
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-03-388 CV

____________________


IN THE INTEREST OF H.D.H. and C.M.H., minors





On Appeal from the 411th District Court
Polk County, Texas

Trial Cause No. PC02973




O P I N I O N
	 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.   The jury also determined that the parental rights of Sadonia Marie Massey, the
children's mother, should be terminated.  Massey does not appeal.
2.  Some courts have stated that appellate courts are "duty bound to strictly scrutinize
termination proceedings and must strictly construe involuntary termination statutes in favor
of the parent."  In re D.T., 34 S.W.3d 625, 630 (Tex. App.--Fort Worth 2000, pet.
denied)(op. on reh'g) (citing Holick v. Smith, 685 S.W.2d 18, 20-21(Tex. 1985)).  However,
the Texas Supreme Court has determined that "Holick's strict scrutiny language does not
dictate procedure.  The language simply evidences this Court's recognition of the important
interests involved in parental-termination proceedings."  In re J.F.C., 96 S.W.3d 256, 303
(Tex. 2002).
3.  We also note the Texas Supreme Court has recently held "the statutory right to
counsel in parental-rights termination cases embodies the right to effective counsel."  In
re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see Tex. Fam. Code Ann. § 107.013(a)(1)
(Vernon Supp. 2004).  If, as the Department contends throughout its brief, appellant
waived error on appellate points he presented to the trial court, the right to effective
assistance of counsel may be an issue.  See In re M.S., 115 S.W.3d at 548-50 ("if the court
of appeals finds that the evidence to support termination was factually insufficient, and that
counsel's failure to preserve a factual sufficiency complaint was unjustified and fell below
being objectively reasonable, then it must hold that counsel's failure to preserve the factual
sufficiency complaint by a motion for new trial constituted ineffective assistance of
counsel."); see also In re B.L.D., 113 S.W.3d 340, 354 (Tex. 2003), pet. for cert. filed,
_____ U.S.L.W. _____ (U.S. Nov. 19, 2003) (No. 03-8432)("fact-specific due process
analysis" . . . "could require a court of appeals to review an unpreserved complaint of
error to ensure that our procedures comport with due process.").





