law-frivolous-appeal | sanctions on appeal | common errors in appeals

FRIVOLOUS APPEAL FINDING

Hyatt v. DFPS (Tex.App.- Houston [1st Dist.] Oct. 22, 2009)(Higley)
(
termination of parental rights, frivolous appeal finding)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley    
Before Justices Jennings, Higley and Sharp)
01-09-00159-CV  Kenneth A. Hyatt III v. Department of Family and Protective Services   
Appeal from 315th District Court of Harris County
Trial Court Judge:  Hon. Michael H. Schneider


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. Tex. Fam. Code Ann. §
263.405(g) (Vernon 2008); Lumpkin v. Dep’t of Fam. and Prot. Servs., 260 S.W.3d 524, 526 (Tex. App.—
Houston [1st Dist.] 2008, no pet.). We review a trial court’s determination that an appeal would be frivolous for
an abuse of discretion. In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.—San Antonio 2006, no pet.). In making a
determination that an appeal is frivolous, the trial court may consider whether appellant has presented “a
substantial question for appellate review.” See Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (Vernon 2002);
In re R.C.R., No. 14-08- 00904-CV, 2009 WL 997514, at *2 (Tex. App.—Houston [14th Dist.] Apr. 14, 2009, no
pet.)(mem. op.). An appeal is frivolous when it lacks an arguable basis in law or in fact. In re K.D., 202 S.W.3d
860, 865 (Tex. App.—Fort Worth 2006, no pet.).
In Interest of KLG (Tex.App.- Houston [14th Dist.] Oct. 15, 2009)
(
trial court’s frivolousness finding and final decree terminating parental rights affirmed)
AFFIRMED: Per Curiam   
Before Chief Justice Hedges, Justices Seymore and Sullivan    
14-09-00403-CV  In the Interest of K.L.G. aka C.G., a child    
Appeal from 315th District Court of Harris County
Trial Court Judge: Michael H. Schneider
The trial court properly found that this appeal is frivolous for two reasons. First, by statute, we may consider
only those issues presented to the trial court in a timely filed statement of points. Tex. Fam. Code Ann. §
263.405(i) (Vernon 2008). Appellant did not raise a challenge to the predicate ground in subsection Q or to the
best-interest finding.[4] Second, because they were unchallenged, findings supporting termination of appellant’
s parental rights to K.L.G. are binding, and no review of the other predicate grounds or the best-interest finding
is necessary. See In re A.V., 113 S.W.3d at 362. Thus, this appeal presents no substantial question for
appellate review. Because this appeal is frivolous, we do not reach the issues on the merits. See also Lumpkin,
260 S.W.3d at 526 (holding that where trial court properly found appeal frivolous, no further review is
warranted).
In an effort to ensure a meaningful appeal, some courts consider all the evidence presented at trial in reviewing
the trial court’s determination of frivolousness. See In re B.Y., No. 02-05-00332-CV, 2006 WL 1716265, at *4
(Tex. App.—Fort Worth June 22, 2006, no pet.)(mem.op.) (court reviewed evidence admitted at trial, agreed
that appeal would not present substantial question for review, overruled challenge to finding of frivolousness,
and affirmed judgment). Although we do not believe it is required under the facts presented here, we have
reviewed the complete record. In addition to the evidence already discussed, appellant acknowledged his long
criminal history. Certified copies of appellant’s convictions were admitted into evidence. Appellant conceded he
was unable to care for K.L.G., he had no family member who could assist in caring for her while he was in
prison, and she was currently in a good home. The Department caseworker testified favorably about K.L.G.’s
placement with a prospective adoptive family. After review of the complete record from trial, we conclude the
trial court did not abuse its discretion in determining this appeal would be frivolous.



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