












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO.
2-05-074-CV
 
 
IN THE
INTEREST OF T.C. AND G.C., CHILDREN
 
 
                                              ------------
 
            FROM THE 367TH
DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
 
I.  Introduction and Procedural Background




This appeal arises from the trial court=s
determination that Appellants=[1] appeals
from the termination of their rights to T.C. and G.C. would be frivolous.  After a four-day jury trial, the jury found
by clear and convincing evidence that Appellants= rights
to T.C. and G.C. should be terminated, and the trial court signed a final order
reflecting the jury=s findings.  The trial court subsequently held the hearing
required by family code section 263.405(d) and denied father=s motion
for new trial, found that mother and father are indigent, and determined that
because neither mother nor father had presented a substantial question for
appellate review, both of their appeals are frivolous.  See generally Tex. Fam. Code Ann. '
263.405(b), (d) (Vernon Supp. 2005) (providing procedures for determining
indigency and right to obtain free record for appeal of judgment terminating
parental rights).  Mother and father now
appeal, challenging the constitutionality of family code section 263.405 and
civil practice and remedies code section 13.003, as well as the trial court=s
findings that their appeals are frivolous. 
See id. ' 263.405(g).
II.  Constitutional Issues
Mother argues in her first two points and father
argues in his first four points that family code section 263.405 violates the
Equal Protection Clause and the Due Process Clause of the United States and
Texas Constitutions.  Father also argues
in his seventh point that Texas Civil Practice and Remedies Code section 13.003
violates his right to due process of law.




The gist of Appellants=
arguments is that section 263.405 of the Texas Family Code is unconstitutional
because it treats an indigent party=s appeal
differently from a non-indigent party=s appeal
and because it makes a distinction between parents in a private termination
case and parents in a termination case brought by the Texas Department of
Family and Protective Services (TDFPS). Specifically, Appellants argue that the
statute allows a trial judge to deny an indigent appellant a record of the
trial, while a non-indigent appellant could purchase a record and provide it to
the appellate court and that the statute subjects a parent whose parental
rights have been terminated in a suit brought by the government to a hearing
held by the trial court to determine whether his or her appeal is frivolous,
while a parent whose parental rights have been terminated in a suit brought by
an individual is able to freely appeal the termination order.  For the reasons discussed below, we conclude
that family code section 263.405 applies equally to indigent and to
non-indigent parents and applies equally in termination suits initiated by
TDFPS and by private individuals.




In addressing Appellants=
constitutional challenges to family code section 263.405, we begin with the
premise that, if possible, we must interpret a section 263.405 in a manner that
renders it constitutional.  FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000); Quick
v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998).  A party raising a facial challenge to the
constitutionality of a statute must demonstrate that the statute always
operates unconstitutionally.  Wilson
v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999).  In other words, a challenger must establish
that no set of circumstances exists under which the statute would be
valid.  Id.  In reviewing a facial challenge to a statute=s
constitutionality, we consider the statute as written, rather than as it
operates in practice.  See Barshop v.
Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626- 27
(Tex. 1996).
Turning to the language of the statute at issue,
family code section 263.405, it provides in relevant part:
(d) The trial court shall
hold a hearing not later than the 30th day 
after the date the final order [terminating parental rights] is signed
to determine whether:
 
(1) a new trial should be granted;
 
(2) a party=s claim of indigence, if
any, should be sustained; and
 
(3) the appeal is frivolous as provided by Section 13.003(b), Civil
Practice and Remedies Code.
 
. . . .
 
(f) The appellate record
must be filed in the appellate court not later than the 60th day after the date
the final order is signed by the trial judge, unless the trial court, after a
hearing, grants a new trial or denies a request for a trial court record at no
cost.
 




(g) The appellant may
appeal the court=s order denying the
appellant=s claim of indigence or
the court's finding that the appeal is frivolous by filing with the appellate
court the reporter=s record and clerk=s record of the hearing
held under this section, both of which shall be provided without advance
payment, not later than the 10th day after the court makes the decision.  The appellate court shall review the records
and may require the parties to file appellate briefs on the issues presented,
but may not hear oral argument on the issues. 
The appellate court shall render appropriate orders after reviewing the
records and appellate briefs, if any.
 
Tex. Fam. Code Ann. '
263.405(d), (f)-(g).
Section 263.405 does not set out the test the
trial court is required to apply to determine whether a party is indigent and
is therefore entitled to a free record.  See Tex. Fam. Code Ann. '263.405(f).  That test is set forth in section 13.003 of
the civil practice and remedies code, which is captioned AFree
Transcript of Statement of Facts on Appeal@ and
states in part:
(a) Subject to Subsection
(c), a court reporter shall provide without cost a statement of facts and a
clerk of a court shall prepare a transcript for appealing a judgment from the
court only if:
 
(1) an affidavit of inability to pay the cost of the appeal has been
filed under the Texas Rules of Appellate Procedure; and
 
(2) the trial judge finds:
 
(A) the appeal is not frivolous; and
 
(B) the statement of
facts and the clerk=s transcript is needed to
decide the issue presented by the appeal.
 
