties and powers with respect to each other except for
       the child‟s right to inherit . . . . Consequently, termination proceedings
       should be strictly scrutinized, and involuntary termination statutes strictly
       construed in favor of the parent.

Id.

       We review the legal sufficiency of the evidence using the as-a-matter-of-law

standard because appellant had the burden of proof at trial and now argues that the trial

court, acting as the fact-finder, erred in not making findings in its favor. See Sterner v.

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Appellant must show that the

evidence establishes, as a matter of law, all vital facts supporting the issue. See Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).


       Clear and convincing evidence is “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2002); In

re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because termination findings must be based

upon clear and convincing evidence, not simply a preponderance of the evidence, the

Texas Supreme Court has held that the traditional legal and factual standards of review

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are inadequate. See In re J.F.C., 96 S.W.3d at 264-66. Instead, in conducting a legal-

sufficiency review in a termination-of-parental-rights case, we must determine whether

the evidence, viewed in the light most favorable to the finding, is such that the fact finder

could reasonably have formed a firm belief or conviction about the truth of the matter on

which the movant in a termination proceeding bore the burden of proof. See id. at 266.

In viewing the evidence in the light most favorable to the judgment, we “must assume

that the fact finder resolved disputed facts in favor of its finding if a reasonable fact

finder could do so,” and we “should disregard all evidence that a reasonable fact finder

could have disbelieved or found to be incredible.” In re J.P.B., 180 S.W.3d 570, 573

(Tex. 2005) (citing In re J.F.C., 96 S.W.3d at 266). Only when the contrary proposition

is established conclusively should the point of error be sustained. See Dow Chem. Co.,

46 S.W.3d at 241; see also City of Keller v. Wilson, 168 S.W.3d 802, 814-17 (Tex.

2005).


                                        B. Analysis

         According to appellant, the evidence offered at trial establishes, as a matter of

law, that a material and substantial change occurred between July 23, 2010, when the

district court entered its order denying termination, and November 30, 2010, when a trial

was held on appellant‟s second petition to terminate the parental rights of R.L.G. and

D.H. Specifically, appellant argues that the evidence offered at trial proves as a matter

of law that D.H. tested positive for marijuana use in February and August 2010 in

violation of her community supervision requirements. The evidence also shows that

D.H. had previously completed a drug rehabilitation program as a condition of her

deferred adjudication.


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       Since one of the two instances of alleged drug use occurred after the order was

entered on July 23, 2010, appellant argues that the evidence establishes, as a matter of

law, that a material and substantial change occurred after the original order was entered

on July 23, 2010. Appellant contends that the trial court committed reversible error by

denying appellant‟s petition to terminate the parent-child relationship based on D.H.‟s

use of marijuana. We disagree.

       In relevant part, section 161.004 of the Texas Family Code states as follows:

       The court may terminate the parent-child relationship after rendition of an
       order that previously denied termination of the parent-child relationship if .
       . . the circumstances of the child, parent, sole managing conservator,
       possessory conservator, or other party affected by the order denying
       termination have materially and substantially changed since the date that
       the order was entered.

TEX. FAM. CODE ANN. § 161.004(a)(2) (emphasis added). Appellant relies on section

161.001 of the Texas Family Code, which provides in relevant part:

       The court may order termination of the parent-child relationship if the court
       finds by clear and convincing evidence that the parent has used a
       controlled substance . . . in a manner that endangered the health or safety
       of the child, and . . . after completion of a court-ordered substance abuse
       treatment program, continued to abuse a controlled substance.

TEX. FAM. CODE ANN. § 161.001(1)(P)(ii) (West 2010).

       At trial, appellant argued that D.H. should have her parental rights terminated

and be denied “reunification with her child for [taking] a hit [of marijuana].” The district

court disagreed, finding that appellant had failed to prove by clear and convincing

evidence that the circumstances of the child, the mother, the father, or sole managing

conservator have materially and substantially changed since July 23, 2010, the date the

previous order denying termination was entered.           See TEX. FAM. CODE ANN. §



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161.004(a)(2). Having reviewed the record, we conclude that appellant has failed to

demonstrate that the evidence proved, as a matter of law, that a material and

substantial change had occurred since the entry of the order on July 23, 2010.

      In reaching this conclusion, we emphasize the importance of the relevant dates.

