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                                 MEMORANDUM OPINION

                                        No. 04-08-00340-CV

                        IN THE INTEREST OF S.M., I.T., and J.D.T., Children

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                    Trial Court No. 06-10-45136
                            Honorable Ricardo H. Garcia, Judge Presiding

Opinion by:       Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 31, 2008

AFFIRMED IN PART; REVERSED IN PART

           The motion for rehearing filed by appellant is granted in part. This court’s opinion and

judgment dated October 22, 2008 are withdrawn, and this opinion and order are substituted. We

grant the motion for rehearing as to the issue relating to the appointment of L.S.M. as possessory

conservator.

                                           BACKGROUND

           The trial court appointed the Texas Department of Family and Protective Services as

managing conservator over L.S.M.’s three children without terminating L.S.M.’s parental rights.

See TEX . FAM . CODE ANN . § 263.404 (Vernon 2002). After a hearing pursuant to section 263.405(d)
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of the Texas Family Code and after allowing the parties to file additional briefing,1 the trial court

found that L.S.M. is not indigent, and her appeal from the trial court’s order would be frivolous. See

TEX . FAM . CODE ANN . § 263.405(d) (Vernon Supp. 2008). L.S.M. contends the trial court abused

its discretion in making those findings.

                                         FRIVOLOUS APPEAL

        We review a trial court’s determination that an appeal is frivolous under an abuse of

discretion standard. In re W.B.W., Jr., 2 S.W.3d 421, 422 (Tex. App.—San Antonio 1999, no pet.).

An appeal is frivolous when it lacks an arguable basis in law or in fact. De La Vega v. Taco Cabana,

Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.). In determining whether an

appeal is frivolous, the trial 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); TEX .

FAM . CODE ANN . § 263.405(d)(3) (Vernon Supp. 2008).

        L.S.M. asserts the trial court abused its discretion in finding an appeal of the following issues

raised in her statement of appellate points would be frivolous: (1) the trial court’s denial of her right

to a fair jury trial because the father of two of the children, who agreed with the appointment of the

Department as managing conservator, was allowed to participate in jury selection which disallowed

L.S.M. more strikes; (2) the sufficiency of the evidence to support the jury’s finding that

appointment of L.S.M. as managing conservator would not be in the best interest of the children

because the appointment would significantly impair the children’s physical health or emotional

development; and (3) the trial court’s failure to name her as a possessory conservator in its order.



        1
         … In response to the opportunity the trial court gave the parties to file additional briefing
after the hearing, the Department submitted a brief addressing whether L.S.M.’s appeal would be
frivolous; however, L.S.M. did not submit a brief.

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        With regard to the denial of a fair trial, the Department noted in its trial brief that the jury

strikes were divided between the Department and the children’s attorney ad litem, and no objection

was made with regard to the number of jury strikes. See TEX . R. APP . P. 33.1 (requiring objection

to preserve error). In addition to the potential problem with error preservation, L.S.M. failed to

explain in her brief how the manner in which the jury strikes were divided resulted in a materially

unfair trial.2 Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 921 (Tex. 1979) (relaxing traditional

“harmless error” rule but requiring complaining party to show that trial was materially unfair).

Accordingly, the trial court did not err in finding that L.S.M.’s assertion of this issue on appeal

would be frivolous.

        With regard to the sufficiency of the evidence, L.S.M. testified at trial that she had admitted

herself to a psychiatric facility on several occasions and had overdosed on several occasions

requiring hospitalization. L.S.M. admitted that she had failed to comply with the Department’s

service plan and that she used controlled substances. L.S.M. testified as to her instability in

obtaining and maintaining employment and appropriate housing. L.S.M.’s therapist also testified

that L.S.M. was not ready to have her children returned to her. Pictures of the home from which the

children were removed were introduced into evidence depicting the deplorable conditions and

unsuitability of the home environment. Rosario Ramos, a caseworker, testified that L.S.M. could

not meet the children’s needs and that the children would face emotional and physical dangers if

returned to L.S.M. In view of this evidence, the trial court did not abuse its discretion in finding that



        2
         … This issue does not even appear to have been verbally presented to the trial court at
the section 263.405(d) hearing, and the only sentence in L.S.M.’s brief pertaining to the issue
states, “The Appellant further contend[s] that she was denied the right to a fair trial because the
trial court allowed Respondent [father] to participate in jury selection and the trial and thus
confused the jury and interfered with Appellant’s right to a fair trial.”

