

Affirmed and Opinion filed November 17, 2009.
 
In The
 
Fourteenth Court of
Appeals
                                                                                          

NO. 14-08-01074-CV
NO. 14-08-01091-CV
NO. 14-08-01129-CV

 
In the Interest of J.J.C.;
IN THE INTEREST OF K.J.S.;
AND IN THE INTEREST OF J.J.R.

On Appeal from the 311th District
Court
Harris County, Texas
Trial Court Cause Nos. 2001-51040;2001-63812;2000-31212

 
OPINION
 
The mother of three children and the father of one of
the children appeal the termination of their respective parental rights. 
Because we conclude that the trial court did not err in determining that
termination of parental rights is in each child’s best interest, and the
parents’ remaining challenges are waived, we affirm.  
I.  Factual and Procedural
History
The events that led to the termination of appellants’
parental rights did not begin with the State’s most recent investigation; this
was the third time that the Department of Family and Protective Services
(“DFPS” or “the Department”) had been called upon to investigate allegations of
neglect or abuse of these children, and the second time they were removed from
their home.  Because all of the investigations are relevant to the issues we
address, we include in our discussion the evidence introduced at trial of all
three incidents.  To protect the children’s privacy, we refer to eight-year-old
J.J.C. (a/k/a J.J.H. a/k/a J.J.M.) as “Jack,” seven-year-old J.J.R. as “Jill,”
and six-year-old K.J.S. as “Kevin”;[1]
we refer to the children’s mother only as “Mother” and to Kevin’s father as “Father.” 
The respective fathers of Jack and Jill have not appealed the termination of
their parental rights.
A.        2001
Investigation
In late summer or early autumn 2001, it was alleged
that Father picked up Mother and Kevin from a hospital where Mother had taken
the infant[2]
for treatment of cold symptoms.  Once they were in the car, Father allegedly
hit Mother repeatedly in the face and the side of her head.  Mother sustained no
visible injuries, and the Department was unable to determine that the children
were neglected or abused.  
B.        2002
Investigation
On August 20, 2002, the Department received a
referral regarding neglectful supervision and physical abuse of all three
children by Mother and Father.  According to the Department employee who
interviewed Mother, 
[Mother stated that Father] jumped on her and pushed her
head down into the sofa and she was unable to breathe.  She stated that she
fought with [Father] and was finally able to get him off of her.  She stated
then she hit [Father] with her fist.  She stated that [Father] then threw two
large boxes of clothing at her.  She stated that her one-year-old son [Kevin]
was playing on a plastic slide about two feet from the ground and [Father]
knocked [Kevin] off the slide and she caught [Kevin] before he fell onto the
floor.  [Mother] stated then [Father] stabbed her in the shoulder with a
screwdriver.  She stated then she ran to the kitchen for a knife to cut [Father’s]
car tires.  She denied that [Father] threatened her with a gun; [but] she
stated that once [Father] showed her his gun, she threw the knife down.  
Jack, who was three years old
at the time, corroborated these allegations:
[Jack] stated that his daddy choked his mother’s neck and
put a gun to her eye and daddy told his mommy that he was going to kill her. 
He stated that he told his daddy to get off his mommy and then his daddy
stopped.  He stated that his mother had a big knife and she tried to cut his
daddy’s tires on the car.  
At the time of the 2002 interview,
all of the children were free of marks or bruises and appeared to be well-cared
for and developmentally on target.  The Department determined there was reason
to believe that Father abused Kevin, but was unable to determine that Jack and
Jill were abused.  All three children were removed from Mother’s home for less
than two weeks, and although the Department initially sought termination of the
parents’ rights to the children, the case was nonsuited.  
            In the time between
the first and second investigations, Father was convicted of criminal mischief
in an incident that, according to Father, concerned a domestic disturbance with
Mother.  Between the second and third investigations, Father was convicted of
possession of marijuana.
C.        2007
Investigation
On Friday, April 27, 2007, Child Protective Services
(“CPS”) was alerted that Jack, Jill, and Kevin—then aged eight, seven, and six—were
without adequate adult supervision.  According to Mother, she had been involved
in a dispute with another woman and believed that the conflict made it unsafe
for the children to walk home alone from the school bus stop nearest to their
apartment.  She therefore had arranged for the children to ride the school bus
to their maternal grandmother’s house, but on this day, the children’s
grandmother wanted to go to a club and refused to let the children in.  Kevin’s
father lived nearby,[3]
so the children went to his apartment, crossing a major intersection to do so. 
Kevin’s father was not home, so the children began walking to their own home,
which was ten or twelve blocks away on a major street in a high-crime area.  They
were intercepted by one of Mother’s friends who lived nearby.  While they were
speaking with the neighbor, Kevin’s father saw the children.  Local police were
called, and Jack and Jill were taken into emergency custody; Kevin was left
with his father.
At 9:30 p.m., Mother contacted authorities to report
the children missing.  It is reported that her voice was slurred, and she was
suspected of being under the influence of an intoxicating substance.  At
approximately 11:30 p.m., she went to Father’s apartment and demanded that he
return Kevin.  He refused, and according to Father and witnesses, Mother
threatened Father with a knife.  Police were called, and Mother was charged
with aggravated assault with a deadly weapon.  
