                                MEMORANDUM OPINION
                                       No. 04-11-00115-CV

                              IN THE INTEREST OF S.L.L., a Child

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-PA-00704
                          Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen Angelini, Justice
                 Rebecca Simmons, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: August 31, 2011

AFFIRMED

           This is an appeal from the trial court’s order terminating Appellant Raven Riley’s

parental rights to her child, S.L.L. The Department of Family and Protective Services filed suit

to terminate Riley’s parental rights to S.L.L. following a shooting that occurred in Riley’s

apartment while S.L.L. was present. Following a non-jury trial, the trial court terminated Riley’s

parental rights. Pursuant to section 236.405 of the Family Code, Riley timely filed a motion for

new trial, a statement of appellate points, and an affidavit of indigence. See TEX. FAM. CODE

ANN. § 263.405 (West 2008). In her statement of appellate points, Riley asserted that the

evidence was factually insufficient to sustain a finding that termination is in the best interest of
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S.L.L. After a hearing, the trial court denied Riley’s request for a new trial and found her points

of appeal to be frivolous. We affirm the trial court’s order.

                                       FRIVOLOUS APPEAL

A. Standards of Review

       1. Clear and Convincing Evidence

       A trial court may involuntarily terminate a parent–child relationship if it finds by clear

and convincing evidence that: (1) the parent has committed at least one of the acts prohibited

under section 161.001(1) of the Family Code; and (2) termination of the relationship is in the

child’s best interest. TEX. FAM. CODE ANN. § 161.001 (West 2008); In re J.L., 163 S.W.3d 79,

84 (Tex. 2005). Although the two elements must be proven independently, “the same evidence

may be probative of both issues.” In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Under the Family

Code, clear and convincing evidence is “the measure or degree of 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 (West 2008); accord In re T.N.S., 230 S.W.3d

434, 438 (Tex. App—San Antonio 2007, no pet.).

       2. Review of Frivolousness Determination

       “[If a] 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.” In re K.D., 202 S.W.3d

860, 865 (Tex. App.—Fort Worth 2006, no pet.) (citing TEX. FAM. CODE ANN. § 263.405(g)

(West 2008)). “In 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) (West 2002); see TEX. FAM. CODE ANN. § 263.405(d)(3) (West 2008).

We review a trial court’s determination that an appeal would be frivolous for an abuse of



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discretion. In re K.D., 202 S.W.3d at 866. “A trial [court] abuses [its] discretion if [it] acts

without reference to any guiding rules or principles,” or acts arbitrarily and unreasonably under

the circumstances. See In re H.R., 87 S.W.3d 691, 702 (Tex. App.—San Antonio 2002, no pet.).

Riley contends the trial court abused its discretion in finding her factual sufficiency appellate

point as frivolous.

       3. Factual Sufficiency

       In reviewing factual sufficiency, we “must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing” and inquire “‘whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction about the

truth of the State’s allegations.’” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (quoting In re

C.H., 89 s.W.3d 17, 25 (Tex. 2002)); accord In re B.T., 954 S.W.2d 44, 46 (Tex. App.—San

Antonio 1997, writ denied). We “consider whether disputed evidence is such that a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96

S.W.3d at 266. “[A] finding is sustained if there is sufficient competent evidence of probative

force to support it.” In re H.R., 87 S.W.3d at 699. The trial court found all of Riley’s points of

appeal to be frivolous including the point at issue in this appeal that the evidence was factually

insufficient to support a finding that termination was in S.L.L.’s best interest.

B. S.L.L.’s Best Interest

       Riley argues that the evidence is factually insufficient to support a finding that

termination is in S.L.L.’s best interest because the only expert testimony admitted at trial

supported the contrary proposition. She does not contest the trial court’s finding that she

knowingly placed or allowed S.L.L. to remain in conditions or surroundings that endangered

S.L.L.’s well-being and engaged in conduct, or knowingly placed S.L.L. with persons who



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engaged in conduct that endangered S.L.L.’s well-being.               See TEX. FAM. CODE ANN.

§ 161.001(1)(D), (E) (West 2008).

       1. Applicable Law

       When considering the best interest of the child, the following non-exhaustive list of

factors are considered:

       (A) the desires of the child; (B) the emotional and physical needs of the child now
       and in the future; (C) the emotional and physical danger to the child now and in
       the future; (D) the parental abilities of the individuals seeking custody; (E) the
       programs available to assist these individuals to promote the best interest of the
       child; (F) the plans for the child by [those] seeking custody; (G) the stability of
       the home or proposed placement; (H) the acts or omissions of the parent which
       may indicate that the existing parent–child relationship is not a proper one; and (I)
       any excuse for the acts or omissions of the parents.

