

Opinion filed January 27,
2011
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00351-CV
                                                    __________
 
                           IN
THE INTEREST OF A.L.J., A CHILD

 
                                   On
Appeal from the 118th District Court
                                                          Howard
County, Texas
                                                     Trial
Court Cause No. 46,648
 

 
                                            M E M O R A N
D U M   O P I N I O N
 
            The
trial court terminated the parental rights of A.L.J.’s father.  A.L.J.’s father
filed an appeal.  Upon motion by the Department of Family and Protective
Services, the trial court held a hearing and found the appeal to be frivolous
under Tex. Fam. Code Ann. §
263.405(d) (Vernon 2008) and Tex. Civ.
Prac. & Rem. Code Ann. § 13.003 (Vernon Supp. 2010).  A.L.J.’s
father has timely appealed the frivolous finding.  See Section
263.405(g).  We affirm.  
            Because
the trial court found that this appeal is frivolous under Section 263.405(d),
appellate review at this stage is limited to a review of the trial court’s
exercise of its discretion in determining that the appeal is frivolous.  In
re J.J.C., 302 S.W.3d 436, 442 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied); In re A.B., 269 S.W.3d 120, 124 (Tex. App.—El Paso 2008, no
pet.); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d
524, 526-27 (Tex. App.—Houston [1st Dist.] 2008, no pet.); In re K.D.,
202 S.W.3d 860, 865 (Tex. App.—Fort Worth 2006, no pet.).  An appeal is
frivolous if it lacks an arguable basis in either fact or law.  In re J.J.C.,
302 S.W.3d at 444; Lumpkin, 260 S.W.3d at 527.  
            Appellant
asserts in this appeal that the trial court abused its discretion in finding the
appeal frivolous because “no extraordinary circumstances existed to extend
[this case] beyond the dismissal date of October 18, 2010.”  The trial court
addressed this issue at the hearing and noted that it was the only point presented
by appellant in his statement of points for appeal. Tex. Fam. Code Ann. § 263.401(a) (Vernon 2008) provides that,
unless trial has commenced or an extension has been granted, a case filed by
the Department requesting termination of parental rights shall be dismissed “on
the first Monday after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary managing conservator.”  Section
263.401(b) authorizes a trial court to grant up to a 180-day extension if “the
court finds that extraordinary circumstances necessitate the child remaining in
the temporary managing conservatorship of the department and that continuing
the appointment of the department as temporary managing conservator is in the
best interest of the child.”  
            We
hold that the trial court did not abuse its discretion in finding this appeal
to be frivolous.  First, the record from the Section 263.405(d) hearing
indicates that the trial court had offered to hold a jury trial on October 11,
2010, within the one-year time frame, but that appellant’s counsel had a
conflict.  The trial court then extended the dismissal date and set the case
for trial in November.  The jury trial terminating appellant’s parental rights
was held within one month after the original, one-year dismissal date.  Second,
Section 263.402(b) specifically provides:  “A party to a suit under this
chapter who fails to make a timely motion to dismiss the suit under this
subchapter waives the right to object to the court’s failure to dismiss the
suit.”  Third, under Section 263.401(b), the reason for the extension need not be
extraordinary, but the circumstances necessitating that the child remain in the
care of the Department must be extraordinary.  
The
judgment of the trial court is affirmed.  
 
 
                                                                                                JIM
R. WRIGHT
                                                                                                CHIEF
JUSTICE
January 27, 2011
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.

