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Appellant Loni Barnett appeals from the trial court’s ruling that her appeal of that court’s order terminating her parental rights to her three children is frivolous. The trial court signed its termination order after a trial before the court. Barnett then filed a statement of points on appeal with the trial court as required by statute. See Tex. Fam. Code Ann. § 263.405(b)(2) (West 2008). Barnett’s filing also included a motion for a court-appointed attorney and a motion for a free appellate record based on her indigent status. After a hearing on Barnett’s statement of points and motions (the “263.405 hearing”), the trial court signed an order finding that Barnett was indigent and entitled to a court-appointed attorney on appeal, but also found that her appeal was frivolous and therefore she was not entitled to a free reporter’s record of the trial. On appeal to this Court, Barnett argues that her points on appeal, which include challenges to the sufficiency of the evidence of the statutory grounds for terminating her parental rights and improper admission of testimony by the trial court, are not frivolous.

We review a trial court’s determination that an appeal is frivolous under an abuse of discretion standard. In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.–San Antonio 2006, no pet.). However, reviewing a trial court’s finding that an indigent party’s evidentiary sufficiency appeal is frivolous proves a peculiar and challenging undertaking for appellate courts. As an indigent party is not entitled to a free trial record, the appellate court is often faced with a scenario in which, as here, the court must determine whether a challenge to the sufficiency of the evidence is frivolous without having the evidence itself–the reporter’s record and exhibits from the trial–before it. The difficulties inherent in such a situation are further exacerbated when the transcript of the 263.405 hearing contains little evidence on which the appellate court can rely in making its determination. In this case, the 263.405 hearing consisted solely of argument by attorneys representing the Texas Department of Family and Protective Services (TDFPS), Barnett, and Barnett’s children. While the statements of counsel for TDFPS included a summary of relevant evidence introduced at trial, this summary was not supplemented by any live testimony, and no other evidence of any kind was admitted by the trial court at the hearing. Accordingly, it is exceedingly difficult for us to determine with any confidence whether Barnett’s points, particularly evidentiary sufficiency, are frivolous based on the record of the 263.405 hearing.

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