

Affirmed and Opinion filed September
16, 2010.
 
In
The
Fourteenth
Court of Appeals

NO. 14-09-00643-CV

In the Interest
of C.L., a Child

On Appeal from
the 310th District Court
Harris County, Texas
Trial Court
Cause No. 2006-18160

 

NO. 14-09-00644-CV

In the Interest
of M.C.G., A Child

On Appeal from
the 310th District Court
Harris County, Texas
Trial Court
Cause No. 2003-19119

 
OPINION
Appellant Lonzell Gholston appeals from the trial
court’s order terminating his parental rights to his daughter, M.C.G., and
removing his status as possessory conservator of M.C.G.’s half-sister, C.L.  We
affirm.
BACKGROUND
M.C.G. and C.L. lived
with their mother until March 2006, when appellee Department of Family and
Protective Services (“DFPS”) removed them from her home.  At the time, M.C.G.
was three years old, and C.L. was fourteen months old.  Their mother often left
them home alone for extended periods of time, and when DFPS arrived to
investigate, they found the children alone and C.L. sick and wearing only a
diaper.  Appellant and the mother were not living together at this time, and
C.L.’s father is unknown.  The children were removed and placed in foster care. 
DFPS was appointed as the sole managing conservator of both children, the mother
was given no possessory rights, and appellant was appointed a possessory
conservator with rights to visit the children at mutually agreeable times.
Appellant visited the girls frequently and maintained
his relationship with them until September 2, 2008, when the trial court
entered an order suspending his visitation rights.  The order was entered after
the girls returned from a visit with appellant and reported to their foster
parents that they had gone to a birthday party and seen their mother, who was
prohibited from any contact with the children, and seen a cousin that M.C.G.
reported had sexually abused her (although there is no evidence that she
reported the abuse before she saw him at the party).  Further, C.L. had been
hospitalized with an asthma attack after appellant smoked during a visit.  Appellant
did not appeal from this order suspending his visitations rights and has never
taken any action to have his visitation rights reinstated.
Two days after the order suspending visitation, DFPS
filed a motion to modify conservatorship and to terminate the parent-child
relationship.  DFPS sought, among other things, to remove appellant as
possessory conservator of C.L. and to terminate his parental rights as to
M.C.G.  After a hearing, the court granted the motion and also terminated the
parental rights of the children’s mother and the unknown father of C.L. 
Appellant brings this appeal; appellant is the only party challenging the trial
court’s order.
ANALYSIS
A.   
 Parental Rights to M.C.G. 
The termination of
parental rights is a serious matter that implicates fundamental constitutional
rights.  In re S.N., 287 S.W.3d 183, 186 (Tex. App.—Houston [14th Dist.]
2009, no pet.).  To terminate parental rights, the trial court must find, by
clear and convincing evidence, that the parent has committed one of the acts
prohibited under Family Code section 161.001(1) and that termination of
parental rights is in the child’s best interest.  Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2009); In
re A.V., 113 S.W.3d 355, 362 (Tex. 2003).  
The trial court terminated appellant’s parental
rights after finding that he committed three of the acts listed in section
161.001 and that termination would be M.C.G.’s best interest.  Appellant then,
pursuant to Family Code section 263.405, submitted to the trial court a
statement of the points on which he intended to appeal.  See Tex. Fam. Code Ann. § 263.405(b)(2)
(Vernon 2008).  Appellant’s appellate points stated that the evidence is
insufficient to support the three actions found pursuant to subsections of
section 161.001(1) but did not mention the court’s finding that termination is
in M.C.G.’s best interest.  The trial court then determined that appellant’s intended
appeal did not present a substantial question for appellate review and was
therefore frivolous.  See Tex.
Fam. Code Ann. § 263.405(d)(3) (Vernon 2008) (directing trial court to
determine whether appellate points are frivolous as provided by Civil Practice
and Remedies Code section 13.003(b)); Tex.
Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002) (stating that
frivolousness can be determined by considering “whether the appellant has
presented a substantial question for appellate review”).
If a trial court makes a frivolousness finding, the
parent’s appeal is initially limited to the frivolousness issue.  See In
re J.J.C., 302 S.W.3d 436, 442 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied); Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d
524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.).  We can review
appellant’s substantive issues only if we determine the trial court abused its
discretion in determining appellant’s appeal was frivolous.  See In
re J.J.C., 302 S.W.3d at 442; Lumpkin, 260 S.W.3d at 526.  An appeal
is frivolous if it lacks an arguable basis in either fact or law.  See In
re J.J.C., 302 S.W.3d at 444; Lumpkin, 260 S.W.3d at 527.
In his appeal regarding M.C.G., appellant argues that
the trial court erred in finding each of his appellate points frivolous.  In
his first issue regarding M.C.G., appellant argues that the trial court abused
its discretion in finding frivolous his appellate point that the evidence is
insufficient to support the termination of his parental rights under Family Code
section 161.001(1)(F).  Section 161.001(1)(F) provides for involuntary
termination of parental rights if the court finds by clear and convincing
evidence that the parent has “failed to support the child in accordance with
the parent’s ability during a period of one year ending within six months of
the date of the filing of the petition.”  This one-year period must be twelve