Mother was allowed to retrieve the children the next
day, and on May 1, 2007, she was interviewed by a Department caseworker. 
Mother denied that she used drugs, but stated that someone might have put
something in her drink.  She submitted to urinalysis testing on May 2, 2007,
and tested positive for cocaine, marijuana, and benzoids.  On May 4, 2007, a
caseworker visited the home where the children resided with Mother, and found trash
on the floor, dishes in the sink, and the home so cluttered it was difficult to
walk through it.  The children were taken into custody, and after they were
removed from their home, all three children reported sexual abuse by male
members of Mother’s family.  
Mother initially was incarcerated on the assault
charges, but she eventually accepted deferred adjudication, and on November 27,
2007, she entered a halfway house for drug rehabilitation.  While there, she wrote
letters to the children, remained in telephone contact with the children’s
caseworker, and was allowed some visitation.  Although she had not completed
her assigned classes and programs, Mother left the facility on May 19, 2008,
asserting that she had been sexually assaulted by the facility’s director.  On
July 16, 2008, Mother was incarcerated for violating the terms of her community
supervision; she was still incarcerated at the time of trial.  She had no
visitation with the children during either period of incarceration.  
During this time, Father completed a parenting class
and was allowed two visits with Kevin in August 2007; however, future visits
were discontinued due to their negative effect on Kevin’s behavior.
D.        Trial
After a bench trial in October 2008, Father’s
parental rights to Kevin and Mother’s rights to all three children were
terminated, and the Department was appointed as the children’s sole managing
conservator.  The trial court found that each parent constructively abandoned
the children and failed to comply with a court-ordered family service plan, and
that termination was in the children’s best interests.  See Tex. Fam. Code Ann. §§ 161.001(1)(N) (addressing
constructive abandonment as a ground for termination); 161.001(1)(O) (addressing
failure to comply with court-ordered service plan as a ground for termination);
161.001(2) (addressing requirement that termination be in the child’s best
interest) (Vernon 2009).  In addition, the trial court found that Mother failed
to complete a court-ordered substance abuse treatment plan.  See id. §
161.001(1)(P).  The day after the judgment was signed, Father filed a
motion for new trial and a separate statement of points on appeal;[4]
Mother timely filed a combined new-trial motion and statement of appellate
points.  See id. §§ 263.405(b), (b-1).  Both parents also filed
indigency affidavits.
As required by law, the trial court held a hearing to
determine if a new trial should be granted, the indigency claims should be
sustained, and if the proposed appeals were frivolous.  See id. §
263.405(d).  At the hearing, counsel for each parent argued that there was
legally and factually sufficient evidence to support the trial court’s findings
under section 161.001(1).  Neither Father’s counsel nor Mother’s counsel
mentioned the trial court’s finding that termination of their parental rights
was in the children’s best interest.  The Department responded as follows:
[T]he Court heard all of the evidence.  The evidence was
overwhelming and voluminous with regards to each one of these issues and by
clear and convincing evidence I believe the Court ruled correctly and I’d ask
the Court to overrule the Motion for New Trial.  With regards to the Points on
Appeal, I’d ask the Court to find that this is a frivolous appeal . . . .[5]
The trial court denied the motions for new
trial, sustained the claims of indigency, and found each parent’s proposed
appeal frivolous.  
II.  Issues Presented
            Mother and Father
each present three issues in which they challenge the legal and factual
sufficiency of the evidence supporting the trial court’s findings that (a) each
parent constructively abandoned his or her child or children, (b) each parent
failed to comply with the provisions of a court-ordered family service plan,
and (c) termination of parental rights is in each child’s best interest. 
Mother presents one additional issue in which she challenges the legal and
factual sufficiency of the evidence supporting the trial court’s finding that
she failed to complete a court-ordered substance-abuse treatment plan.  In two
additional issues, Father challenges the trial court’s finding that his appeal
is frivolous, and asks that if we reverse the termination of his parental rights,
we also reverse the trial court’s appointment of DFPS as Kevin’s sole managing
conservator.
Because a party appealing a judgment in which a
finding of frivolousness was issued is initially limited to a review of that
finding, we may not consider the substantive merits of their legal and factual
sufficiency challenges unless we first conclude that the frivolousness finding
must be reversed.  In re K.D., 202 S.W.3d 860, 865 (Tex. App.—Fort Worth
2006, no pet.) (op. on reh’g).  We therefore construe a parent’s appeal to
encompass a challenge to the frivolousness finding even when the parent does
not specifically assign error to that finding.  See Lumpkin v. Dep’t of
Family & Protective Servs., 260 S.W.3d 524, 525 (Tex. App.CHouston [1st Dist.] 2008,
no pet.) (citing Tex. Fam. Code Ann.
§ 263.405(g)); In re R.C.R., No. 14-08-00904-CV, 2009 WL 997514, at *2
(Tex. App.CHouston
[14th Dist.] Apr. 14, 2009, no pet.) (mem. op.); In re R.A.P., No.
14-06-00109-CV, 2007 WL 174376, at *5 (Tex. App.CHouston
[14th Dist.] Jan 25, 2007, no pet.) (mem. op.).  Accordingly, we construe
Mother’s briefing to include a challenge to the trial court’s finding that her
appeal is frivolous.  
III.  Prerequisites for
Appellate Review
            Most of the issues presented in this appeal turn
on the application of Texas Family Code section 263.405, which provides in