Tex. Civ. Prac. & Rem. Code Ann. '
13.003(a) (Vernon 2002).




Thus, juxtaposing family code section 263.405 and
civil practice and remedies code section 13.003(a), a trial court=s
determination that an appeal is frivolous has two statutory consequences.  First, under family code section 263.405(g),
it limits the scope of appellate review to the trial court=s
determination that the appeal is frivolous. 
In re S.J.G., 124 S.W.3d 237, 243 (Tex. App.CFort
Worth 2003, pet. denied) (recognizing that, after a finding by the trial court
that an appeal is frivolous, parent whose parental rights have been terminated
may appeal trial court=s frivolousness
determination).  Section 263.405(g)=s
statutory limit on the scope of appellate review following a frivolousness
determination applies equally to indigent and to non-indigent appellants.  See Tex.
Fam. Code Ann. ' 263.405(g).  Second, under civil practice and remedies
code section 13.003(a)(2)(A), a trial court=s
frivolousness determination has the consequence of denying an indigent
appellant the right to a free clerk=s record
and reporter=s record of the underlying
trial.  Tex.
Civ. Prac. & Rem. Code Ann. '
13.003(a)(2)(A).  This second
consequence, the statutory denial of a free appellate record to an indigent
appellant, occurs, of course, only when the appellant is indigent.  It is the disparate impact of this second
statutory consequence of a section 263.405(d)(3) frivolousness finding that
Appellants argue is unconstitutional.




A close examination of the interplay between
family code section 263.405(d), (f), (g) and civil practice and remedies code
section 13.003(a)(2)(A) demonstrates that the second consequence is immaterial
because of the first consequence.  That
is, 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.  Tex. Fam. Code Ann. '
263.405(g); see also S.J.G., 124 S.W.3d at 243.  And section 263.405(g) mandates that the
reporter=s record
and the clerk=s record of the frivolousness
hearing Ashall be
provided without advance payment@ to the
appellant.  Tex. Fam. Code Ann. '
263.405(g).  Nothing in section 263.405
suggests that a non-indigent appellant has the right to file any record with an
appellate court other than the reporter=s record
and the clerk=s record of the frivolousness
hearing.  Therefore, an appellant is
statutorily guaranteed the same limited appellate review of a trial court=s
frivolousness finding regardless of whether the appellant is indigent.




Appellants also question how it can be that a
parent facing state-initiated termination under family code chapter 263 is
statutorily limited to an appellate review of the record of a trial court=s
frivolousness finding, while a parent facing termination initiated by a private
party has the right to a full appeal under family code section 109.002, which
allows appeal from a final termination order Aas in
civil cases generally.@ 
See Tex. Fam. Code Ann. ' 109.002
(Vernon 2002).  But Appellants=
question is a non sequitur; the premise underlying the question is faulty.  Suppose a parent seeking to appeal a private
termination seeks a free record under civil practice and remedies code section
13.003.  See Tex. Civ. Prac. & Rem. Code Ann. '
13.003.  If the trial court determines
that the appeal is frivolous under section 13.003(a)(2)(A), then the parent is
not entitled to a free record.  See id. '
13.003(a).  The parent would be entitled
to a free record of the frivolousness hearing so that the frivolousness finding
could be reviewed by the appellate court. 
See De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154
(Tex. App.CSan Antonio 1998, no pet.) (op.
on reh=g) (en
banc).  In other words, the indigent
parent in a private termination whose appeal is deemed frivolous has precisely
the same right to a free record of the frivolousness hearing given by section
263.405 to an indigent parent in a state termination whose appeal is deemed
frivolous.  Thus, the disparity between
the two proceedings posited by Appellants does not exist.  Because both indigent and non-indigent
appellants have the equal right and opportunity to appeal a frivolousness
finding, we hold that section 263.405 does not violate Appellants= equal
protection or due process rights.




