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TEXAS COURT OF APPEALS, = THIRD=20 DISTRICT, AT AUSTIN
NO. 03-07-0000
v. Texas Department of Family = and=20 Protective Services, Appellee
FROM THE = DISTRICT=20 COURT OF TRAVIS COUNTY, 126TH = JUDICIAL=20 DISTRICT NO.
Alexander Vallejo challenges the district court's determination = that=20 his appeal is frivolous. Vallejo filed a statement of points on = appeal in=20 which he asserted that the trial court erred by involuntarily = terminating=20 his parental rights after he filed an affidavit of voluntary=20 relinquishment. The trial court determined that Vallejo's appeal = was=20 frivolous, thus denying him the right to a free record on appeal.=20 See Tex. Civ. Prac. & Rem. Code Ann. =A7 13.003 (West = 2002);=20 Tex. Fam. Code Ann. =A7 263.405(d)(3) (West 2002). We find no = abuse of=20 discretion in the district court's determination that this appeal = is=20 frivolous. We review a trial court's determination that an appeal is = frivolous=20 under an abuse of discretion standard. In the Interest of = W.B.W., 2 S.W.3d 421, 422 (Tex. App.--San Antonio 1999, no = pet.). An=20 appeal is frivolous when it lacks an arguable basis in law or in = fact.=20 De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 = (Tex.=20 App.--San Antonio 1998, no pet.). In determining whether an appeal is frivolous, the trial judge may consider = whether=20 the appellant has presented a substantial question for appellate = review.=20 Tex. Civ. Prac. & Rem. Code Ann. =A7 13.003(b). The Department sought termination of the parental rights of the = parents=20 of A.V. After the termination hearing began, Vallejo executed an = affidavit=20 of voluntary relinquishment of his parental rights. The court = proceeded to=20 terminate his parental rights involuntarily, listing four bases = and the=20 best interest of the child as set out in the statute: The court may order termination of the parent-child = relationship if the=20 court finds by clear and convincing evidence: (1) that the parent has: . . . ; (D) knowingly placed or knowingly allowed the child to remain = in=20 conditions or surroundings which endanger the physical or = emotional=20 well-being of the child; (E) engaged in conduct or knowingly placed the child with = persons who=20 engaged in conduct which endangers the physical or emotional = well-being of=20 the child; . . . ; (K) executed before or after the suit is filed an unrevoked or=20 irrevocable affidavit of relinquishment of parental rights as = provided in=20 this chapter; . . . ; [or] (N) constructively abandoned the child who has been in the = permanent or=20 temporary managing conservatorship of the Department of Protective = and=20 Regulatory Services or an authorized agency for not less than six = months,=20 and: (i) the department or authorized agency has made reasonable = efforts to=20 return the child to the parent; (ii) the parent has not regularly visited or maintained = significant=20 contact with the child; and (iii) the parent has demonstrated an inability to provide the = child=20 with a safe environment; . . . ; and (2) that termination is in the best interest of the = child. Tex. Fam. Code Ann. =A7 161.001 (West Supp. 2007). Vallejo states that he does not intend to challenge the = termination of=20 his parental rights and will not seek to withdraw his voluntary=20 relinquishment. Instead, he wants this Court to vacate the = affirmative=20 findings that his actions or inactions endangered the children = because=20 those determinations could affect his parental rights to other = children=20 that he might one day have. See id. = =A7 161.001(1)(M). He also=20 wants the finding that termination is in A.V.'s best interest = vacated. Vallejo offers several arguments that he asserts present a = substantial=20 question for appeal. He contends that, because this case concerns = a=20 voluntary relinquishment, the involuntary termination statute is=20 inapplicable. He contends that voluntary relinquishments of = parental=20 rights are effective on execution and are not subject to analysis=20 regarding the best interest of the child. See Tex. Fam. = Code Ann.=20 =A7 161.103 (West 2002). He contends that his voluntary = relinquishment=20 rendered the involuntary termination proceeding moot and stripped = the=20 district court of jurisdiction to determine whether any other = grounds for=20 involuntary relinquishment existed. He also contends that his = failure to=20 appeal the termination on grounds that he constructively abandoned = the=20 child does not foreclose him from appealing the findings that he = engaged=20 in particular conduct that placed the child in danger. = Additionally,=20 Vallejo contends that the issue of whether the trial court can=20 involuntarily terminate the parental rights of someone who has = voluntarily=20 relinquished those rights is not frivolous because it is not = clearly=20 resolved by statutory or case law. This case is an involuntary termination proceeding. Family code =