Appellant argues that the district court was free to consider any material and substantial

change that occurred between July 23, 2010, the date the first order was entered, and

November 30, 2010, the date when the court held a trial on appellant‟s second petition.

We disagree.

      It is axiomatic that “a parental rights termination order can be upheld only on

grounds both pleaded and proved by [appellant] and found by the trial court.” Ruiz v.

Tex. Dep't of Family & Protective Servs, 212 S.W.3d 804, 813-14 (Tex. App.—Houston

[1st Dist.] 2006, no pet.). In the case at bar, appellant argues that the district court

should have terminated D.H.‟s parental rights based on drug use that occurred in

August 2010, well after its second petition for termination was filed on July 23, 2010.

Given that this alleged drug use by D.H. had not occurred when appellant filed its

second petition for termination of parental rights, we conclude that it was not fairly

pleaded in the petition. Therefore, it cannot be relied upon for termination. See id.

Instead, we are limited to consideration of the drug use that allegedly took place in

February 2010, which was fairly pleaded in the petition.         Because this drug use

occurred months before the order was entered on July 23, 2010, it cannot be

considered a material and substantial change in the circumstances occurring after the

entry of the order. See TEX. FAM. CODE ANN. § 161.004(a)(2).




                                            9
       Even if we were to consider the evidence of drug use that occurred in August

2010, that evidence is not sufficient to establish conclusively that a material and

substantial change occurred. See Dow Chem. Co., 46 S.W.3d at 241. The statute

relied upon by appellant relies requires more than mere use of a controlled substance,

such as marijuana. See TEX. FAM. CODE ANN. § 161.001(1)(P)(ii). The statute requires

proof that (1) the parent used a controlled substance “in a manner that endangered the

health or safety of the child”; and (2) “after completion of a court-ordered substance

abuse treatment program, [the parent] continued to abuse a controlled substance.” Id.

In this case, appellant failed to offer evidence that D.H. used a controlled substance “in

a manner that endangered the health or safety of the child.” Id. Thus, the outcome of

our analysis would not be different even if we were to consider the evidence that D.H.

used marijuana in August 2010, after appellant was appointed D.S.G.‟s permanent

managing conservator.

       In addition, because this is an appeal from the denial, rather than granting, of a

petition to terminate parental rights, it is appellant‟s burden to establish that the district

court had no discretion to deny termination. See TEX. R. APP. P. 44.1(a). The district

court has statutory authority to terminate parental rights based on legally sufficient

evidence establishing grounds for termination, but the statute also gives the court a

measure of discretion, allowing it to deny termination even where legally sufficient

evidence is presented. See TEX. FAM. CODE ANN. §§ 161.001(1)(P)(ii), 161.004(a)(2).

Specifically, the relevant sections of the family code state that the court “may terminate”

and “may order termination.”         See TEX. FAM. CODE ANN. §§ 161.001(1)(P)(ii),

161.004(a)(2). Chapter 311 of the Texas Government Code, also known as the Code



                                             10
Construction Act, explains that the term “may” “creates discretionary authority or grants

permission or a power,” whereas the term “shall” “imposes a duty.” TEX. GOV‟T CODE

ANN. §§ 311.016(1), (2) (West 2005).

        Although appellant has argued that the evidence was sufficient to prove its

grounds for termination, it has not acknowledged or attempted to negate the

discretionary authority of the district court to deny termination. To sustain appellant‟s

issue, we would have to interpret the statutory language “may terminate” and “may

order termination” as “shall terminate” and “shall order termination.” See TEX. GOV‟T

CODE ANN. §§ 311.016(1), (2) (West 2005). Among other things, this reading of the

statute deprives the court of the discretion to enter an agreed order, as it did in this

case.    Therefore, we strictly construe the language of the statute to preserve the

discretionary authority that has been conferred on the court. See Holick, 685 S.W.2d at

20. Based on the foregoing, we conclude that appellant has not established that the

district court committed reversible error in denying the petition for termination. See TEX.

R. APP. P. 44.1(a).

        Appellant‟s sole issue is overruled.

                                      IV. Conclusion

        We affirm the district court‟s order denying appellant‟s petition to terminate the

parental rights of D.H.

                                                       ___________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Delivered and filed the
4th day of August, 2011.




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