Opinion
06-21-00121-CV
04-01-2022
IN THE INTEREST OF A.M., A CHILD
Date Submitted: March 31, 2022
On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 21C0048-CCL
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
The Department of Family and Protective Services (the Department) brought a petition for protection of a child, for conservatorship, and for termination of Father's parental rights to his infant son, A.M. Following a bench trial, the trial court found that termination of the parent-child relationship was in B.F.'s best interest, and it terminated Father's parental rights pursuant to Section 161.001(b)(1), grounds (N) and (O). See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O) (Supp.). Father appeals, maintaining that (1) the trial court erred by failing to grant his motion for extension of the dismissal deadline due to extenuating circumstances, and (2) the evidence was legally and factually insufficient to support a finding that termination of his parental rights was in A.M.'s best interest. Because we find that (1) the trial court did not err when it denied Father's motion for extension and that (2) legally and factually sufficient evidence supported the best-interest finding, we affirm the judgment of the trial court.
Mother's parental rights were also terminated, but her rights are not at issue in this appeal.
To protect the child's privacy, we refer to appellant as Father and to the child by initials. See Tex. R. App. P. 9.8(b)(2).
(1) The Trial Court Did Not Err When it Denied Father's Motion for Extension
Father contends that the trial court abused its discretion when it denied his motion for extension of the dismissal deadline, the basis of which was Father's desire to complete his family service plan. Father orally asked the court for the extension on the day of trial.
Father had previously sought a continuance, which the trial court granted. In doing so, the trial court gave Father three additional months to comply with his family service plan.
A trial court can grant a 180-day extension of the dismissal deadline in a suit to terminate a parent-child relationship filed by the Department on a showing that "extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child." Tex. Fam. Code Ann. § 263.401(b) (Supp.). "We review a trial court's decision to grant or deny an extension of the dismissal date under an abuse of discretion standard." In re A.B., No. 06-20-00073-CV, 2021 WL 1216884, at *8 (Tex. App -Texarkana Apr. 1, 2021, no pet.) (mem. op.) (citing In re A.S., No. 12-16-00104-CV, 2016 WL 5827941, at *1 (Tex. App-Tyler Sept. 30, 2016, no pet.) (mem. op.)). "The focus on granting this extension 'is on the needs of the child.'" Id. (quoting In re A.J.M., 375 S.W.3d 599, 604 (Tex. App-Fort Worth 2012, pet. denied)). If the party seeking the extension fails to show how the requested extension would have been in the child's best interests, denying an extension is not an abuse of discretion. In re D.R., 631 S.W.3d 826, 837 (Tex. App-Texarkana 2021, no pet.).
In this case, Father did not comply with Rule 251 of the Texas Rules of Civil Procedure, which states, "No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex.R.Civ.P. 251. "Where the terms and provisions of Rule 251 have not been complied with, it will be presumed that the trial court had not abused its discretion in denying continuance." Ohlausen v. Thompson, 704 S.W.2d 434, 436 (Tex. App-Houston [14th Dist] 1986, no writ). In addition, "[i]f a motion for continuance is not made in writing and verified, it will be presumed that the trial court did not abuse its discretion in denying the motion." In re E.L.T., 93 S.W.3d 372, 375 (Tex. App -Houston [14th Dist] 2002, no pet.) (citing Ohlausen, 704 S.W.2d at 436).
Because Father did not comply with Rule 251, we presume that the trial court did not abuse its discretion. Moreover, the complained-of motion for extension was the second time Father asked for additional time to complete his service plan. "Failure to begin complying with a family service plan until several weeks before trial does not constitute an extraordinary circumstance when the requirements necessary to obtain the return of the child were known well in advance of that time." In re O.R.F., 417 S.W.3d 24, 42 (Tex. App -Texarkana 2013, pet. denied). Issues that are "considered to be the parent's fault" will not generally constitute an extraordinary circumstance. In re A.J.M., 375 S.W.3d at 604.
"The statute's clear preference is to complete the process within the one-year period." Id. at 605. "Because the statutory language prefers finality to suit and because we cannot say the trial court abused its discretion in denying [Father's] extension," we overrule this point of error. Id.