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an appellate point based on the sufficiency of the evidence would be frivolous.

        The final issue raised in L.S.M.’s statement of appellate points was that the trial court was

required to appoint her as a possessory conservator pursuant to section 153.191 of the Texas Family

Code. In our original opinion, we noted that the trial court did not abuse its discretion in finding that

an appeal on this basis also would be frivolous given the evidence previously summarized.3 See

TEX . FAM . CODE ANN . 153.191 (Vernon 2002) (court not required to appoint parent as possessory

conservator if appointment not in best interest of the child and parental possession would endanger

the physical and emotional welfare of the child).

        In addition to filing a motion for rehearing requesting that we reconsider this issue, L.S.M.

also filed the portion of the reporter’s record containing the trial judge’s discussion of the judgment

he intended to enter based on the jury’s verdict. This portion of the reporter’s record demonstrates

the problems that arise when the trial judge who presides over the trial does not also preside over the

section 263.405(d) hearing to determine whether an appeal of issues arising from that trial or relating

to the judgment entered as a result of that trial would be frivolous. From the discussion by the trial

judge who presided over the trial regarding the judgment to be entered, it is readily apparent that the

trial judge intended to appoint L.S.M. as a possessory conservator. In fact, the trial judge was

advocating an immediate increase in L.S.M.’s visitation rights. Initially, the trial judge told L.S.M.,

“I think you’ve made a tremendous amount of progress. You’re a different person today than the

person I first met when all of this got started.” The trial judge further noted, “So, let’s keep working

towards what, I think, the ultimate goal is of getting these children back with their mom.” The trial

judge finally asserted, “I want the children and the mother to have as much time as possible. ... I’d


        3
         … In our original opinion, we noted that the record reflected that L.S.M. was being given
visitation with her children pursuant to the Department’s current service plan.

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like to see what we can do about getting [L.S.M.] more visitation right now, too.” Accordingly,

based on the record presented, the trial court abused its discretion in determining that an appeal of

the issue relating to the failure to appoint L.S.M. as a possessory conservator would be frivolous.

                                             INDIGENCY

       We also review the trial court’s indigence finding under an abuse of discretion standard. In

re Smith, 70 S.W.3d 167, 168 (Tex. App.—San Antonio 2001, no pet.). Even absent a contest,

section 263.405 requires the trial court to determine whether L.S.M.’s claim of indigence should be

sustained. See TEX . FAM . CODE ANN . § 263.405(d),(e) (Vernon Supp. 2008). At the hearing on

May 27, 2008, L.S.M. testified that she was employed during the trial but decided to take maternity

leave beginning on May 8, 2008. While employed, L.S.M. was working almost 40 hours every week

and making $8.00 per hour. L.S.M.’s expected delivery date was not until August 16, 2008. In

response to whether a medical reason precluded her from working, L.S.M. admitted that she did not

have a doctor’s excuse. A party’s claim of indigence will fail if that party is voluntarily unemployed.

In re A.M.R., No. 04-02-00333-CV, 2002 WL 31830482, at *1 (Tex. App.—San Antonio Dec. 18,

2002, no pet.) (mem. op.); In re Smith, 70 S.W.3d at 169. In view of the evidence presented, the trial

court did not abuse its discretion in finding that L.S.M. is not indigent.

                                            CONCLUSION

       The portion of the trial court’s order finding that an appeal of the issue relating to the trial

court’s failure to appoint L.S.M. as a possessory conservator is reversed, and L.S.M. is entitled to

proceed with a brief on the merits of that issue. The remainder of the trial court’s order is affirmed.



                                                        Alma L. López, Chief Justice



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