pertinent part as follows:
(b)       Not
later than the 15th day after the date a final order is signed by the trial
judge, a party who intends to request a new trial or appeal the order must file
with the trial court:
(1)       a
request for a new trial; or 
(2)       if an
appeal is sought, a statement of the point or points on which the party intends
to appeal. 
. . .
(d)       The
trial court shall hold a hearing not later than the 30th day after the date the
final order 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. 
. . .
(i)        The
appellate court may not consider any issue that was not specifically presented
to the trial court in a timely filed statement of the points on which the party
intends to appeal or in a statement combined with a motion for new trial. For
purposes of this subsection, a claim that a judicial decision is contrary to
the evidence or that the evidence is factually or legally insufficient is not
sufficiently specific to preserve an issue for appeal.
Tex. Fam. Code Ann. §
263.405.  
Although section 263.405(i) does not prevent an
appellate court from considering certain constitutional complaints that were
not included in a statement of points on appeal,[6]
the parties do not raise such arguments here.  We therefore are limited to
reviewing those issues that were “specifically presented to the trial court in
a timely filed statement of the points on which the party intends to appeal or
in a statement combined with a motion for new trial.”  Id. § 263.405(i). 
Thus, as a threshold matter, we identify the issues preserved by the parents’
respective statements of points on appeal and determine whether the trial court
abused its discretion in finding that an appeal on such grounds would be
frivolous.  
IV.  Sufficiency of Statements of Points on Appeal
            Although Mother’s
statement of points on appeal was combined with her motion for new trial and
Father filed his separately, the points listed are nearly identical.  Each
contends that the trial court erred in entering its judgment terminating his or
her parental rights, because there was (a) “no evidence to support the [trial
court’s] ruling,” (b) “factually insufficient evidence to support the
[trial court’s] ruling on both grounds for termination and on best interest,”
and (c) “legally insufficient evidence to support the [trial court’s] ruling on
both grounds for termination and on best interest.”  
            To satisfy the
requirements of section 263.405(i), a statement of points must be “sufficiently
specific” to allow the trial court to correct any erroneous findings on the
challenged grounds.  Adams v. Tex. Dep’t of Family & Protective Servs.,
236 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  “‘The plain
language of the statute indicates the Legislature intended to bar our
consideration of global, nonspecific claims of evidentiary insufficiency in a
Statement of Points.’”  In re S.K.A., 236 S.W.3d 875, 899 (Tex.
App.—Texarkana 2007), pet. denied, 260 S.W.3d 463 (Tex. 2008) (per
curiam) (quoting In re N.L.G., No. 06-06-00066-CV, 2006 WL 3626956, at
*3 (Tex. App.—Texarkana Dec. 14, 2006, pet. denied) (mem. op.)).  Here, each
parent’s statement lacks the specificity required to preserve the appellants’ arguments
that the evidence was legally and factually insufficient to support the trial
court’s findings that either appellant violated Texas Family Code section
161.001(1)(N), (O), or (P).  Compare In re G.W.P., No. 14-08-00035-CV,
2009 WL 2568292, at *2 (Tex. App.—Houston [14th Dist.] Aug. 20, 2009, no pet.
h.) (mem. op.) (statements challenging the legal and factual sufficiency of the
evidence to support the trial court’s “ruling” lacked the specificity required
to preserve such challenges for review), with In re J.J.W., No.
06-09-00030-CV, 2009 WL 2432634, at *2 n.2 (Tex. App.—Texarkana Aug. 11, 2009,
no pet. h.) (mem. op.) (statement challenging each of six grounds alleged
against parent was sufficiently specific to preserve issues for review), and
In re D.J.E., Nos. 13-08-00319-CV and 13-08-00350-CV, 2008 WL 5196608,
*2 (Tex. App.—Corpus Christi Dec. 11, 2008, no pet.) (mem. op.) (appellant
preserved issues for review by separately challenging each ground for
termination).  Because section 263.405(i) bars our consideration of the merits
of these issues, the trial court’s finding that these points are frivolous is
both correct and immaterial.  
On the other hand, each parent’s statement was sufficiently
specific to preserve appellants’ challenges to the legal and factual
sufficiency of the evidence supporting the trial court’s “best interest”
findings.  See In re S.K.A., 236 S.W.3d at 899 (separate complaints as
to each of the separate grounds of termination and the best-interest finding
satisfy the specificity requirement).  Thus, if the trial court erred in
determining that the parents’ proposed appeals of the best-interest findings
were frivolous, then we may evaluate the merits of that argument.
V.  Frivolousness
A.        Standard of
Review
            Family Code Section 263.405(d)(3) directs the
trial court to determine whether an appeal from a termination order is
frivolous “as provided by section 13.003(b), Civil Practice and Remedies Code.” 
Tex. Fam. Code Ann. § 263.405(d)(3). 
Section 13.003(b) provides that, “[i]n determining whether an appeal is
frivolous, a 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).  An appeal is
frivolous if it lacks an arguable basis either in law or in fact.  See
Lumpkin, 260 S.W.3d at 525.
Parental rights can be terminated only upon proof by
clear and convincing evidence that (1) the parent has committed an act
prohibited by section 161.001(1) of the Texas Family Code, and (2) termination
is in the best interest of the child.  Tex.
Fam. Code Ann. § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009).  Clear and convincing evidence is “proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.”  Tex.
Fam. Code Ann. § 101.007; In re J.F.C, 96 S.W.3d 256, 264 (Tex. 2002).
 
