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.