Opinion
No. 02-05-392-CV
Delivered: March 27, 2008.
Appealed from County Court at Law No. 1 of Parker County.
PANEL M: MCCOY, GARDNER, and WALKER, JJ.
See TEX. R. APP. P. 47.4.
After a jury trial, the trial court signed a final order terminating the parental rights of appellant Michael Glenn M. to his daughter, M.R.J.M. The trial court subsequently held the hearing required by family code section 263.405(d) and denied Michael's motion for new trial, found that he is indigent, and determined that an appeal of the issues raised in his statement of points would be frivolous. See generally TEX. FAM. CODE ANN. § 263.405(b), (d) (Vernon Supp. 2007) (providing procedures for determining indigency and right to obtain free record for appeal of judgment terminating parental rights). Michael now appeals, challenging in four issues the trial court's finding that the appeal is frivolous. See id. § 263.405(g).
I. Separation of Powers
In his first issue, Michael contends that section 263.405(g) of the family code violates the separation of powers clause of the Texas Constitution because it interferes with our appellate jurisdiction by restricting our ability to rule on the merits of the appeal. See TEX. CONST. art. V, § 6(a) (providing that each court of appeals has appellate jurisdiction co-extensive with the limits of its district). Section 263.405(g) provides that an appellant may appeal the trial court's finding that the appeal is frivolous by filing with the appellate court the reporter's record and clerk's record of the hearing on the frivolousness issue within ten days of the trial court's decision. TEX. FAM. CODE ANN. § 263.405(g).
"The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, . . . and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted." TEX. CONST. art. II, § 1.
]Section 263.405(g) further provides that the appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.
First, Michael argues that our review is curtailed because section 263.405(g) limits the contents of the appellate record to the record of the frivolousness hearing only. However, we previously have determined that an appellate court has the authority to order the preparation of a record of all the evidence in a termination case when necessary to review a trial court's determination that an appeal raising a factual sufficiency complaint is frivolous. In re M.R.J.M., 193 S.W.3d 670, 674-75 (Tex.App.-Fort Worth 2006, order) (en banc) (citing TEX. FAM. CODE ANN. § 263.405(g) (providing that the appellate court shall enter "appropriate orders" after reviewing the record of the frivolousness hearing and briefs, if any)). In this case, after reviewing the record from the frivolousness hearing, we ordered the court reporter to prepare and file a reporter's record containing all the evidence admitted at the trial on termination. See id.; see also TEX. R. APP. P. 34.6(d). Michael does not contend that any lack of the clerk's record has harmed him in this particular appeal. Accordingly, our opportunity to address Michael's complaints is not limited by a lack of the trial court record.
This moots Michael's complaint in his fourth issue, that the trial court erred in instructing the court reporter not to prepare a record of the trial and by ordering the court reporter and court clerk to prepare records of the section 263.405(d) hearing only. Because we have ordered the preparation of the reporter's record containing all the evidence admitted at the trial on termination, and because Michael does not explain how our review is curtailed by the contents of the clerk's record as limited by the trial court, we overrule his fourth issue.
Neither is our opportunity limited by a lack of an appellant's brief on the merits, as Michael claims. Section 263.405(g) provides that the appellate court, in considering an appeal of the trial court's frivolousness finding, may require the parties to file appellate briefs on the issues presented. See TEX. FAM. CODE ANN. § 263.405(g).
Michael raises various other challenges to the statute, such as his complaints that the statute forbids oral argument and usurps the appellate court's established method of dealing with frivolous appeals, but he does not contend that any of these alleged statutory deficiencies actually caused him harm personally in the case before us. Before a court decides an issue involving the constitutionality of a statute, it must first assure itself that the party raising such a claim has presently been injured by the statute. Meshell v. State, 739 S.W.2d 246, 250 (Tex.Crim.App. 1987). Courts are not authorized to render advisory opinions on issues not necessary to the disposition of an appeal. See TEX. R. APP. P. 47.1; McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex. 2001) (holding that courts have no jurisdiction to issue advisory opinions); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (same); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (same). With regard to his separation-of-powers argument, Malcom has not shown that any of his objections to the statute affected him in this case. Absent an actual injury resulting from section 263.405(g)'s alleged violation of the separation of powers clause, Michael's challenge to the statute on this ground is not ripe, and any opinion by this court would be merely advisory. See, e.g., McAllen Med. Ctr., Inc., 66 S.W.3d at 232; Valley Baptist Med. Ctr., 33 S.W.3d at 822; Tex. Ass'n of Bus., 852 S.W.2d at 444. We overrule Michael's first issue.