section=20
161.001 applies. Vallejo filed his voluntary relinquishment =
affidavit on=20
the third day of the hearing on the involuntary termination =
petition, on=20
the same day the court signed the termination decree. No law =
states that=20
an irrevocable affidavit of voluntary relinquishment automatically =
terminates both parental rights and an involuntary termination =
proceeding.=20
See Tex. Fam. Code Ann. =A7=A7 161.001, .103. =
Instead, the=20
legislature included the execution of a voluntary relinquishment =
affidavit=20
among the alternative grounds for involuntary termination with no =
hint=20
that it excludes or preempts other grounds. See Tex. Fam. =
Code=20
Ann. =A7 161.001(1)(K). Even a voluntary relinquishment =
affidavit=20
signed before the filing of a termination suit can support =
involuntary=20
termination. The language of the affidavit also supports the district = court's=20 finding. After statements regarding the relinquishment of parental = rights,=20 the affidavit provides: I fully understand that a lawsuit has been filed in Travis = County, to=20 terminate forever the parent-child relationships between me and = the=20 above-named Child. I fully understand that the termination suit = may or may=20 not be combined with a suit to adopt my Child. I understand that = either=20 way, once the Court terminates my parental rights, I have no = further say=20 concerning my Child, whether or not my child [is] adopted then or = at some=20 later time. . . . . I do not want to be informed further about the lawsuit, and I = waive and=20 give up my rights to be given notice about anything going on in = the=20 lawsuit. I specifically agree that a final hearing in the lawsuit = may be=20 held at a time without further notice to me. . . . . Furthermore, I do not want to be mailed or given a copy of the = judgment=20 terminating my parental rights and do not want to be notified of = the=20 signing, rendition, or entry of that judgment. . . . . I FULLY UNDERSTAND THAT I WILL NOT BE INFORMED FURTHER ABOUT = THE=20 TERMINATION SUIT. . . . . Termination of the parent-child relationships between me and my = Child,=20 so that they may be placed for adoption, is in the best interest = of the=20 Child. I understand that I make this termination possible by = executing=20 this Affidavit. These passages acknowledge that the termination suit has been = filed and=20 will continue without Vallejo's involvement after the = execution of=20 the affidavit. The statement that execution of the affidavit = "make[s]=20 the termination possible" anticipates that, despite the execution = of=20 the affidavit, further action will be needed to effectuate = the=20 termination of parental rights. Although the affidavit does = not alter=20 the structure of state law, it is consistent with the = interpretation of=20 the statutes that a voluntary relinquishment affidavit does = not moot=20 further proceedings in an involuntary termination proceeding. Against this statutory and factual backdrop, we find no abuse = of=20 discretion in the district court's determination that an appeal = premised=20 on the assertion that "[t]he District Court erred in terminating=20 Respondent's parental rights pursuant to Tex. Fam. Code =A7=A7 = 161.001(D) and=20 (E) when Respondent had previously signed a valid affidavit of = voluntary=20 relinquishment of parental rights" lacked an arguable basis in = fact and=20 law. This decision is not a final determination on the merits and = does not=20 foreclose Vallejo from presenting this argument on appeal. This = order only=20 affirms the trial court's finding that the appeal is frivolous, = which=20 denies him the right to a free record on appeal. See Tex. = Civ.=20 Prac. & Rem. Code Ann. =A7 13.003; Tex. Fam. Code Ann. = =A7=20 263.405(d)(3). Ordered April 18, 2008.
G. Alan Waldrop, Justice Before Chief Justice Law, Justices Waldrop and Henson=20 1. Vallejo argues that this section is best = read as=20 being applicable only when the affiant seeks to revoke the = affidavit of=20 voluntary relinquishment. The statute contains no indication of = such a=20 limitation. See Tex. Fam. Code Ann. =A7 161.001 (West = Supp. 2007=20 ). |