                                  MEMORANDUM OPINION
                                         No. 04-10-00747-CV

                             IN THE INTEREST OF E.M.C.G., a Child

                     From the 225th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-PA-00760
                    Honorable Charles E. Montemayor, Associate Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 25, 2011

AFFIRMED

           The trial court terminated the parent-child relationship between appellant David Wayne

Griffith and E.M.C.G. Griffith appeals the judgment and the trial court’s order finding his

appellate points to be frivolous. We affirm.

                                                BACKGROUND

           The Department of Family and Protective Services filed a petition in April 2009, seeking

termination of parental rights as to three children. Appellant is the father of one of the children.

After a non-jury trial in September 2010, the trial court terminated the mother’s parental rights as

to all three children and terminated Griffith’s parental rights as to E.M.C.G. The court found the

evidence established by clear and convincing evidence:
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       (1) termination of the parent-child relationship between [Griffith] and the child
       . . . is in the child’s best interest;

       (2) [Griffith] constructively abandoned the child who has been in the permanent
       or temporary managing conservatorship of the Department . . . for not less than
       six months and: (1) the Department . . . has made reasonable efforts to return the
       child to the father; (2) the father has not regularly visited or maintained significant
       contact with the child; and (3) the father has demonstrated an inability to provide
       the child with a safe environment; and

       (3) [Griffith] failed to comply with the provisions of a court order that specifically
       established the actions necessary for the father to obtain the return of the child
       who has been in the permanent or temporary managing conservatorship of the
       Department . . . for not less than nine months as a result of the child’s removal
       from the parent under Chapter 262 for the abuse or neglect of the child.

See TEX. FAM. CODE ANN. § 161.001(1)(N), (O); (2) (West Supp. 2010). Griffith filed a motion

for new trial and a statement of appellate points in which he challenged the legal and factual

sufficiency of the evidence to support the above three findings. See TEX. FAM. CODE ANN.

§ 263.405(b) (West 2008). Neither party presented any evidence or summary of the trial

testimony at the hearing on the motion for new trial. At the conclusion of the hearing, the trial

court found Griffith was indigent, denied his motion for new trial, and found his appellate points

frivolous. See id. § 263.405(d). Griffith timely appealed.

                                           DISCUSSION

       When appeal is sought from an order terminating the parent-child relationship pursuant to

chapter 263, subchapter E, of the Texas Family Code, the trial court must determine whether “the

appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.” Id. An

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

Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.). We review the trial

court’s determination that the appeal is frivolous under an abuse of discretion standard. Id.




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       The affidavit accompanying the Department’s April 2009 original petition recites that the

children’s mother had previous suicide attempts for which she received no treatment and she

used illegal drugs. In addition, the Department found the home to be filthy, with trash throughout

and dirty clothes and feces on the floor. The mother had an earlier referral to the Department for

physical neglect and had closed cases in Nevada and Arizona for physical abuse and neglectful

supervision. When the petition was filed, the mother told the Department she did not know

where Griffith was. The record indicates Griffith, who lives in Nevada, became aware of the

proceedings and that his daughter was in the Department’s custody in June or July of 2009. He

signed a family service plan on July 14, 2009. It appears Griffith had periodic telephone

conversations with E.M.C.G. while the case was pending and Griffith appeared at several status

conferences and at trial by telephone. However, Griffith did not travel to Texas at any time while

the case was pending and had no in-person contact with his daughter. In his pleadings, he

conceded that the last time he had any in-person contact with E.M.C.G. was in 2002, when the

child was one year old. According to Griffith, the mother took the child and left Nevada, and he

did not know their whereabouts.

       The record indicates Griffith completed several parenting classes, but did not complete

the other requirements of the family plan of services ordered by the court. The Department is not

able to pay for services outside the state of Texas, and Griffith asserted that although he located

services in Nevada, he could not afford them and could not travel to Texas to obtain services.

Finally, Griffith admitted he was unable to provide a home for E.M.C.G. At the time of the

judgment, no related person who could provide a suitable and safe home for E.M.C.G. had been

located and approved.




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       Griffith does not dispute that he failed to comply with the family plan of service ordered

by the court. Rather, he appears to contend he should not be required to fully comply because he

is indigent and lives out of state where the Department is unable to pay for the required classes.

However, Griffith challenges only the sufficiency of the evidence to support the trial court’s

finding that he did not comply with the court ordered plan. Griffith did not argue in the trial court

and did not assert in his statement of appellate points that section 161.001(1)(O) should not be

applied to him as written. Moreover, Griffith did not present any evidence at the motion for new

trial hearing of what efforts he made to comply with the plan or that his failure to comply was

due to indigence.

       Griffith next contends that termination under section 161.001(1)(O) requires proof that

the children were removed from their mother for abuse or neglect and that “the record is unclear”

whether abuse or neglect was proven. The judgment recites the trial court’s finding by clear and

convincing evidence that the child was in the Department’s conservatorship “as a result of the

child’s removal from the parent . . . for the abuse or neglect of the child.” Griffith does not cite to

any evidence that would contradict this finding, and the finding is consistent with the

Department’s affidavit accompanying the original petition.

       Griffith argues he should not be found to have abandoned the child because the mother

left Nevada without notifying him and he did not know where they were. However, at the

hearing on the motion for new trial, the trial court stated its finding of abandonment was based

on Griffith’s conduct after the case began — his failure to have any in-person contact with

E.M.C.G. for over a year after Griffith knew exactly where she was and Griffith’s failure to

secure a safe and adequate home for her.




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        The trial court stated Griffith had been advised at the beginning of the case he would

need to make “a real, tangible in-person investment” in Texas and his child. The court was

sympathetic to Griffith’s financial concerns and the fact that the child and her mother had

“disappeared,” but told Griffith, “once you know where they are, sitting right here and your

parental rights are at stake; there’s no more mystery, you need to show up.” Griffith failed to

“show up” and the trial court concluded termination of Griffith’s parental rights was in the

child’s best interest.

        Griffith has not brought forward any arguable legal or factual basis for contending the

trial court erred in terminating his parental rights. Accordingly, the trial court did not abuse its

discretion in concluding Griffith’s appellate points are frivolous.

        The trial court’s judgment is affirmed.




                                                   Steven C. Hilbig, Justice




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