II. Due Process
In his second issue, citing the Fifth and Fourteenth Amendments to the United States Constitution, Michael argues that section 263.405's required showing that an appeal is not frivolous violates constitutional guarantees of due process because it emphasizes the speed of judicial proceedings over accuracy and the best interests of the child. The Due Process Clause of the Fourteenth Amendment encompasses three types of protection. In re G.C., 66 S.W.3d 517, 524 (Tex.App.-Fort Worth 2002, no pet.) (citing Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990)). First, it incorporates many of the specific protections defined in the Bill of Rights. Zinermon, 494 U.S. at 125, 110 S. Ct. at 983. Second, the substantive component of the Due Process Clause bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. Id., 110 S. Ct. at 983. Third, the procedural aspect of the Due Process Clause guarantees fair procedure. Id., 110 S. Ct. at 983.
Michael's argument on this issue centers on the alleged unfairness resulting from the speed of the termination proceedings and the deadlines imposed by statute. As such, he complains about the fairness of the process of his termination, which falls within the procedural aspect of the Due Process Clause. See G.C., 66 S.W.3d at 525. Therefore, we must determine whether Michael has a liberty or property interest that is entitled to procedural due process protection, and if he does, what process is due. See id. (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1153-54 (1982)).
A parent's right to retain custody of his children is a constitutionally protected liberty interest and must be afforded procedural due process. See id. Evaluation of a claim of procedural due process deprivation requires a consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. (citing Heller v. Doe, 509 U.S. 312, 330-31, 113 S. Ct. 2637, 2648 (1993); Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976)).
Under the first factor, we recognize that a parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982), quoted in In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Turning to the second factor, we examine whether Michael has identified any risk of an erroneous deprivation of this interest through the procedures imposed by the statute relating to the trial court's determination of whether an appeal is frivolous.
Michael complains that although the appellate record is not due until sixty days after the order, see TEX. FAM. CODE ANN. § 263.405(f), the statute's deadlines require a party's counsel to file a statement of points on which the party intends to appeal within fifteen days of the final order, and the appellate court cannot consider any issue that was not specifically presented to the trial court in the statement of points. See id. § 263.405(b), (i). Michael asserts that these deadlines unfairly require appellate counsel to identify appellate issues and argue the merits of those issues without the benefit of a record.
Michael contends that he was harmed by this statutory deadline because, in his statement of issues, he challenged comments made by the trial court judge during voir dire. At the frivolousness hearing, the trial court judge asked to see the improper statements that she allegedly had made, but no record had yet been prepared by the time of the hearing. Furthermore, the State contended that Michael did not preserve the alleged error; without a record, however, Michael could not show the court that he had preserved the error. In addition, Michael points out two possible ineffective-assistance-of-counsel arguments that he could raise that do not appear in his statement of issues: that trial counsel did not adequately specify his factual insufficiency challenges and that trial counsel may have failed to preserve error regarding the judge's voir dire comments.
This court has held, however, that an appellant is not limited to raising on appeal only those issues contained in the statement of points filed in the trial court. See In re D.W., No. 2-06-191-CV, 2008 WL 467328, at *8 (Tex.App.-Fort Worth Feb. 19, 2008, no pet. h.) (holding section 263.405(i) void as violative of separation of powers because it unduly interferes with the appellate court's substantive power to rehear and determine issues on the merits that were decided in the court below). Therefore, even though the timing of the trial court's hearing may have required Michael's appellate counsel to identify appellate issues and argue their merit without the benefit of the record, he is not limited to those issues on appeal and may raise any preserved trial court error as grounds for reversal. See id.
Because we assume in our analysis of Michael's third issue that the alleged voir dire error was preserved, see infra p. 11, Michael does not need the record of voir dire in this case to show that he preserved the error, so he faces no harm from any lack of a reporter's record of voir dire.
Given that the appellate court can order the preparation of a reporter's record of the termination trial, not just of the frivolousness hearing only, and given that the appellate court is not limited to considering only those issues contained in the statement of points filed in the trial court, we conclude that Michael's objections to the "speed" of the statutory process do not constitute a risk that he would be erroneously deprived of his parental rights through the procedures imposed by section 263.405's required showing that an appeal is not frivolous. We overrule Michael's second issue.
Michael also complains that the statute applies provisions of the civil practice and remedies code to determine whether a termination suit is frivolous. See TEX. FAM. CODE ANN. § 263.405(d)(3) (requiring the trial court to hold a hearing to determine whether the appeal is frivolous as provided by section 13.003(b) of the civil practice and remedies code); TEX. CIV. PRAC. REM. CODE ANN. § 13.003(b) (Vernon 2002). He argues generally that termination suits are different from suits instituted by indigent litigants requesting a free transcript on appeal, the parties to whom civil practice and remedies code section 13.003(b) applies.