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (internal footnotes omitted); accord In re

A.I.G., 135 S.W.3d 687, 692 (Tex. App.—San Antonio 2003, no pet.). “We need not decide

each of these factors against a parent to find that termination is in the child’s best interest.” In re

A.I.G., 135 S.W.3d at 692–93.

       2. Analysis

       The termination proceedings were instituted as a result of a shooting that occurred in

Riley’s apartment. In April 2010, Riley had a male visitor at her apartment. S.L.L.’s father

entered Riley’s apartment and began shooting the visitor. Riley fled the scene, leaving eight-

month-old S.L.L. on the bed in the master bedroom. Riley stated that she left S.L.L. because she

did not believe S.L.L.’s father would hurt her. However, S.L.L.’s father shot the victim three

times, and the last shot was to the victim’s face and fired right next to the bed where Riley had

left S.L.L. The incident prompted the Department to file its petition to terminate Riley’s parental

rights to S.L.L. Riley characterizes the Department’s actions as unfair because the termination

suit was originally based solely on S.L.L.’s father’s actions rather than any actions by Riley.

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However, the evidence presented at trial was not limited to this incident but also included

evidence that Riley’s other children endured a similar pattern of exposure to abuse and domestic

violence.

        Riley is the mother of three children other than S.L.L. Her parental rights to her first two

children were terminated due to her knowing placement of those children in surroundings and

with persons dangerous to their physical and emotional well-being. When Riley’s first child,

X.I., was removed at approximately eight months of age, he had a skull fracture, two broken

arms, a broken clavicle, bruises all over his body, and signs of forced feeding/cuts around his

mouth. Riley pled guilty and was convicted of the felony offense of injury to a child with

serious bodily injury, and was sentenced to ten years’ community supervision. Importantly, as

part of her probation, Riley is not permitted to have unsupervised contact with any child.

        Although Riley’s third child, J.I., was removed from Riley, her parental rights to J.I. were

not terminated. The State appointed a therapist, Judy Dickey, to work with Riley. Despite

working with Dickey for eight months, Riley testified that she believes it is best that J.I. continue

to live in foster care.

        A Department caseworker, Sabrina Bedford, testified that based on her evaluation of

Riley, termination was in S.L.L.’s best interest. Bedford testified that Riley was not granted a

service plan in the instant case because of her previous violations of the Family Code subsections

161.001(1)(D) and (E) and the “aggravated circumstances” leading to S.L.L.’s removal. See

TEX. FAM. CODE ANN. § 161.001(1) (West 2008). Bedford testified that the services provided to

Riley, aimed at correcting the reasons for the removal of her other children, proved unsuccessful

because there continued to be similar occurrences with S.L.L. Bradford noted there had been

multiple domestic violence situations with S.L.L.’s father including the father’s display of a gun



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in front of Riley. Bedford testified that the shooting incident fit the same domestic violence

pattern that had occurred in Riley’s previous Department cases.

       Bedford also testified that S.L.L. has a permanent medical condition called

hydrocephalus, requiring serious medical attention for the rest of her life and for which S.L.L.

has already had one surgery.      In Bedford’s opinion, based on Riley’s previous cases, the

unsuccessful attempts at service plans, the instability of the home, Riley’s history of domestic

violence, and the serious medical needs of S.L.L., termination was in S.L.L.’s best interest.

       Riley argues that the testimony of her therapist, Judy Dickey, establishes that termination

was not in the best interest of S.L.L., and that a substantial question for appellate review was

presented on the sufficiency of the evidence. Dickey initially testified that she believed it was

not in S.L.L.’s best interest to terminate the parent–child relationship. Dickey testified that she

had only observed Riley with S.L.L. on one visit that lasted two hours. Dickey believed that

with more time and therapy Riley would be able to parent S.L.L. She also testified that “in-home

services would be very helpful” to Riley. However, at trial Dickey admitted she did not know

that Riley had been previously provided in-home services that had proved unsuccessful. More

importantly, Riley had not shared with Dickey the extent of the injuries to X.I. Rather, Riley had

explained to Dickey that X.I. had suffered a broken arm as a result of an accident. Dickey was

neither aware of X.I.’s multiple broken bones and skull fracture, nor did she know that his body

was covered in bruises at the time he was removed. After learning the additional information

about Riley and her children, Dickey stated that, in terms of her evaluation assessment of

reunification with S.L.L., the new information “cause[d] [her] pause.”




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                                          CONCLUSION

       From the evidence presented at trial, we conclude that the trial court did not abuse its

discretion in determining that Riley’s factual sufficiency challenge did not present a substantial

question for appellate review and was, therefore, frivolous. See TEX. CIV. PRAC. & REM. CODE

ANN. § 13.003(b). Accordingly, we affirm the trial court’s order terminating Riley’s parental

rights to S.L.L.

                                                            Rebecca Simmons, Justice




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