We turn now to Appellants=
complaint that section 263.405 denies them their constitutional right to an
appeal with a full record.  After the
briefs were submitted in this case, we held that an appellate court has the
authority to order the preparation of a free record of all of the evidence in a
termination case when necessary to review a trial court=s
determination that an appeal raising a factual sufficiency complaint is
frivolous.  In re M.R.J.M.,[2]
193 S.W.3d 670, 676 (Tex. App.CFort
Worth 2006, no pet. h.) (en banc) (holding that such an order is Aappropriate@ under
section 263.405(g)).[3]  In this case, after reviewing the record from
the frivolousness hearing, we ordered the court reporter to prepare and file a
reporter=s record
containing all of the evidence admitted at the termination trial.  See id. at 674; see also Tex. R. App. P. 34.6(d).  Because we obtained and reviewed the reporter=s record
from the trial in connection with our review of the trial court=s
frivolousness findings, we fully examined the merits of Appellants=
purported issues on appeal.  Thus, we
cannot agree that section 263.405 operates to deny appellants of a meaningful
appeal.  In any event, in light of the
review we have conducted, Appellants have suffered no harm from the complaint
they assert.  See Tex. R. App. P. 44.1(a).




We therefore overrule mother=s first
and second points and father=s first
through fourth points and his seventh point.
III.  Frivolous Finding
We turn now to mother=s third
point and father=s sixth point, in which they
challenge the trial court=s findings that their appeals
are frivolous.  Both Appellants argue
that the proceeding was not frivolous because there was an arguable basis in
law or in fact.  To support their
argument, Appellants point to the jury verdict, which was not unanimous, and
the factual and legal insufficiency of the evidence.
In determining whether an appeal is frivolous, Aa judge
may consider whether the appellant has presented a substantial question for
appellate review.@ 
Tex. Civ. Prac. & Rem. Code
Ann. ' 13.003(b); Tex. Fam. Code Ann. '
263.405(c)(3) (incorporating section 13.003(b) by reference).  AIt is
well established, however, that a proceeding is >frivolous= when it
>lacks an
arguable basis either in law or in fact.=@  De La Vega, 974 S.W.2d at 154.  We review a trial court=s
finding of frivolousness under the abuse of discretion standard.  Id.




Initially, we note that Appellants=
attempts to use the ten-two jury verdict to establish an arguable basis that
the appeal is not frivolous cannot stand. 
The law allows a verdict to be rendered by ten members of an original
jury of twelve.  See Tex. R. Civ. P. 292.




Moreover, after reviewing the reporter=s record
and exhibits from the trial, we have determined that the trial court acted
within its discretion by determining that Appellants= appeals
would be frivolous.  At the conclusion of
the trial, the jury found by clear and convincing evidence that mother=s and
father=s rights
to T.C. and G.C. should be terminated based on the following grounds:  (1) mother and father knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endangered the physical or emotional well-being of the children; (2) mother and
father engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional well-being of the
children; (3) mother and father failed to comply with the provisions of a court
order that specifically established the actions necessary for them to obtain
the return of the children, who have been in the permanent or temporary
managing conservatorship of the Department for not less than nine months as a
result of the children=s removal from the parent for
the abuse or neglect of the children; and (4) termination of the parent-child
relationship between mother and father and the children is in the children=s best
interest.  The evidence at trial  demonstrated that both mother and father
abused drugs, got into physical fights, did not maintain a stable home for
their children, did not maintain stable employment, abandoned their children
when they moved cross-country, left their children with people who were violent
and known drug users, and did not pay child support; that mother was in jail at
the time of trial and had participated in several criminal activities; that
father did Avirtually nothing@ on the
CPS service plan; and that the children suffered from aggression, developmental
delays, and anxiety issues as a result of being neglected and moved around.
Based on all the evidence admitted at trial, we
agree that any appeal from the judgment would not present a substantial
question for appellate review.  See Tex. Fam. Code Ann. '
263.405(d); Tex. Civ. Prac. & Rem.
Code Ann. ' 13.003(b) (Vernon 2002); see
also M.R.J.M., 193 S.W.3d at 673 n.7. 
Accordingly, we hold that the trial court
did not abuse its discretion by concluding that Appellants= appeals would be
frivolous.  We overrule mother=s third point and
father=s sixth point.
 
 
 
 
 




 
IV.  Conclusion
Having overruled all of Appellants= points,
we affirm the trial court=s frivolous findings.
 
SUE
WALKER
JUSTICE
 
PANEL A:   CAYCE, C.J.; WALKER and MCCOY, JJ.
DELIVERED:  August 3, 2006
 




[1]Appellants are mother and
father of T.C. and G.C.


[2]We consolidated that
appeal with this appeal of T.C. & G.C. for the limited purpose of
determining whether we have adequate records for reviewing the trial courts= frivolousness
determinations on appellants= factual sufficiency complaints.  M.R.J.M., 193 S.W.3d at 672.


[3]In his fifth point,
father argues that section 263.405 violates article V, section 6(A) of the
Texas Constitution, dealing with the appellate courts= exclusive power to
resolve factual sufficiency complaints. 
Because we have addressed this issue in M.R.J.M., 193 S.W.3d at
672 (holding that section 263.405 is not unconstitutional under the separation
of powers clause of the Texas Constitution), we overrule father=s fifth point as moot.


