
In The


Court of Appeals


Ninth District of Texas at Beaumont

____________________


NO. 09-07-236 CV

____________________


IN THE INTEREST OF A.S.




On Appeal from the 260th District Court
Orange County, Texas

Trial Cause No. D-050934-D




OPINION
	The trial court terminated the parental rights of Jewelie Perkins and Jerry Don Scott,
Jr. to their child, A.S.  Appointed appellate counsel filed a motion for new trial and statement
of points of appeal for both Perkins and Scott.  Only Scott filed an affidavit of indigence. 
The trial court found Perkins neither established her indigence nor presented a substantial
question for appellate review.  The trial court found that Scott did establish his indigence but
that an appeal would be frivolous.  The clerk's record and a reporter's record of the hearing
have been filed.  Scott filed a brief in which he argues we should order the court reporter to
transcribe the record of the trial before we determine if the appeal is frivolous. (1)  We hold that
an appeal would be frivolous and affirm the trial court's order.  Because no substantial
question is presented for review, we affirm the judgment.
	A.S. was born October 16, 2005.  The trial court ordered the Texas Department of
Family and Protective Services to take possession of the child after the Department submitted
an affidavit that the child tested positive for cocaine and Xanax at birth and experienced
active withdrawal.  The Department petitioned to terminate Perkins's and Scott's parental
rights on multiple grounds.  See Tex. Fam. Code Ann. § 161.001(1)(E),(N),(O) and ®
(Vernon Supp. 2006).  After a jury trial, the trial court terminated Perkins's and Scott's
parental  rights.  See  Tex.  Fam.  Code  Ann.  §  161.001(1)(E),(N),(O)  and  ®  (Perkins);
§ 161.001(1)(E),(N) and (O) (Scott).
	In their statements of points for appeal, Perkins's and Scott's appellate counsel
identified each of the grounds for termination as the subject of an issue of legal and factual
sufficiency.  Perkins did not personally appear for the trial and did not file an affidavit of
indigence.  During the hearing on the points for appeal, the Department's counsel referred
to testimony regarding Perkins's mental illness and drug abuse during pregnancy.  Perkins's
counsel did not identify any evidence adduced at trial that would support an appellate
challenge to the grounds for terminating Perkins's parental rights. (2)  Evidence that Perkins
abused controlled substances while pregnant will support a finding of child endangerment. 
Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253 (Tex.
App.-- Houston [1st Dist.] 2006, no pet.).  Perkins did not file an affidavit of indigence for
the appeal and did not identify any evidence from the trial that would support the issues
identified in her statement of points for appeal.  We hold the trial court did not err in finding
that Perkins did not establish indigence and that Perkins has not presented a substantial
question for appellate review.
	During the hearing on the statement of points for appeal, Scott's counsel argued that
due process requires a reporter's record be prepared.  On appeal, Scott contends due process
requires that the reporter's record be filed before we review the trial court's ruling that Scott
is not entitled to a free record.  See In the Interest of M.R.J.M., 193 S.W.3d 670, 674 (Tex.
App.--Fort Worth 2006, no pet.).  The Department argues that Scott waived his due process
argument by failing to include it in his statement of points for appeal.  We disagree with the
State's argument regarding waiver.  The statement of points for appeal required by Section
263.405(b) refers to the merits of the appeal, not to issues relating  to  the  hearing  required 
by Section 263.405(d).  See Tex. Fam. Code Ann. § 263.405(b), (d) (Vernon Supp. 2006).
	Determining what process is due in a particular proceeding requires consideration of
three factors: (1) the private interest affected by the proceeding or official action; (2) the
countervailing governmental interest supporting use of the challenged proceeding; and (3)
the risk of an erroneous deprivation of that interest due to the procedures used.  Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).  "One of the legislature's
goals in enacting chapter 263 is to obtain a permanent home for a child under [Department]
care as quickly as possible."  In re R.J.S., 219 S.W.3d 623, 628 (Tex. App.--Dallas 2007, pet.
denied).  In In the Interest of B.L.D., the Supreme Court held that rules governing error
preservation for sufficiency review in a termination proceeding do not deprive a parent of
due process.  In the Interest of B.L.D., 113 S.W.3d 340, 354 (Tex. 2003).  On the other hand,
counsel's unjustifiable failure to preserve a sufficiency issue for review may deprive a parent
of due process.  In the Interest of M.S., 115 S.W.3d 534, 548 (Tex. 2003).  Here, the issue
is whether limiting  the  scope  of  our  review  to  the  record  of  the  hearing  held  under 
Family  Code § 263.405(d), as clearly contemplated by the legislature, deprives the parent
of due process, particularly when new counsel has been appointed since trial.
	The legislature created a process in which the terminated parent, with benefit of
counsel, may identify the issues for appellate review and identify the evidence supporting the
issues.  See Tex. Fam. Code Ann. § 263.405.  Scott's counsel argued that the statute was
unfair because that attorney did not attend the trial.  Counsel acknowledged that she had
spoken with trial counsel, who advised her on the issues for the appeal, and with Scott, who
testified at the post-trial hearing.  Thus, Scott's counsel was not compelled to blindly guess
what issues to include in the statement of points and what evidence had been developed at
trial, but could determine the potential issues and describe for the record the evidence
germane to the stated issues.  From the record of the hearing on the statement of points, we
can discern both the State's allegations and evidence supporting the grounds for termination
and the evidence supporting Scott's arguments on his appellate issues.
	The Department's counsel referred to evidence that would support the judgment, as
follows: (1) Scott abused illegal drugs with Perkins during her pregnancy; (2) Scott was
aware of Perkins's mental illness and did not attempt to help her get treatment during her
pregnancy; (3) following the birth of A.S., Scott continued to use illegal drugs although he
was on parole from a life sentence; (4) the one time Scott visited A.S. while A.S. was in
Department custody, he failed a drug screen; (5) Scott told the Department worker that he
would not visit the child because the Department required a drug screen and his parole
officer would  receive notice when he failed the drug screen; (6) based in part upon his
conviction for two more crimes, Scott's parole was revoked when A.S. was five months old;
(7) Scott failed to establish that he had a suitable residence for the child; and (8) Scott did
not secure a relative who would care for the child during Scott's incarceration.  At the
hearing, Scott conceded that he does not have a relative who could take immediate
possession of A.S. but testified that he believed he would be released from prison in February
2008.  According to Scott, he could not provide a suitable home for A.S. because the child's
birth occurred soon after Hurricane Rita caused him to be financially disadvantaged.  Scott
also claimed that at the time of removal he had relatives who could have taken A.S. in but
that the Department placed the child with one of Perkins's relatives instead.  Scott did not
find employment, as required by the service plan, because he was under a doctor's care at the
time.  Scott also testified that he was familiar with caring for children because he had been
around nieces and nephews.
	The evidence described in the hearing does not present a substantial question for
appellate review.  The Department described evidence that would support its alleged grounds
for termination.  Scott did not identify evidence from the trial that would arguably support
an argument that the jury could not reasonably have formed a firm belief  or conviction as
to the truth of the allegations.  It would serve no useful purpose to further delay the resolution
of this appeal and to leave A.S.'s future in limbo so that a reporter's record could be prepared
when that record will not show that Scott completed the plan for reunification or that Scott
or someone acting in his stead is presently able to raise A.S.  Scott has not shown that due
process requires that we order the court reporter to prepare and file the reporter's record of
the entire trial before we review the trial court's ruling that an appeal would be frivolous. 
We hold that in the circumstances presented in this appeal the trial court did not err in ruling
that Scott is not entitled to a free reporter's record.
	No substantial issue is presented for appellate review.  The judgment is affirmed.
	AFFIRMED.

