Aranda v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Higley)
(termination of parental rights appeal, frivolousness finding)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley   
Before Justices Jennings, Higley and Sharp    
01-09-00058-CV  Ernesto Aranda v. Department of Family and Protective Services    
Appeal from 314th District Court of Harris County
Trial Court Judge:  Hon. John Phillips  

MEMORANDUM OPINION

Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between
appellant, Ernesto Aranda a/k/a Ernesto Arellano, a/k/a Francisco Arellano, a/k/a Francisco Arellano-Arasate,
a/k/a Nieto Arellano Aranda, a/k/a Francisco Arsato Arellano (“Aranda”), and his biological son, “John.”
Footnote The trial court also awarded sole managing conservatorship of John to the Department of Family and
Protective Services (“the Department”). On appeal, Aranda challenges the trial court’s determination that his
sole appellate point—listed in his timely filed “Statement of Appellate Points”—is “frivolous.”

After reviewing the record and the briefs, we affirm the trial court’s order in which it finds Aranda’s appellate
point, and thus his appeal, to be frivolous.

Relevant Procedural Background

On August 14, 2007, the Department filed suit seeking to terminate the parent-child relationship between
Aranda and John. Footnote Among the grounds asserted by the Department for termination was the allegation
that Aranda “knowingly engaged in criminal conduct that has resulted in [his] conviction of an offense and
confinement or imprisonment and inability to care for [John] for not less than two years from the date of the filing
the petition, pursuant to § 161.001(1)(Q) of the Texas Family Code.”

Aranda filed a cross-action against the Department in which he requested that either his sister or his mother be
named as John’s permanent managing conservator and that he be named as possessory conservator. In his
cross-petition, Aranda averred, in part, as follows: “On October 1, 2006, [Aranda] pled guilty to the federal
offense of being an alien unlawfully in the United States after deportation and he received a sentence of 46
months. He is currently incarcerated in a federal facility in South Carolina.”

Aranda waived trial by a jury, and the Department’s termination suit against him was tried to the bench. At trial,
the Department offered business records showing that Aranda had undergone DNA testing and that such
testing revealed that Aranda is John’s biological father. Aranda made no objection to the admission of the DNA
records. The Department also offered into evidence, without objection from Aranda, the Department’s
permanency plan and progress report, which provided that Aranda was “currently incarcerated and will not be
released for another 2 years.”

In addition, the Department offered certified copies of four separate judgments of conviction for Aranda. The
first three were for Texas state felony convictions. The fourth judgment indicated that, on October 1, 2006,
“Francisco Arellano-Arasate” was convicted of a federal offense described in the judgment as follows: “Alien
Unlawfully Found in the United States After Deportation Having Been Previously Convicted of Aggravated
Felony” Aranda objected to the admission of the four judgments on relevancy grounds by asserting that “there’s
no proof at this point linking the individuals named in these documents to [Aranda].” The trial court overruled
Aranda’s objection and admitted all four judgments, including the federal judgment, which indicates that Aranda
was sentenced to 46 months in prison. The judgment also lists seven aliases for Aranda, including “Ernesto
Aranda.”

Following trial, the trial court granted the relief sought by the Department. The court signed a decree
terminating the parent-child relationship between Aranda and John and awarding the Department sole
managing conservatorship of the child. Footnote

In support of termination, the judgment recites that the trial court found, by clear and convincing evidence, that
terminating Aranda’s parental rights was in John’s best interest. The judgment further recites that the trial court
found, by clear and convincing evidence, that Aranda has “knowingly engaged in criminal conduct that has
resulted in the father’s conviction of an offense and confinement or imprisonment and inability to care for the
children for not less than two years from the date of the filing the petition, pursuant to § 161.001(1)(Q) of the
Texas Family Code.” No findings of fact or conclusions of law were filed or requested.

Aranda timely filed a motion for new trial and a statement of appellate points. Aranda identified one appellate
point in which he challenged the legal and factual sufficiency of the evidence to support the trial court’s
predicate finding under subsection 161.001(1)(Q). Footnote

Following a hearing, the trial court denied Aranda’s motion for new trial and found his appellate point to be
“frivolous.” Aranda timely filed a notice of appeal and now challenges the trial court’s determination that the
basis for his appeal is frivolous.

Law Applicable to Reviewing a Trial Court’s Frivolousness Finding

Family Code section 263.405(d)(3) directs the trial court to determine whether an appeal from a termination
order is frivolous “as provided by section 13.003(b), Civil Practices and Remedies Code.” Tex. Fam. Code Ann.
§ 263.405(d)(3) (Vernon 2008). Section 13.003(b) provides that, “[i]n 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) (Vernon 2002). For analysis purposes, an appeal is
frivolous when it lacks an arguable basis either in law or in fact. Lumpkin v. Dep’t of Family & Protective Servs.,
260 S.W.3d 524, 527 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

If a trial court makes a frivolousness finding, the aggrieved parent can appeal, but the appeal is initially limited
to the frivolousness issue. Id. at 526 (citing Tex. Fam. Code Ann. § 263.405(g) and In re K.D., 202 S.W.3d 860,
865 (Tex. App.—Fort Worth 2006, no pet.)). In other words, before we can reach the substantive merits of an
appeal in which a frivolousness finding has been made, we must first determine whether the trial court properly
found the appeal to be frivolous. Footnote Id.

