
In The


Court of Appeals


Ninth District of Texas at Beaumont

____________________


NO. 09-08-012 CV

____________________


IN THE INTEREST OF A.F.




On Appeal from the 9th District Court
Montgomery County, Texas

Trial Cause No. 07-01-00231-CV




OPINION


	After a trial to a jury, the court below terminated the parental rights of Donald Frank
and Christina Frank to their child, A.F.  Appointed appellate counsel filed a motion for new
trial and statement of points of appeal for both Donald and Christina.  As to each parent, the
trial court found that an appeal would be frivolous.  The clerk's record and a reporter's
record of the hearing have been filed.  The Franks filed a joint brief in which they challenge
the constitutionality of subsections (b) and (i) of Section 263.405 of the Texas Family Code. 
We hold that the appellants failed to establish a deprivation of their due process and equal
protection rights.  Because no substantial question is presented for review, we affirm the
judgment.
	In their statements of points for appeal, the Franks identified the following issues for
appeal: (1) error in admitting evidence of the Department's removal of another child of the
appellants; (2) exclusion of evidence relating to the removal of A.F.; (3) admission of
evidence of previous referrals; (4) failure to sever Donald's and Christina's cases; (5)
instructing the jury on an unconstitutional ground for termination; (6) failing to submit the
grounds for termination separately; (7) legal and factual insufficiency of the evidence that
each of the Franks allowed the child to remain in conditions that endangered the child's
physical or emotional well-being; (8) legal and factual insufficiency of the evidence that each
of the Franks engaged in conduct that endangered the child's physical or emotional well-being; (9) legal and factual insufficiency of the evidence that each of the Franks failed to
comply with the provisions of a court order that specifically established the actions necessary
to obtain return of the child; (10) legal and factual insufficiency of the evidence that
termination is in the best interest of the child; (11) legal and factual insufficiency of the
evidence of constructive abandonment; (12) legal and factual insufficiency of the evidence
that the Department had been temporary conservator for at least six months preceding the
hearing; (13) legal and factual insufficiency of the evidence that the Department had made
reasonable efforts to return the child; (14) legal and factual insufficiency of the evidence that
each of the Franks had not regularly visited or maintained significant contact with the child;
(15) legal and factual insufficiency of the evidence that each of the Franks demonstrated an
inability to provide a safe environment; (16) constitutional error in submitting disjunctive
theories; (17) that subsections (b) and (i) of Family Code § 263.405 violate state and federal
due process, procedural due process, and equal protection; (18) that subsections (b) and (i)
of Family Code § 263.405 violate state and federal due process, procedural due process, and
equal protection, if the failure to file points of appeal is jurisdictional; (19) that subsections
(b) and (i) of Family Code § 263.405 violate state and federal due process, procedural due
process, and equal protection by not protecting the parents' rights in bringing forth
ineffective assistance of counsel claims; (20) that each parent had a meritorious defense; (21)
that granting a new trial would not harm the Department; and (22) that justice requires a new
trial.  Christina presented additional issues that her constitutional rights were violated by
requiring her to comply with a service plan that the Department knew would be impossible
for her to complete; that the Department confused the factfinder by presenting disparate
grounds for termination; and that there was legally and factually insufficient evidence that
Christina had a mental or emotional illness that rendered her unable to care for the child.  As
to most of the stated points on appeal, the Franks also alleged that counsel's failure to
preserve the issue was ineffective assistance of counsel.
	The trial court conducted the hearing required by the Family Code.  See Tex. Fam.
Code Ann. § 263.405(d) (Vernon Supp. 2007).  At the hearing, the Department described
the evidence relating to each of the points of appeal and presented an argument for why each
ground would be frivolous.  Appellate counsel acknowledged that trial counsel assisted her
in the preparation of the points of appeal; however, trial counsel did not appear at the hearing
either to identify the evidence relating to the points for appeal or to explain their trial
strategy.  On appeal to this Court, the Franks argue only those points for appeal that 
challenge the constitutionality of subsections (b) and (i) of Family Code § 263.405 on
grounds of due process and equal protection.
	Trial counsel was allowed to withdraw and appellate counsel was appointed the day
after the trial court signed the judgment.  The Franks argue that due process requires that
counsel have access to a reporter's record of the trial before filing the statement of points. 
They rely on M.R.J.M., where the court of appeals held that due process requires that the
reporter's record be filed for the appellate court's review of the trial court's determination
of frivolousness.  See In the Interest of M.R.J.M., 193 S.W.3d 670, 674 (Tex. App.--Fort
Worth 2006, no pet.).  This Court declined to adopt the reasoning of M.J.R.M. in In the
Interest of A.S., 239 S.W.3d 390, 392 (Tex. App.--Beaumont 2007, no pet.).  In A.S., a
majority of the Court reasoned that limiting the scope of our review to the record of the
hearing held under Family Code § 263.405, as clearly contemplated by the legislature, did
not result in a deprivation of due process for a parent represented by new counsel on appeal. 
Id. at 393.