(2) Legally and Factually Sufficient Evidence Supported the Best-Interest Finding
Father also claims that the evidence was insufficient to support the finding that it was in A.M.'s best interest to terminate Father's parental rights to A.M. We disagree.
Tanya Baker, a Department investigations supervisor, testified that the Department became concerned about A.M.'s welfare after it received a report that A.M. had tested positive for methamphetamine. Baker explained that, typically, when a child tests positive at birth, the mother has been using the substance during her pregnancy. Because A.M. was born positive for drugs, he appeared to be "feeble," had withdrawal issues, experienced feeding difficulties, and had other medical concerns. A.M. was removed from the parents' care at that time. According to Baker, Father did very little to prevent A.M.'s removal. He did, however, provide a relative placement option, but that proposed placement was not approved to care for A.M.
Baker did not participate in the actual investigation. Instead, she supervised investigator Terita Williamson. Baker testified that, before trial, she had reviewed A.M.'s file and was familiar with the case.
In the initial part of the investigation, Father reported that he had a history with marihuana use but had not used any other type of illegal drugs, including methamphetamine, for the last five or six years. He also reported that he had been released from prison in 2010 for manufacturing methamphetamine. At the Department's request, Father submitted to a urinalysis drug screen, but he refused to complete a hair-follicle test "because he had paint in his hair." He did, however, agree to take the hair-follicle test the next day. When he was contacted by investigator Williamson as to whether he had taken the test, he informed her that his attorney had advised him not to submit to it. Despite Mother testing positive for methamphetamine at the hospital, Father stated that he did not believe Mother used illegal drugs during her pregnancy and that he had never seen her use any type of illegal substances. Although A.M. was born in the latter part of December, Father had visited him on only three occasions by January 11.
Father testified that he was arrested on a drug-related charge in 2001.
The results of the urinalysis came back negative.
In February 2021, the court entered temporary orders, setting forth the steps that Father would be required to take in order to be reunified with A.M., including, but not limited to, the following: (1) submit to a psychological or psychiatric evaluation; (2) submit to counseling to address the issues that led to the removal of A.M.; (3) attend, participate, and complete parenting classes; (4) submit to drug and alcohol testing and assessments; (5) submit to a home study; and (6) comply with the remainder of the family service plan.
In March 2021, Father attempted to execute a full relinquishment of his parental rights.In his affidavit of relinquishment, Father agreed that it would be in A.M.'s best interest for a family friend to adopt him. After a home study was completed, it was determined that the family friend would not be a suitable placement for A.M.
The relinquishment affidavit stated, "I understand . . . that once the Court terminates my parental rights, I have no further say concerning my child." Instead of choosing to go to court, Father wanted the affidavit to be presented to the court "[b]ecause [he did not] want to testify in person." Father conceded that termination of his parental rights to A.M. was in A.M.'s best interest.
There was some evidence that Father had signed a second affidavit of relinquishment of his parental rights to A.M.; however, Father claimed he only signed one relinquishment affidavit.
Jasmine Turner, a conservatorship caseworker for the Department, testified that, when she first approached Father about participating in services, he showed no interest in doing so. Turner stated that Father could have started the six-week parenting class in February 2021 but that he did not complete the class until October 2021.
According to Turner, Father was required to complete a substance-abuse assessment, which determines whether a parent needs substance abuse treatment, but he failed to participate in the assessment. Turner explained that Father was ordered to complete the assessment due to the nature of A.M.'s removal and because he had been incarcerated in Arkansas because of a drug-related conviction. Likewise, Father did not comply with the drug-testing requirements. Father was offered approximately forty-seven to fifty chances to submit to drug tests, and the only test he actually submitted to was completed on December 9, 2021. That December 9 test showed that Father was positive for amphetamine and methamphetamine and that the urine specimen he gave had been diluted. Turner was asked if there was any reason for her to believe that Father was currently using drugs, and she responded, "Yes. I've asked him several months to drug test for me, and he has not, so to me, that indicates that there's some drug usage."
Turner later explained that Father went on two occasions to submit to drug testing, explaining, "I am unsure why he didn't drug test. I was told by Healthcare Express that he came after hours, but then I was told by [Father] that they didn't have the proper paperwork for him to drug test, which was not true."