consecutive months.  See In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El
Paso 2007, no pet.); In re T.B.D., 223 S.W.3d 515, 518 (Tex.
App.—Amarillo 2006, no pet.).  DFPS filed its motion to terminate on September
4, 2009, and thus the relevant time period is any twelve consecutive months
between March 4, 2007 and September 4, 2009.  See In re E.M.E., 234
S.W.3d at 72.
The undisputed evidence in the record shows that in
the twelve-month period between March 4, 2007 and March 4, 2008, appellant gave
no money whatsoever in support of M.C.G. while earning income of at least
$10,000 in 2007 and $3,500 in the first two months of 2008.  Appellant had the
ability to provide at least some support during these twelve months, but he
provided none.  Appellant argues that DFPS must present evidence of his ability
to pay during each month of the twelve-month period.  See id.; In
re T.B.D., 223 S.W.3d at 518.  The evidence in the record regarding
appellant’s income is not broken down on a monthly basis for the entire time
period.  However, even if appellant was unable to provide support during some
of those months, that will not interrupt the running of the one-year period if he
made no effort to pay during other months in which there is a clear ability to
pay.[1]  See
McGowen v. State, 558 S.W.2d 561, 565 (Tex. Civ. App.—Houston [14th Dist.]
1977, writ ref’d n.r.e.); see also In re C.M.C., No. 11-02-00270-CV,
2003 WL 760678, at *2 (Tex. App.—Eastland Mar. 6, 2003, no pet.) (mem. op.)
(following McGowen); In re S.K.S., 648 S.W.2d 402, 404 (Tex.
App.—San Antonio 1983, no writ) (same).  It is undisputed that appellant had at
least $13,500 in income in the relevant time frame but provided no support at
all.  This is sufficient to support a finding by clear and convincing evidence
of a violation of section 161.001(1)(F).[2] 
See In re R.N.G., No. 11-02-00084-CV, 2002 WL 32344622, at *3 (Tex.
App.—Eastland Dec. 12, 2002, no pet.) (not designated for publication) (finding
parent did not provide support in accordance with ability because she provided
no support at all even though she had some money available); In re S.K.S.,
648 S.W.2d at 404–05 (same).
Appellant asserts that the ad litem told him at some
point not to pay support but instead to use that money to buy furniture for his
apartment.  However, appellant does not explain when he was told this, how much
money he used to buy furniture, and when he bought the furniture.  Furthermore,
any excuse for failing to provide support, such as using the money for another
purpose, is irrelevant in assessing a violation under section 161.001(1)(F).  See
Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976) (concluding that
legislative purpose is best served by interpreting Family Code to mean that an
excuse for act or omission of parent, including failure to support according to
ability, “can be considered by the trial court only as one of the
factors in determining the best interest of the child” (emphasis added)); In
re S.K.S., 648 S.W.2d at 405.  Excuse is pertinent only in the best
interest assessment, and because appellant does not challenge on appeal the
trial court’s finding that terminating his parental rights is in M.C.G.’s best
interest, we cannot consider any excuse he may have for failing to provide any
support.[3] 
See In re S.K.S., 648 S.W.2d at 405 (holding that because appellant did
not challenge the best interest finding, “the contention as to an excuse for
failure to make appropriate support payments is inapplicable”); see also
Holley, 544 S.W.2d at 371.
The trial court could have properly concluded that
appellant’s sufficiency challenge as to the termination of his parental rights
lacked a substantial basis in law or fact.  Thus, the trial court did not err
in finding appellant’s appellant point regarding section 161.001(1)(F)
frivolous.  Accordingly, we overrule appellant’s first issue relating to M.C.G.[4]
B.     Possessory
Rights to C.L. 
In his two issues relating to C.L., appellant
challenges the sufficiency of the evidence to support the trial court’s order
removing his status as C.L.’s possessory conservator.  Under Family Code
section 156.101(a)(1)(A), the trial court can modify an order establishing
conservatorship upon a showing that “the circumstances of the child, a
conservator, or other party affected by the order have materially and
substantially changed” since the rendition of the prior order and that the
modification would be in the child’s best interest.  Tex. Fam. Code Ann. § 156.101(a)(1)(A) (Vernon Supp. 2009).  We
review a trial court’s conservatorship status decisions for an abuse of
discretion.  In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th
Dist.] 2009, no pet.).  A trial court abuses its discretion if it acts arbitrarily
or unreasonably.  Id.; Bates v. Tesar, 81 S.W.3d 411, 424 (Tex.
App.—El Paso 2002, no pet.).  There is no abuse of discretion if some evidence
of a substantive and probative character supports the trial court’s decision,
even if the evidence conflicts.  See In re A.L.E., 279 S.W.3d at
428; Agraz v. Carnley, 143 S.W.3d 547, 554 (Tex. App.—Dallas 2004, no
pet.).  In an abuse of discretion review, the sufficiency of the evidence is not
and independent ground of error but is a factor to be considered in evaluating
the trial court’s exercise of its discretion.  In re A.L.E., 279 S.W.3d
at 427.
In his first issue regarding C.L., appellant argues
that the evidence is insufficient to show a material and substantial change in
circumstances.  In determining whether a material and substantial change has
occurred, the trial court is not confined to rigid or definite guidelines.  Id.
at 428.  The court is looking for evidence of a change since the prior order,
but the law does not require any particular method for proving change of
circumstances.  See id. at 429.  A material and substantial change can
be established by circumstantial evidence, such as if the record shows that the