	In this case, the Franks argue the holding in M.J.R.M. should not only be adopted by
this Court but should be extended to require that a reporter's record be prepared for use by
appellate counsel in preparing the statement of points in any case in which the appellate
counsel did not represent the appellant at trial.  They contend a balancing of the Eldridge
factors outweighs the presumption that Section 263.405 comports with constitutional due
process requirements.  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).  Under
the first factor, appellants argue that the parents and the child have a shared interest in an
accurate and just decision.  They acknowledge the countervailing governmental interest in
protecting the child and providing stability under the second factor, and argue the risk of
erroneous deprivation of the parent-child relationship is too high when counsel must
"blindly" prepare points for appeal.
	In addressing the appellants' procedural due process concerns, the trial court
considered and rejected appellate counsel's suggestion that she had to blindly prepare the
statement of points.  The trial court noted that the Franks failed to cooperate with their
attorneys during the trial, that the Franks made outbursts and threats throughout the trial, and
that new counsel was appointed the day after trial because the Franks were angry with trial
counsel about the jury verdict.  In immediately appointing new counsel, the trial court
secured the assurances of trial counsel that they would be available for consultation by
appellate counsel.  Appellate counsel conceded that trial counsel did make themselves
available and they had access to trial counsel's notes for the hearing.  On appeal, there is no
indication in this record that conditions beyond their control prevented either appellant from
communicating with appellate counsel or from appearing at the hearing.  Furthermore, the
Department did not move to strike any of the appellants' points for appeal, but addressed
each one and provided support for each point.  Except for the due process issues, the
appellants have left the Department's analysis of the points for appeal unchallenged. 
Regarding a claim of ineffective assistance, counsel advised the court "I would agree that
today I may not be able to come up with something that I can succinctly tell you that is
ineffective assistance of counsel" but argued, "I won't know until I get the entire record as
to whether there's anything there."  If ineffective assistance of counsel were an arguable
point, a record to support the claim should have been made at the motion for new trial
hearing while appellate counsel represented the Franks.  This requires trial counsel's
appearance.  The fact that trial counsel did not appear at the hearing on the motion for new
trial is some indication that there was no record of ineffectiveness to develop.  We will not
second guess the trial court when no record of trial counsel's performance and strategy is made.
	The Legislature has the power to restrict and regulate appeals.  See Tex. Const. art
5, § 6(a).  The points for appeal required by Family Code § 263.405 serve to promptly bring
reversible error to the attention of the trial court and to assist the trial court in determining
whether the appeal is frivolous.  See Tex. Fam. Code Ann. § 263.405(d).  Except for the
provisions relating to appointment of counsel, Section 263.405 applies regardless of
indigence, thus ameliorating the equal protection concerns that would otherwise be present.
Tex. Fam. Code Ann. § 263.405(b), (e); In the Interests of R.J.S. & M.S., 219 S.W.3d 623,
628 (Tex. App.--Dallas 2007, pet. denied). (1)  The points are required to preserve error for
appeal, but counsel does not have to present a full brief on the merits at the hearing.  See
Tex. Fam. Code Ann. § 263.405(i).  The determination of whether an appeal would be
frivolous is governed by the well-established principles that apply to indigent parties in civil
cases.  See Tex. Fam. Code Ann. § 263.405(d)(3);  Tex.  Civ.  Prac.  &  Rem.  Code  Ann.
§ 13.001 (Vernon 2002).  Thus, to obtain a record for the appeal, the appellant must meet a
relatively low hurdle of identifying the points for the appeal; if the Department establishes
during the hearing that the appellants have not identified a substantial issue for review, the
trial court may determine that an appeal would be frivolous and deny a request for a record. 
Tex. Fam. Code Ann. § 263.405(f).  In this case, the Franks identified numerous evidentiary,
charge, and sufficiency issues in the statement of points required by Section 263.405, but on
appeal they do not argue that any of those grounds had any merit.  Although appellate
counsel's task would certainly be easier if she had a full reporter's record of the trial before
the hearing occurred, under the circumstances present in this case we cannot conclude that
the lack of a record precluded the appellants meaningful participation in the hearing,
prevented them from preparing a record to support a claim of ineffective assistance of
counsel at trial, or made it impossible for the appellants to meet the Department's arguments
that the points for appeal are frivolous.
	Balanced against the Legislature's clear intent to quickly determine the status of
children in Department custody and the presumption that the process established by the
Legislature comports with due process, the private and governmental interests involved and
the risk of an erroneous deprivation of parental rights do not compel us to re-write the Family
Code to craft a procedure that will make it easier for parents to present their points for
appeal.  We decline to hold that Family Code § 263.405 is unconstitutional when applied to
a parent represented by new counsel for the appeal.  Because no due process violation is
apparent in this case, and the appellants are not arguing that any other issues will support the
appeal, the judgment is affirmed.
	AFFIRMED.