Father was also required to submit to a psychological evaluation, which he did at the end of October. The evaluation recommended that he receive trauma-informed counseling, counseling with the mother, and substance-abuse treatment. According to Turner, Father did not comply with any of those recommendations. Moreover, despite being ordered to participate in weekly individual counseling in February 2021, Father did not begin participating in therapy until October 2021. Turner calculated that, had Father started attended counseling sessions at the time it was ordered, he could have attended roughly forty-nine sessions.
Father was employed, but he had not provided any support for A.M.'s needs. According to Turner, Father had not visited A.M. since January, and "it was safe to say he[] [was] not involved in [his] child's life." In sum, since the beginning of the case, Father had not provided diapers, formula, or financial support. He had not asked whether A.M. had been reaching his developmental milestones or if he had any medical conditions
A.M. was currently in a foster home, with foster parents who had made the effort to go to the hospital to learn about A.M.'s special needs. According to Turner, A.M. had lived with the same foster parents for nearly a year, and a bond existed between them. While living with his foster family, A.M. received excellent care, started therapy, began meeting his milestones, and was comfortable in their home. Turner stated that she believed the termination of Father's parental rights was in A.M.'s best interest.
Father testified that his relationship with Mother ended "because she had the baby dirty on drugs." Father claimed not to know that Mother had been using illegal drugs. According to Father, he had attended ten or eleven counseling sessions by the time of trial. Father agreed that he had submitted to a psychological evaluation in October and had just received the results near the time of the hearing. When asked why he would not submit to a hair-follicle drug test, Father stated, "I had paint thinner and paint all in my hair, and I didn't know what it would do." He conceded that the most recent drug test for the Department, which occurred on December 9, returned with a positive result. Yet, he maintained that, within the next week, he took two drug tests that showed he "was clean."
Father explained that he had not had a relationship with A.M. because he refused to take the drug tests; however, he claimed that he would "love to" have a relationship with him. Father did not submit to the requested drug tests because he "couldn't take off every single day for something. [He had] to keep [his] job so [he]'d be able to support [A.M.]." Father stated that he carried A.M. as a dependent on his health insurance. When asked why he felt like it was not in A.M.'s best interest to terminate his parental rights, Father stated, "Because I'm his father, and I think he'd be better off with his own parent that [sic] somebody else, a stranger." Father conceded that he had gotten "a late start" on his service plan and, and because of that, he asked the court for a continuance.
On cross-examination, Father denied that the Department had made forty-seven to fifty requests for him to submit to a drug test, stating, "I only received twelve messages for me to go drug test. It was on my phone, and I've saved them all." He also claimed that he did not go to counseling sessions "[b]ecause [he] didn't know anything about them until September." Father denied that the drug-testing opportunities and counseling sessions were available to him beginning in February 2021 because Mother "was keeping everything from [him], and [he] knew nothing of it." Lastly, Father said that he never sat down with a Department caseworker for the purpose of reviewing his service plan. When he was reminded that the trial court had admonished him during a hearing that the failure to follow the court's service plan could lead to the restriction or termination of his parental rights, Father stated, "Well, I never heard none of that." Even though he conceded that he had lived with Mother, had a relationship with her, and slept in the same bed as she did, Father continued to maintain that he had no idea that Mother was using illegal drugs.
Linda Jacobs, Father's ex-wife, testified that she had been married to him from 1989 until 2012. Jacobs brought three children into that marriage, making Father their stepfather. Jacobs said that Father "was a very good dad" to her children. According to Jacobs, she had never seen Father use illegal drugs or any evidence of such use, but she conceded that Father had been to jail on a drug-related charge. In Jacobs's opinion, if given a chance, Father would be a "great" parent. On cross-examination, Jacobs conceded that she did not know much about the case, "just what she heard [that day]." She was unaware that Father had tested positive for methamphetamine a week before trial.