In conducting a legal-sufficiency review in a
parental termination case, a reviewing court looks at all the evidence in the
light most favorable to the finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.  In
re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005). In reviewing termination
findings for factual sufficiency, courts must give due deference to the
factfinder’s resolution of factual questions.  In re C.H., 89 S.W.3d 17,
27 (Tex. 2002).  The court then determines whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of
the allegations against the parents.  Id. at 25.  When the trial court
conducts a frivolousness hearing on a parent’s proposed appeal on legal and
factual sufficiency grounds, the trial court should apply the standard of review applicable to
clear and convincing evidence as set out above.  In re K.D., 202 S.W.3d
860, 867–68 (Tex. App.—Fort Worth 2006, no pet.).  We then evaluate the trial
court’s frivolousness finding under an abuse-of-discretion standard.  Lumpkin,
260 S.W.3d at 526; In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.—San
Antonio 2006, no pet .).
B.        Scope of Review
There is a split of authority concerning an appellate
court’s scope of review when evaluating a frivolousness finding in a case
concerning the termination of parental rights.
One court has held that the appellate court must
review all of the evidence admitted at trial if a party raises a legal or
factual sufficiency challenge that the trial court finds to be frivolous.  See
In re S.T., 242 S.W.3d 923, 925 (Tex. App.—Waco 2008, no pet.) (“[W]e hold
as a matter of due process that, because [father] has raised legal and factual
sufficiency claims, the court reporter shall file a transcription of ‘all of
the evidence admitted’ at trial at no cost to the appellant.”).  
Other courts have held it appropriate to consider the
entire record only if the reviewing court is unable to determine from the
record of the frivolousness hearing alone whether the trial court abused its
discretion in finding the appeal frivolous.  See, e.g., In re T.C., No.
04-09-00126-CV, 2009 WL 2762491, at *1 (Tex. App.—San Antonio Aug. 31, 2009, no
pet. h.); In re M.R.J.M., 193 S.W.3d 670, 674–75 (Tex. App.—Fort Worth
2006, order) (en banc).  
A different court has held that where a parent
challenged the sufficiency of the evidence supporting the trial court’s
best-interest finding and the evidence was neither presented at the
frivolousness hearing nor “apparent” from the termination order, the
appropriate course was not simply to review the entire record when evaluating
frivolousness; instead, the correct procedure was to reverse the frivolousness
finding and address the challenge on the merits.  See In re A.B., 269
S.W.3d 120, 125 (Tex. App.—El Paso 2008, no pet.).  
Still another court has held that a reviewing court
is not required to review the reporter’s record of the trial if, from the
hearing transcript, it can “discern” the allegations against the parents and
the evidence on which the parties rely.  See In re A.S., 239 S.W.3d 390,
392–93 (Tex. App.—Beaumont 2007, no pet.) (due process did not require review
of the reporter’s record of the trial in order to evaluate the frivolousness
finding; “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 [the father’s] arguments on his
appellate issues.”).  
Father implicitly assumes that our review of the
frivolousness finding is limited to the hearing record.  He contends that the Department
“has the burden of proof on the issue of frivolousness and presented no
evidence in this regard, effectively waiving this issue.”  We disagree not only
with his premise, but also with this characterization and the inference Father
has drawn from it.[7] 