							____________________________
								STEVE McKEITHEN
								        Chief Justice
Submitted on June 9, 2008
Opinion Delivered June 26, 2008

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

DISSENTING OPINION


	An indigent parent's statutory right to counsel in a termination case includes the right
to effective assistance of counsel.  In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).  A finding
by the trial court that an appeal would be frivolous means the indigent party does not get a
trial court record transcribed without cost.  See Tex. Fam. Code Ann. § 263.405(d)(3)
(Vernon Supp. 2007); Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002). 
Appellate counsel, representing the indigent for the first time after the judgment is signed,
and concerned with the sufficiency of the evidence, cannot adequately discharge her duty
without the trial record.  See generally Hardy v. United States, 375 U.S. 277, 279-80, 84
S.Ct. 424, 11 L.Ed.2d 331 (1964) (criminal case); see generally In re M.S., 115 S.W.3d at 
550 (right to effective assistance of counsel in parental termination cases).  A state "may not
deny [a person], because of her poverty, appellate review of the sufficiency of the evidence
on which the trial court found her unfit to remain a parent."  M.L.B. v. S.L.J., 519 U.S. 102,
107, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996).  
	An indigent party must be afforded a record of sufficient completeness to permit
consideration of a factual sufficiency claim.  See generally id. at 110-12.  In my view, the
post-judgment record here, in which an attorney summarizes the trial evidence, is not a
record of sufficient completeness.  A factual sufficiency challenge may appear to be a losing
issue based on summaries presented at the post-trial hearing.  That assumption carries a risk
when the evidence is disputed and the appellant's trial attorney was not present to challenge
the summary.  If appellant's trial attorney had been present at the post-trial hearing in this
case, he may have contested any summary he thought was false based on his memory or
notes, or provided his own summary.  The majority reasonably takes his absence as "some
indication that there was no record of ineffectiveness to develop."  See, e.g., In re M.S., 115
S.W.3d at 546 (To complain of ineffectiveness of counsel in failing to secure a complete
record, there must be a showing of harm.).  The Department's brief in this case persuasively
argues that any appeal would be frivolous, and that the evidence clearly supports the jury's
findings.  But, with reason, court reporters are employed to transcribe trial records on
disputed facts, appellate courts receive briefs from both parties, and parties are required to
include trial record citations in the ordinary appeal.  See generally Tex. R. App. P. 13.1,
38.1(f),(h), 38.2.      
	The Texas Constitution provides courts of appeals "conclusive appellate review of all
factual sufficiency questions that are properly presented on appeal."  In re M.R.J.M, 193
S.W.3d 670, 675 (Tex. App.--Fort Worth 2006, no pet.) (citing Tex. Const. art. V, § 6(a);
Tex. Gov't Code Ann. § 22.225(a) (Vernon Supp. 2007)).  Once the Legislature has granted
jurisdiction over an appeal, our constitutionally assigned powers of review control.  See id.
at 676 n.26.  Generally a court of appeals reviews evidence to determine whether a factual
sufficiency point has merit.  See In re id. at 673-74.  A portion of the trial record may also
be necessary to review a finding on other issues, for example, a claim that trial counsel
provided ineffective assistance at trial.  Because section 263.405(g) authorizes courts of
appeals to issue "appropriate orders," the statute recognizes the Court's authority to order a
record of sufficient completeness to review a trial court's determination that an appeal point
is frivolous.  See Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2007).  For that reason,
the statute does not violate the separation of powers provided under the Texas Constitution.
In re M.R.J.M., 193 S.W.3d. at 676.  And for that reason, the statute may survive an equal
protection and due process challenge.  See, e.g., M.L.B., 519 U.S. at 107, 119-128.  I believe
the appropriate order under the circumstances is to require the record of the evidence
transcribed and filed.  The Family Code authorizes that procedure.  See In re M.R.J.M., 193
S.W.3d at 676.  
																				___________________________ 
									DAVID GAULTNEY
									           Justice

Dissent Delivered
June 26, 2008

1.  A parent's right to appointed counsel is based solely upon a determination of
indigence and is not affected by the trial court's determination that an appeal would be
frivolous.  See Tex. Fam. Code Ann. § 263.405(e).