trial court relied on facts or events occurring after the date of the prior
order.  See id.  The prior order establishing appellant’s
conservatorship status was entered on September 11, 2007.  The hearing on
DFPS’s motion to modify appellant’s conservatorship status was held on June 16,
2009.  Therefore, we assess the record for evidence regarding a material and
substantial change in circumstances between September 11, 2007 and June 16,
2009.  See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no
pet.); Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet.
denied).
The evidence shows several changes during this
period.  Appellant’s visitation rights had been revoked on September 2, 2008,
two days before DFPS filed the motion to modify, from which appellant did not
appeal.  Thereafter, appellant had not seen and had hardly spoken to C.L. for
over nine months.  During the time appellant was allowed visitation, there is
evidence that he allowed C.L.’s mother some access to her, which was forbidden
by court order.[5] 
Further, appellant smoked cigarettes while C.L. visited, even though C.L. has
asthma, and after a visit, C.L. was hospitalized with a severe asthma attack.  Finally,
C.L. was moved to a foster home with her sister, and the foster parents are
providing a safe environment and are meeting C.L.’s needs.  The children have
bonded with their foster family, calling the foster mother “mamma,” and the
foster family is willing to adopt them.  Based on evidence of appellant’s inappropriate
conduct during the visits, his unchallenged loss of visitation rights, his lack
of communication with C.L., and C.L.’s bonding with a foster family who wants
to adopt her and her sister, the trial court did not abuse its discretion in
determining that there had been a material and substantial change in
circumstances since the prior order.  We overrule appellant’s first issue
regarding C.L.
In his second issue regarding C.L., appellant alleges
that the evidence is insufficient to support a finding that removing him as
possessory conservator is in C.L.’s best interest.  The Family Code does not
set forth any factors to be considered in determining whether a change in
conservatorship status is in a child’s best interest.  Bates, 81 S.W.3d
at 433–34.  In the termination of parental rights context, courts typically
consider the non-exhaustive list of Holley factors, which are the desires
of the child, the emotional and physical needs of the child now and in the
future, the emotional and physical danger to the child now and in the future,
the parental abilities of the persons seeking custody, the programs available
to assist these individuals seeking custody, the plans for the children by the
individual seeking custody, the stability of the home, the acts or omissions of
the parent that may indicate that the existing parent-child relationship is
inappropriate, and any excuse for the acts or omissions of the parent.  See
Holley, 544 S.W.2d at 371–72.  We can consider those factors as
appropriate in this context, but other factors are also important in the
conservatorship modification context, such as the child’s need for stability.  See
In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000); Bates, 81 S.W.3d at
433–34.  Further, unlike in the termination context, the parental presumption
does not apply in a modification suit and would not apply in this case in any
event because appellant is not C.L.’s father.  See In re V.L.K., 24
S.W.3d at 339–40.
Appellant asserts that the evidence shows that
removing his conservatorship status is not in C.L.’s best interest.  According
to appellant, his visitation was going well until he lost his visitation
rights.  He had stopped smoking and had taken parenting classes.  He had been
making preparations for the girls to live with him, including getting a new
apartment and furniture.  Though he was unable to fully support the girls at
the time of the hearing, appellant testified that the Veterans’ Administration
would provide him additional resources if he got custody of the girls. 
However, appellant’s analysis ignores other important considerations.  Appellant
lost his visitation rights after C.L. had a severe asthma attack when he smoked
while she visited and after he violated a court order by allowing C.L.’s mother
access to her.  All that remained of appellant’s possessory conservatorship
rights were limited rights to such things as inquiring about C.L.’s well being
and accessing her medical records, but appellant never exercised any of these
rights.  Appellant had essentially no contact with C.L. for about nine months,
and meanwhile, she had bonded with her foster family who was meeting all her
needs and wanted to adopt C.L. and her sister.  Given appellant’s lack of
involvement in C.L.’s life, removing appellant’s possessory conservatorship
status actually preserves the child’s current environment and clears the way
for full adoption and parental rights by the foster family, thereby promoting C.L.’s
need for stability.  We conclude that the evidence is sufficient to support a
conclusion that removing appellant’s possessory conservator status is in C.L.’s
best interest.  Therefore, the trial court did not abuse its discretion in so
finding, and we overrule appellant’s second issue as to C.L. 
CONCLUSION
We conclude that the
trial court did not abuse its discretion in finding frivolous appellant’s
appellate point that the evidence is insufficient to show he failed to provide
appropriate support within his ability to M.C.G.  The trial court also did not
abuse its discretion in finding that there had been a material and substantial
change of circumstances and that removing his status as possessory conservator
would be in C.L.’s best interest.  We affirm the trial court’s order
terminating appellant’s parental rights to M.C.G. and removing his status as
possessory conservator of C.L.
 