The hearing transcript demonstrates that the Department
expressly relied on the trial evidence, and although it is true that the Department
did not repeat the previously offered evidence at the hearing, it was not required
to do so.  The same judge conducted the trial and the frivolousness hearing; thus,
the trial court is presumed to “judicially know[] what has previously taken
place in the case” tried before it, and the parties “are not required to prove
facts that a trial court judicially knows.”  Vahlsing, Inc. v. Mo. Pac. R.R.
Co., 563 S.W.2d 669, 674 (Tex. App.—Corpus Christi 1978, no writ). 
Moreover, the hearing record establishes that the
trial court did not limit its consideration to matters presented at the hearing;
like the Department, the trial court also considered the proceedings at trial. 
This is demonstrated by the following exchange, which took place after the
trial court heard argument regarding Mother’s combined motion for new trial and
statement of points on appeal:
Court:             All
right.  Can you just stand[] by a minute?  I want to get my notes from the
trial.  I’ll be right back.
(Recess taken)
Court:             [Mother’s
Attorney], can I see your points again a second so I can look at them in the
context of my notes?
                                    All
right.  Anything further?
. . .
State:              The
same response on the Points on Appeal, Judge.  We would ask the Court to deny
the Points on Appeal and also find that this appeal is frivolous based upon
the totality of the evidence that the Court heard with regards to all of
the Points on Appeal.
. . .
Court:             Well,
as to [Mother’s] Motion for New Trial, the Court is denying her Motion for New
Trial; and as to her Points on Appeal, the Court after reviewing its notes
and hearing the argument of counsel also finds that appeal is frivolous.
(emphasis added).
Finally, Father’s waiver argument is unpersuasive in
that the trial court is required by statute to determine whether such proposed
appeals are frivolous, regardless of whether the Department requests such a
finding or presents any argument or evidence.  See Tex. Fam. Code Ann. § 263.405(d)(3); see
also In re T.A.C.W., 143 S.W.3d 249, 250 (Tex. App.—San Antonio 2004, no
pet.) (remanding case for trial court’s determination of whether appeal is
frivolous).  Thus, the Department did not waive this issue as Father contends.  See
In re M.G.D., 108 S.W.3d 508, 516 (Tex. App.—Houston [14th Dist.] 2003,
pet. denied) (section 263.405’s purpose is to reduce post-judgment appellate
delays); cf. Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 105–06
(Tex. 1977) (waiver “cannot be invoked to nullify a mandatory statutory
restriction, especially when such restriction is enacted for the benefit of the
general public as opposed to those benefits that inure to a private
individual”); Sartin v. Hudson, 143 S.W.2d 817, 823 (“A right or
privilege given by statute may be waived or surrendered, in whole or in part,
by the party to whom or for whose benefit it is given.”).  
On these facts, the clerk’s record and reporter’s
record of the frivolousness hearing are insufficient to allow us to determine from
the hearing record alone whether the trial court acted within its discretion.  See
In re T.C., No. 04-09-00126-CV, 2009 WL 2762491, at *1.  Because the
hearing transcript establishes that the Department relied “on the totality of
the evidence” presented at trial and the trial court likewise considered the
trial proceedings in evaluating the frivolousness of the proposed appeals, our
review of the material on which the trial court based its finding necessarily includes
evidence from the trial.  
D.        Mother’s Appeal
            The determination
of a child’s best interest does not require proof of any unique set of factors,
nor does it limit proof to any specific factors.  See Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976).  In reviewing the sufficiency of the
evidence to support a best-interest finding, courts consider, inter alia,
(1)       the child’s age and physical and mental
vulnerabilities; 
(2)       the frequency and nature of out-of-home
placements; 
(3)       the
magnitude, frequency, and circumstances of the harm to the child; 
(4)       whether
the child has been the victim of repeated harm after the initial report and
intervention by the department or other agency; 
(5)       whether
the child is fearful of living in or returning to the child’s home; 
(6)       the
results of psychiatric, psychological, or developmental evaluations of the
child, the child’s parents, other family members, or others who have access to
the child’s home; 
(7)       whether
there is a history of abusive or assaultive conduct by the child’s family or
others who have access to the child’s home; 
(8)       whether
there is a history of substance abuse by the child’s family or others who have
access to the child’s home; 
(9)       whether the perpetrator of the harm to the child
is identified; 
(10)     the
willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate
agency’s close supervision; 
(11)     the
willingness and ability of the child’s family to effect positive environmental
and personal changes within a reasonable period of time; 
(12)     whether
the child’s family demonstrates adequate parenting skills, including providing
the child and other children under the family’s care with: 
(A)      minimally
adequate health and nutritional care; 
(B)      care,
nurturance, and appropriate discipline consistent with the child’s physical and
psychological development; 
(C)      guidance
and supervision consistent with the child’s safety; 
(D)      a safe
physical home environment; 
(E)       protection
from repeated exposure to violence even though the violence may not be directed
at the child; and 
(F)       an
understanding of the child’s needs and capabilities; and 
(13)     whether
an adequate social support system consisting of an extended family and friends
is available to the child. 
Tex. Fam. Code Ann. §263.307(b).  Courts also may consider
(1) the desires of the child, (2) the present and future physical and emotional
needs of the child, (3) the present and future emotional and physical danger to
the child, (4) the parental abilities of the persons seeking custody in
promoting the best interest of the child, (5) the programs available to assist
