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                                 MEMORANDUM OPINION

                                        No. 04-08-00340-CV

                        IN THE INTEREST OF S.M., I.T., and J.D.T., Children

                   From the 79th Judicial District Court, Jim Wells County, Texas
                                   Trial Court No. 06-10-45136
                           Honorable Ricardo H. Garcia, Judge Presiding

Opinion by:       Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 22, 2008

AFFIRMED

           The trial court appointed the Texas Department of Family and Protective Services as

managing conservator over L.S.M.’s three children without terminating L.S.M.’s parental rights.

See TEX . FAM . CODE ANN . § 263.404 (Vernon 2002). After a hearing pursuant to section 263.405

of the Texas Family Code and after allowing the parties to file additional briefing, the trial court

found that L.S.M. is not indigent, and her appeal from the trial court’s order would be frivolous. See

TEX . FAM . CODE ANN . § 263.405 (Vernon Supp. 2008). L.S.M. contends the trial court abused its

discretion in making those findings.

           We review a trial court’s determination that an appeal is frivolous under an abuse of

discretion standard. In re W.B.W., Jr., 2 S.W.3d 421, 422 (Tex. App.—San Antonio 1999, no pet.).
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An appeal is frivolous when it lacks an arguable basis 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 determining

whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a

substantial question for appellate review. TEX . CIV . PRAC. & REM . CODE ANN . § 13.003(b) (Vernon

2002); TEX . FAM . CODE ANN . § 263.405(d)(3) (Vernon Supp. 2008).

        In response to the opportunity the trial court gave the parties to file additional briefing after

the hearing, the Department submitted a brief addressing whether L.S.M.’s appeal would be

frivolous; however, L.S.M. did not submit a brief. In her brief filed in this court, L.S.M. asserts the

trial court abused its discretion in finding an appeal of the following issues raised in her statement

of appellate points would be frivolous: (1) the trial court’s failure to name her as a possessory

conservator in its order; (2) the trial court’s denial of her right to a fair jury trial because the father

of two of the children, who agreed with the appointment of the Department as managing conservator,

was allowed to participate in jury selection which disallowed L.S.M. more strikes; and (3) the

sufficiency of the evidence to support the jury’s finding that appointment of L.S.M. as managing

conservator would not be in the best interest of the children because the appointment would

significantly impair the children’s physical health or emotional development.

        With regard to the denial of a fair trial, the Department noted in its trial brief that the jury

strikes were divided between the Department and the children’s attorney ad litem, and no objection

was made with regard to the number of jury strikes. See TEX . R. APP . P. 33.1 (requiring objection

to preserve error). In addition to the preservation of error problem, L.S.M. failed to present any

argument or explain how the manner in which the jury strikes were divided resulted in a materially




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unfair trial. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex. 1979). Accordingly, the

trial court did not err in finding that L.S.M.’s assertion of this issue on appeal would be frivolous.

        With regard to the sufficiency of the evidence, L.S.M. testified at trial that she had admitted

herself to a psychiatric facility on several occasions and had overdosed on several occasions

requiring hospitalization. L.S.M. admitted that she had failed to comply with the Department’s

service plan and that she used controlled substances. L.S.M. testified as to her instability in

obtaining and maintaining employment and appropriate housing. L.S.M.’s therapist also testified

that L.S.M. was not ready to have her children returned to her. Pictures of the home from which the

children were removed were introduced into evidence depicting the deplorable conditions and

unsuitability of the home environment. Rosario Ramos, a caseworker, testified that L.S.M. could

not meet the children’s needs and that the children would face emotional and physical dangers if

returned to L.S.M. In view of this evidence, the trial court did not abuse its discretion in finding that

an appellate point based on the sufficiency of the evidence would be frivolous.

        In the final issue L.S.M. raised in her statement of appellate points, L.S.M. asserted that the

trial court was required to appoint her as a possessory conservator pursuant to section 153.191 of the

Texas Family Code. Based on the evidence previously summarized, however, the trial court did not

abuse its discretion in finding that an appeal on the basis that L.S.M. was not appointed as possessory

conservator under section 153.191 would be frivolous.1 See TEX . FAM . CODE ANN . 153.191 (Vernon

2002) (court not required to appoint parent as possessory conservator if appointment not in best

interest of the child and parental possession would endanger the physical and emotional welfare of

the child).


       1
         … W e note that the record reflects that L.S.M. is being given visitation with her children pursuant to the
Department’s current service plan.

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       We also review the trial court’s indigence finding under an abuse of discretion standard. In

re Smith, 70 S.W.3d 167, 168 (Tex. App.—San Antonio 2001, no pet.). Even absent a contest,

section 263.405 requires the trial court to determine whether L.S.M.’s claim of indigence should be

sustained. See TEX . FAM . CODE ANN . § 263.405(d),(e) (Vernon Supp. 2008). At the hearing on

May 27, 2008, L.S.M. testified that she was employed during the trial but decided to take maternity

leave beginning on May 8, 2008. While employed, L.S.M. was working almost 40 hours every week

and making $8.00 per hour. L.S.M.’s expected delivery date was not until August 16, 2008. In

response to whether a medical reason precluded her from working, L.S.M. admitted that she did not

have a doctor’s excuse. A party’s claim of indigence will fail if that party is voluntarily unemployed.

In re A.M.R., No. 04-02-00333-CV, 2002 WL 31830482, at *1 (Tex. App.—San Antonio Dec. 18,

2002, no pet.) (mem. op.); In re Smith, 70 S.W.3d at 169. In view of the evidence presented, the trial

court did not abuse its discretion in finding that L.S.M. is not indigent.

       The trial court’s order is affirmed.



                                                        Alma L. López, Chief Justice




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