                                                                                    
                                                                        /s/        Leslie
B. Yates
                                                                                    Justice
 
 
 
Panel consists of Chief Justice Hedges
and Justices Yates and Boyce.




[1]
Appellant argues that he could not provide support because he became disabled,
but that did not occur until April 2008 and thus has no bearing on his ability
to provide support between March 2007 and March 2008.


[2]
DFPS argues that the trial court’s March 2008 order for appellant to pay child
support, from which appellant did not appeal, constitutes an implicit finding
that he had the ability to pay as a matter of law.  DFPS relies on In re
J.M.M., 80 S.W.3d 232, 250–51 (Tex. App.—Fort Worth 2002, pet. denied),
which relied on the Corpus Christi Court of Appeals ruling in In re R.R.F.,
846 S.W.2d 65 (Tex. App.—Corpus Christi 1992, writ denied).  We note that the In
re R.R.F. decision has been severely criticized, and the Corpus Christi
Court of Appeals has since overruled that decision.  See In re D.S.P.,
210 S.W.3d 776, 780–81 (Tex. App.—Corpus Christi 2006, no pet.) (overruling R.R.F.);
see also In re E.M.E., 234 S.W.3d at 73–74 (noting that In re R.R.F.
has been overruled and following the rule in In re D.S.P.).


[3]
Appellant repeatedly notes that he was not ordered to pay child support during
all of the relevant time frame.  However, a parent has a duty to support his
child, regardless of a court order.  See Tex. Fam. Code Ann. § 151.001(a)(3) (Vernon 2008); Ex
parte Hall, 854 S.W.2d 656, 658 (Tex. 1993).  Further, the trial court
specifically stated in its September 2007 modification order although it was
not making a specific support order at that time, appellant “is still
responsible for the support of the child.”  Finally, any excuse for failure to
support, even the lack of an order, is a factor to be considered only in the
best interest analysis.  See S.K.S., 648 S.W.2d at 405; see also
Holley, 544 S.W.2d at 368, 371.


[4]
We need not address appellant’s second and third issues, in which he challenges
the trial court’s frivolousness finding as to his arguments that two other
bases for terminating his parental rights were not supported by sufficient
evidence.  See In re A.V., 113 S.W.3d at 362; see also Tex. Fam. Code Ann. § 161.001(1).


[5]
Appellant denies that C.L.’s mother had access to him during their visitations,
but the trial court could have disbelieved appellant, and we defer to the trial
court’s resolution of underlying facts.  See In re A.L.E., 279 S.W.3d at
427.