these individuals to promote the best interest of the child, (6) the plans for
the child by the individuals or agency seeking custody, (7) the stability of
the home or proposed placement, (8) acts or omissions of the parent which may
indicate the existing parent-child relationship is not appropriate, and (9) any
excuse for the parent’s acts or omissions.  Holley, 544 S.W.2d at 371–72.
            As previously
discussed, an appeal is frivolous if it lacks an arguable basis in fact or
law.  Here, however, Mother presented no argument to the trial court concerning
her stated intent to challenge the sufficiency of the evidence supporting the
trial court’s best-interest findings.  At the frivolousness hearing, her
attorney never mentioned her children’s best interests, the trial court’s
best-interest findings, or her proposed appeal of these findings.  On appeal, Mother
cites testimony by two witnesses and argues only that “[t]he entire Reporter’s
Record is barren of meaningful questions and answers as it relates to
the non-exhaustive list as announced in [Holley] or as codified in
[section] 263.307 of the Texas Family Code.” (emphasis added).  
The reporter’s record, however, contains abundant
evidence relevant to the determination of the children’s best interests,
although the evidence is not necessarily in “question-and-answer” form.  It
includes criminal, medical, and agency records; notes from interviews of
relatives, neighbors, teachers, and foster parents; and voluminous records from
the children’s therapists.  When the totality of the evidence is considered,
the evidence relevant to the children’s best interests includes the following:
·                   
This is the third investigation by the Department of Family and
Protective Services of possible abuse or neglect of these children, and the
second time they have been removed from Mother’s possession.
·                   
In a “Call Narrative,” it is noted that “the children in the home
had minimal adult supervision and the environment was highly sexualized.” 
These conclusions are amply supported by the record.
·                   
Jill disclosed in therapy sessions that her brothers and cousins
“sexually acted out together because they had viewed a sex movie that belonged
to their mom and her boyfriend.  [Jill] also reports that her mom had sex with
her boyfriend in front of the children.  And, one time her mom’s boyfriend
raped her mom, while [Jill] was watching.”  In foster care, seven-year-old Jill
was repeatedly redirected from dancing in an inappropriate and sexual manner. 
According to Jill, her mother taught her to dance that way.  For a year after
entering foster care, Jill had nightmares with sexual content several times
each week; in particular, she dreamed about inter-family rape. 
·                   
Jack reported to his therapist that “[w]hen living with his
mother she often had wild parties” and an adolescent male sexually assaulted him
in his own home.  
·                   
Jack demonstrated how the offender had sex with him, and while at
school, Jack “constantly sp[oke] of being raped.”  Jack and Jill each
identified the offender as “Wink,” Mother’s nephew or cousin.  Nevertheless, when
asked at trial if Wink had sexually assaulted Jack on several occasions while
in her possession, Mother answered, “No.”
·                   
Kevin also reported that “a raper” touched his penis, and identified
the offender as a fifteen-year-old male known as “Baby Boy.”
·                   
According to a caseworker, Jack reported that “his mother often
would burn him when she became angry, and it appeared that he was the scapegoat
of the family.”  Jack reportedly told caseworkers or foster family members that
Mother would burn him when she was angry at her boyfriend.  He pointed out a
scar on his leg from such an incident.
·                   
Although Jack stated that he wanted to live with his mother, it
was repeatedly noted that Jack became angry and aggressive when told he would
be visiting her.
·                   
During visits, Mother singled out Kevin for “constant praise” of
his physical appearance.  The other two children did not receive similar
attention.  Around the same time, Kevin was suspended from school for three
days “because of his obsession with kissing the girls, gestures, references to
and making recommendations of acts to his private parts and his constant use
[of] profane language.”  His sexual  behavior was not directed solely to his
peers: Kevin also touched his female teachers inappropriately and exposed himself
in his foster homes.
·                   
The children’s behavior deteriorated after visiting their
mother.  
·                   
Jill is in a stable placement with a family that hopes to adopt
her.  She has been learning to behave in a more age-appropriate manner.  
·                   
As a result of their more serious problems with aggression and
sexual acting-out, Jack and Kevin have been in multiple foster homes.  Jack has
been diagnosed with mood swing disorder, attention-deficit hyperactivity
disorder, post-traumatic stress disorder, and mild mental retardation.  Kevin
has been diagnosed with post-traumatic stress disorder and suffers from hallucinations
and severe sleep disturbances, often sleeping only three or four hours per
night.  Jack was placed in a psychiatric hospital once, and Kevin has been
hospitalized twice.  Both have problems with bedwetting, nightmares,
aggression, repeated profanity and sexual references, and touching or shoving
female peers in sexual ways.  Both are receiving therapy to help them cope with
their sexual abuse.  
·                   
At the time of trial, Mother had not contacted the children’s
caseworker in three months.
·                   
Mother has bipolar disorder, severe depression, and a history of
drug abuse.  She is mentally retarded, as is her mother, grandmother, and four
of her eight siblings.  She has had repeated contact with sexual offenders and
lacks effective support from family members for successful parenting.  Jack’s
father, for example, was convicted of sexual assault of a child, and the people
identified as having sexually assaulted her sons are members of her family.  Although
she spent years in Child Protective Services’ custody as a child due to neglect
by her own mother and sexual abuse by family members, she nevertheless