We review a trial court’s frivolousness finding under an abuse of discretion standard. Id. Applying that standard,
we decide whether the trial court acted without reference to any guiding rules or principles; in other words, we
must decide whether the act was arbitrary or unreasonable. Id. at 527 (citing Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

Analysis of Trial Court’s Frivolousness Finding

As mentioned, the trial court found Aranda’s sole appellate point challenging the legal and factual sufficiency of
the evidence to be frivolous. In so doing, the trial court implicitly found that the stated appellate challenge
lacked a substantial basis in law or fact.

Due process requires the petitioner to justify termination of parental rights by clear and convincing evidence.
Tex. Fam.Code Ann. §§ 161.001, 161.206(a) (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). The
higher burden of proof in termination cases elevates the appellate standard of both legal and factual sufficiency
review. See J.F.C., 96 S.W.3d at 265; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In conducting a legal-sufficiency
review in parental rights termination cases, a court must review all of the evidence in the light most favorable to
the verdict and determine whether the evidence is such that a fact-finder could reasonably form a firm belief or
conviction that the grounds for termination were proven. J.F.C., 96 S.W.3d at 265–66. In a factual sufficiency
review, when determining whether the evidence is such that a fact-finder could reasonably form a firm belief or
conviction that its finding was true, a court must consider whether disputed evidence is such that a reasonable
fact-finder could not have resolved it in favor of the finding. Id. at 266.

When it makes a frivolousness determination on an appellant’s proposed legal and factual sufficiency point, the
trial court should apply the standards of review applicable to clear and convincing evidence set out above to
determine whether the appeal has a substantial basis in law or in fact. See K.D., 202 S.W.3d at 867–68. Thus,
the question now before this Court is whether the trial court abused its discretion in its review of the sufficiency
of the evidence.

With these principles in mind, we turn to the record in this case.

To reiterate, the challenged predicate finding supporting termination in this case was pursuant to Family Code
subsection 161.001(1)(Q). See Tex. Fam. Code Ann. § 161.001(1)(Q). Subsection Q permits termination when
clear and convincing evidence shows that the parent “knowingly engaged in criminal conduct that has resulted
in the parent’s: (i) conviction of an offense and (ii) confinement or imprisonment and inability to care for the child
for not less than two years from the date of filing the petition.” Id.; see In re A.V., 113 S.W.3d 355, 360–61 (Tex.
2003). Subsection Q is applied prospectively. A.V., 113 S.W.3d at 360. In other words, subsection Q permits
termination if the evidence shows that, during the two-year period following the initiation of the termination
proceedings, the parent will be confined or imprisoned and unable to care for the child. See id. at 360–61.

As he did at the frivolousness hearing, Aranda now attacks the trial court’s sufficiency of the evidence
determination, regarding the predicate Subsection Q finding, by attacking the admissibility of the federal
judgment. As mentioned, the federal judgment indicates that “Francisco Arellano-Arasate” was sentenced to 46
months in prison on October 1, 2006. Footnote Appellant argues that the federal judgment cannot support the
trial court’s predicate finding because the Department made no showing that he is the person named in the
federal judgment. Footnote

In response, the Department points out that Aranda’s cross-petition contains the following statement: “On
October 1, 2006, [Aranda] pled guilty to the federal offense of being an alien unlawfully in the United States
after deportation and he received a sentence of 46 months. He is currently incarcerated in a federal facility in
South Carolina.” The Department asserts that such statement constitutes a judicial admission and that the
federal judgment was merely cumulative of the judicially admitted fact of his incarceration, more specifically, of
the fact that he was incarcerated for not less than two years from the date of filing the termination petition.

“Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial
admissions.” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (quoting Houston
First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983)). A judicial admission that is clear and unequivocal is
a formal waiver of proof that dispenses with the production of evidence on an issue, has conclusive effect, and
bars the admitting party from disputing the admitted fact. Id.

Aranda’s assertion in his cross-petition regarding his conviction and incarceration was not pled in the alternative
and is a clear and unequivocal statement. In short, the cited statement was a judicial admission, which waived
the necessity of proof on the fact of Aranda’s incarceration, had a conclusive effect, and barred Aranda from
later disputing the facts of the statement. See Holy Cross Church, 44 S.W.3d at 568.

In any event, the record also shows that the Department offered evidence of Aranda’s incarceration, aside from
the federal judgment. As mentioned, the trial court admitted, without objection from Aranda, the Department’s
November 1, 2008 permanency plan and progress report, which provided that Aranda was “currently
incarcerated and will not be released for another 2 years.”

In addition, the record shows that some evidence was admitted, without objection by Aranda, indicating that he
is the person named in the federal judgment. Information used to identify Aranda in the unobjected-to DNA
records reflect the same “register number” as that used to identify Aranda in the certified copy of the federal
judgment. A photograph used to identify Aranda in the DNA records appears to be the same photograph
accompanying the judgment received from the Federal Bureau of Prisons.

After considering the record, we conclude that the trial court could have properly determined that Aranda’s legal
and factual sufficiency point lacked a substantial basis in law or in fact. Thus, we hold that the trial court did not
abuse its discretion when it found Aranda’s legal and factual sufficiency point, and hence the appeal, to be
frivolous.

Conclusion

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

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Sharp.