Again, however, Michael fails to show how application of this standard has harmed him personally or has created a risk of an erroneous deprivation of his parental rights. Without an actual injury resulting from the application of section 13.003(b) of the civil practice and remedies code to the family code's determination of the frivolousness of an appeal, we are not authorized to provide an advisory opinion weighing in on this argument. See McAllen Med. Ctr., Inc., 66 S.W.3d at 232; Valley Baptist Med. Ctr., 33 S.W.3d at 822; Tex. Ass'n of Bus., 852 S.W.2d at 444.
III. Determination of Frivolousness
In his third issue, Michael challenges the trial court's finding that any appeal from the termination order would be frivolous. An appeal is frivolous if it does not present a substantial question for appellate review. In re M.R.J.M., 193 S.W.3d at 671-72. We review a trial court's determination that an appeal is frivolous for an abuse of discretion. Id. at 672.
In his statement of points, Michael informed the trial court that he would assert voir dire error on appeal because "the trial court told the venirepersons that the case involved injured children that the parent had allegedly abused." Michael claims because his daughter, M.R.J.M., had not been injured and there were no allegations that Michael had harmed her or any other child, this comment was prejudicial and improper.
A trial court has great discretion in the manner it conducts a trial, and it possesses "the authority to express itself in exercising this broad discretion." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240-41 (Tex. 2001). Still, the presiding judge at a trial must conduct it in a fair and impartial manner and refrain from making comments that may tend to cause prejudice to a litigant or are calculated to influence the minds of the jury. Valenzuela v. St. Paul Ins. Co., 878 S.W.2d 667, 670 (Tex.App.-San Antonio 1994, no writ). The complaining party first must show that the comments were improper and then show that the improper comments prejudiced the complaining party. Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex.App.-Houston [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868 (1995).
The trial court's comment is not inaccurate; this case involved termination of parental rights to four children — M.R.J.M. and her three younger half-siblings. Two of those half-siblings had been injured, and the children's mother had pleaded guilty to charges of felony injury to a child. The mother testified that she believed her then-boyfriend had abused the children. Our review of the record reveals no testimony by any witness that Michael had physically abused M.R.J.M., and the jury was instructed to consider only the exhibits and evidence introduced under oath. Therefore, even assuming that Michael preserved this complaint in the trial court, we conclude that the trial court did not abuse its discretion by concluding that this remark did not present a substantial question for appellate review.
Michael also asserted in his statement of points that he would challenge the trial court's broad form submission of the jury charge. He admits that this challenge is contradicted by controlling Texas case law that specifically authorizes broad form submission in parental rights cases. See Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh'g); see also In re J.T.G., 121 S.W.3d 117, 128 (Tex.App.-Fort Worth 2003, no pet.) (applying E.B. to uphold jury findings on grounds for termination when multiple grounds for termination were sought and the trial court submitted the issue using a broad form question). Furthermore, his contemplated separation-of-powers challenge to section 263.405(i) has already been addressed and decided by this court in another recent case involving the same challenge. See D.W., 2008 WL 467328, at *8.
Finally, Michael also challenged in his statement of points the factual sufficiency of the evidence supporting the jury's finding of statutory grounds for termination and finding that termination was in M.R.J.M.'s best interest. The jury found that the State had proven by clear and convincing evidence at least one of the following: that Michael had knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, see TEX. FAM. CODE ANN. § 161.001(1)(D) (Vernon Supp. 2007); that Michael had engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, see id. § 161.001(1)(E); or that Michael had constructively abandoned the child and (i) the Department of Family and Protective Services had made reasonable efforts to return the child to him, (ii) he had not regularly visited or maintained significant contact with the child, and (iii) he had demonstrated an inability to provide the child with a safe environment, see id. § 161.001(1)(N).
We have reviewed the reporter's record and exhibits from the trial and have determined that the trial court acted within its discretion by determining that Michael's appeal would be frivolous. Based on all the evidence admitted at trial — including evidence of Michael's knowledge of M.R.J.M.'s mother's drug use, his failure to support, visit, or contact M.R.J.M. with any regularity, and his failure to comply with court-ordered services — as well as the other unmeritorious challenges raised in Michael's statement of points we agree that any appeal from the judgment would not present a substantial question for appellate review. See id. § 263.405(d); TEX. CIV. PRAC. REM. CODE ANN. § 13.003(b); see also M.R.J.M., 193 S.W.3d at 672 n. 7. Accordingly, we overrule Michael's third issue challenging the trial court's frivolousness finding.
Having overruled all four of Michael's issues, we affirm the trial court's order finding that Michael's appeal is frivolous.