entrusted her own children to her mother’s care.  
·                   
Between April 27, 2007 and October 2008, Mother committed
aggravated assault with a deadly weapon; was incarcerated for six months before
entering an agreement for deferred adjudication and moving to a halfway house;
attempted suicide; left the halfway house where she was undergoing drug
treatment; violated the terms of her probation; and was incarcerated again. 
She blames others for each of these events.   
            We conclude that
the trial court did not abuse its discretion in finding that Mother’s challenge
to the legal and factual sufficiency of the evidence supporting the
best-interest finding does not present a substantial question for appellate
review.  We therefore affirm the trial court’s finding that Mother’s appeal is
frivolous and do not reach the merits of her appeal.  
E.        Father’s Appeal
            Like Mother’s trial attorney, Father’s
counsel presented no argument at the frivolousness hearing concerning Father’s
challenge to the trial court’s finding that termination of his parental rights
is in Kevin’s best interest, and the Department continued to refer the court to
the evidence presented at trial.  On appeal, Father, like Mother, directs his
arguments primarily to trial testimony while overlooking much of the evidence
presented through trial exhibits.  For example, he states that “[t]here is no
mention in the entire record of any act or omission on [Father’s] part that
caused his child to come into DFPS care.”  He further asserts there is no
evidence that he “ever posed a risk” to Kevin; no competent evidence regarding
his ability to maintain a stable environment;[8]
and no direct evidence of Kevin’s desires.  
The record does not support Father’s contentions
because it includes evidence of the following:
·                   
Both prior reports to the Department concerned Father’s violent behavior. 
Both prior incidents took place in Kevin’s presence; in one of them, Kevin was
one of the victims.  That incident prompted Child Protective Services to remove
the children from the home in 2002.  The Department ruled out physical abuse of
Jack and Jill, but concluded there was moderate reason to believe Father had
physically abused Kevin.  Kevin was one year old at the time.  
·                   
Father has been diagnosed with paranoid schizophrenia and has
auditory hallucinations.  Although the hallucinations are controlled with
medication, he does not always choose to take his medication as directed.  
·                   
At one point during the pendency of this case, Father represented
to the Department that he lived with his parents.  During a home visit,
however, it was observed that Father knocked on the front door when he arrived
at the apartment, and an investigator testified that she did not believe Father
was actually living there.  During that visit, Father’s mother appeared fearful
of him and told investigators that when Father is angry, he is “very out of
control.”
·                   
Father’s testimony was markedly confused.  He testified that the
incident in which Mother failed to pick the children up from school did not
occur on April 27, 2007, but “days before then,” and that Kevin had been left
in his care between one and two-and-one-half weeks before this incident.  He
agreed, however, that the day Mother threatened him with a knife was the same
day that the children were not picked up from the bus stop.  He testified that
Kevin told him that he, Kevin, had been sexually assaulted by one of Mother’s
boyfriends, and claimed that when Kevin said this, Father called the police and
Child Protective Services.  According to Father, all of these conversations occurred
on the day that the children were not met at the school bus stop.  But Father
then testified that before Kevin was removed from his mother’s possession, Father
did not know that Kevin had been molested.  And when the trial court asked, “He
[Kevin] never told you directly anything?” Father answered, “No, ma’am.”  Aside
from Father’s contradictory testimony, there is no evidence in the record that Father
reported Kevin’s sexual abuse to anyone at any time. 
·                   
Father completed a parenting class and his therapist noted his
commitment in keeping therapy appointments in order to obtain permission to
visit Kevin.  Nevertheless, after his two visits with Kevin in August 2007, the
Department stopped further visits because Kevin’s bedwetting and “acting out”
increased and he began soiling himself.
·                   
No evidence was found in the record that Kevin has ever expressed
a desire to live with Father or stated that he missed him; to the contrary, Kevin
stated that he wanted to live with his mother or his foster mother.  
·                   
At the time of trial, Father was living with and engaged to a
woman who was convicted of aggravated assault, and the lease is in her name. 
Father does not believe his girlfriend’s conviction is important because the
victim was an adult.
·                   
Father purportedly told a psychiatrist that he attempted suicide
while this case has been pending. 
·                   
Father has not worked since April 2, 2007, but he has been
receiving disability payments since February 2008.  He told the caseworker that
he spends about $20 a day eating out, which is considerably more than he
receives.  It therefore does not appear that he contributes financially to the
support of a second child, conceived and born while Kevin has been in foster
care. 
            On this record,
there is no arguable basis, in fact or in law, for challenging the sufficiency
of the evidence to support the trial court’s finding that termination of
Father’s parental rights is in Kevin’s best interest.  We therefore conclude
that the trial court did not abuse its discretion in finding Father’s appeal of
the best-interest finding frivolous.  
VI.  Conclusion
            We hold that the
trial court did not abuse its discretion in concluding that each parent’s
appeal of the best-interest findings is frivolous.  Because Mother and Father
failed to present their remaining evidentiary-sufficiency challenges with the specificity
required to preserve them for review, the trial court acted within its
discretion in finding those issues frivolous as well.  We therefore affirm the trial
court’s judgment.
 