							______________________________
								STEVE McKEITHEN
								        Chief Justice

Submitted on September 13, 2007
Opinion Delivered October 11, 2007

Before McKeithen, C.J., Gaultney and Horton, JJ.


DISSENTING OPINION

	In a unanimous en banc opinion, the Second Court of Appeals in In re M.R.J.M., 193
S.W.3d 670 (Tex. App.--Fort Worth 2006, no pet.) wrote:  
	Under the Texas Constitution, the courts of appeals have been granted the
power to conduct conclusive appellate review of all factual sufficiency
questions that are properly presented on appeal.  In cases where an indigent
appellant timely files a statement of points complaining that the evidence is
factually insufficient to support a termination finding, and challenges on
appeal the trial court's determination that an appeal raising such a complaint
is frivolous, this constitutionally assigned power requires us to review all of
the evidence to determine whether a substantial question exists as to whether
the termination finding is supported by factually sufficient evidence.  The
legislature cannot take away this power or interfere with our exercise of it. 
Any attempt to do so would be null and void.

Id. at 675-76.  That Court ordered a reporter's record of the evidence prepared.  This Court
should do the same.  Because the statute authorizes courts of appeals to issue "appropriate
orders," the statute recognizes the Court's authority to order a record of all of the evidence
when necessary to review a trial court's determination that an appeal raising a factual
sufficiency point is frivolous.  See Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2006). 
For that reason, the statute is not unconstitutional under the separation of powers clause of
the Texas Constitution.  In re M.R.J.M., 193 S.W.3d. at 676.  The "appropriate order" under
the circumstances is to require the record of the evidence transcribed and filed.  An appellate
court cannot determine whether a factual sufficiency issue is frivolous without reviewing the
evidence.  
	The Texas Supreme Court has emphasized that "[t]ermination of parental rights is
traumatic, permanent and irrevocable. . . . For this reason, any significant risk of erroneous
deprivation is unacceptable."  In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).  The factual
sufficiency challenge may be assumed to be a losing issue based on the summaries presented
at the post-trial hearing.  The assumption carries an unacceptable risk when the evidence is
disputed.  The Department's arguments may seem strong in this or in the next case.  But can 
appellate counsel, competent as she is, adequately challenge a frivolous finding on a factual
sufficiency issue without access to a reporter's record?  See, e.g., Hardy v. United States, 375
U.S. 277, 279-80, 84 S.Ct. 424, 11 L.Ed.2d 331 (1963) (New counsel representing indigent
defendant in criminal appeal could not adequately discharge his duty without having the
entire transcript available for his reading.).  
	When the appeal is from the trial court's determination that the sufficiency complaint
is frivolous, section 263.405 should be construed in a way that allows review of the
evidentiary record to determine factual sufficiency.  In re M.R.J.M., 193 S.W.3d at 676 . 
Because the Court does not order the reporter's record of the evidence presented at trial, and
does not review the trial record in determining that the factual sufficiency complaint is
frivolous, I respectfully dissent.

								______________________________
									DAVID GAULTNEY
									          Justice

Dissent Delivered 
October 11, 2007
1.  Although we permitted the appellants to file briefs, no briefs are required for
appellate  review  of  the  trial  court's  order  in  indigence.   See  Tex.  Fam.  Code  Ann.
§ 263.405(g) (Vernon Supp. 2006).  As permitted by Section 263.405(g), we consider the
appeal without requiring a brief from Perkins.
2.  The trial court noted that the ruling on indigence would apply to Perkins's right to
an appointed attorney, but the record does not include an order allowing counsel to withdraw.