                                                                                    
                                                                        /s/        William
J. Boyce
                                                                                    Justice
 
 
 
Panel consists of Justices Anderson and
Boyce. (Former Justice Guzman not participating.




[1]
See Tex. R. App. P. 9.8 (requiring
alias name for child in parental-rights termination cases).


[2]
The record contains conflicting evidence regarding the date of this incident;
Kevin was between  three months and five-and-one-half months old at this time. 


[3]
Mother and Father had not married and had always maintained separate
residences.


[4]
Because Father’s statement of points on appeal initially was not included in
the record, he urged us to construe his motion for new trial to encompass the
required statement; however, in response to an order from this court, the clerk
of the trial court produced Father’s statement of appellate points in a
supplement which we received after oral argument. 


[5]
Although this excerpt is taken from the State’s response to Mother’s combined
motion for new trial and statement of points on appeal, the State’s response to
Father’s arguments is virtually identical.


[6]
See In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009); In re D.W.,
249 S.W.3d 625, 632 (Tex. App.—Fort Worth 2008), pet. denied, 260 S.W.3d
462 (Tex. 2008) (per curiam).


[7]
We further note that this argument is inconsistent with Father’s action in
filing a written request that a transcript of the trial proceedings and copies
of all trial exhibits be included in the appellate record.  See Tex. Fam. Code Ann. § 263.405(g).


[8]
Father’s testimony establishes that he moved at least three times in the
seventeen months between Kevin’s removal and trial; during that time, Kevin was
placed successively in four foster homes.  Thus, the evidence is such that a
reasonable fact finder could firmly believe that neither Father nor the Department
has been able to provide Kevin with a stable home.  See In re C.T.E., 95
S.W.3d 462, 468 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (noting that
the Department did not provide a stable home environment to a child placed in
six foster homes over a five-year period).