Joey Elliott, an advocate coordinator for Court Appointed Special Advocates (CASA) for children in Bowie County, testified that her goal had been to reunify Father with A.M. and that she had done everything possible to achieve that goal. Elliott stated that she was normally able to reach Father via text messaging. During the text conversations, Elliott would remind Father how important it was for him to submit to drug testing. Elliott explained, "[Father] shared with me that he doesn't feel that it's necessary for him to drug test, that his past should not be held against him." Elliott had the opportunity to visit with A.M., and she believed that he was doing "[v]ery well." She said that, in the beginning, he was very feeble and had many issues, including withdrawal symptoms. According to Elliott, over the few months preceding trial, A.M. had been "growing and doing much better, thriving." The foster parents had been taking care of his specific needs, including his therapeutic needs. Elliott testified that, in the event Father's parental rights were terminated, A.M.'s foster parents intended to care for him long-term. Elliott said that Father had only texted her once to check on A.M. and that, on that occasion, he had simply asked for a photograph. Elliott explained, "But other than that, it was more about the aggravation that the Department was in his life and it wasn't fair because the mom was the one doing drugs and he didn't feel like he should have to do those things." When asked what options would be in A.M.'s best interest, Elliott stated, "You know, just termination of rights and let [A.M.] continue into placement of stability and start his life." After pointing out that Father had recently begun to comply with his service requirements, Elliott was asked if she believed it was in A.M.'s best interest to allow Father to continue working services. She responded, "My concern is that it's already been a year. There's been twelve months that have gone by, and I don't think that continuing -- like there's just a short period of time we can continue this." Elliott said that, taking into consideration that Father had only submitted to one drug test during the majority of the case, "it would be very difficult for [her] to change [her] opinion."
"The natural right existing between parents and their children is of constitutional dimensions." In re L.E.S., 471 S.W.3d 915, 919 (Tex. App -Texarkana 2015, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). "Indeed, parents have a fundamental right to make decisions concerning 'the care, custody, and control of their children.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof-clear and convincing evidence-is required at trial." Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 919-20 (quoting In re A.B., 437 S.W.3d at 500).
"[Involuntary termination statutes are strictly construed in favor of the parent." Id. at 920 (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App-Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20)). "In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." Id. (citing In re E. N.C., 384 S.W.3d 796, 798 (Tex. 2012)). "'Clear and convincing evidence' is that 'degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" Id. (quoting Tex. Fam. Code Ann. § 101.007); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). "This standard of proof necessarily affects our review of the evidence." Id.
"There is a strong presumption that keeping a child with a parent is in the child's best interest." In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App-Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)). "Termination 'can never be justified without the most solid and substantial reasons.'" In re N.L.D., 412 S.W.3d 810, 822 (Tex. App -Texarkana 2013, no pet.) (citing Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) (quoting State v. Deaton, 54 S.W. 901, 903 (Tex. 1900))).
"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, 'the rights of natural parents are not absolute; protection of the child is paramount.'" In re L.E.S., 471 S.W.3d at 920 (citing In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App-Texarkana 2015, no pet.)).
Because Father concedes that legally and factually sufficient evidence supported the trial court's findings that he engaged in two statutory grounds for termination of his parental rights to A.M., the child's best interest is the only issue under consideration in this appeal.
In determining the best interests of the child, courts consider the following Holley factors:
(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.In re N.L.D., 412 S.W.3d at 818-19 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see In re E. N.C., 384 S.W.3d 796, 807 (Tex. 2012); see also Tex. Fam. Code Ann. § 263.307(b). Further, in the best-interest analysis, we may consider evidence used to support the grounds for termination of parental rights. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that" termination of the parent-child relationship was in the best interest of the child. In re L.E.S., 471 S.W.3d at 920 (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App -Texarkana 2011, no pet.)). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing In re J.P.B., 180 S.W.3d at 573).
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine 'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the . . . allegations.'" Id. (citing In re H.R.M., 209 S.W.3d at 109 (quoting In re C.H., 89 S.W.3d. at 25)).
"If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting In re J.F.C., 96 S.W.3d at 266). To make this determination, we undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26)).
In this case, because A.M. was far too young to state his desires for his future, we will rely on the remaining Holly factors. As to A.M.'s emotional and physical needs, the Department presented evidence that, although Father had been employed for several years, he had not contributed to A.M.'s financial or physical needs. Likewise, Father wholly failed to care for A.M.'s emotional needs. In fact, Father conceded that, had he submitted to the requested drug tests, he would have been allowed to at least visit with A.M. Yet, Father claimed that he was too busy to comply with those requests due to his work schedule. Moreover, Father showed no promise of providing for A.M.'s emotional or physical needs in the future. When asked why he believed the court should deny the Department's petition to terminate his parental rights, Father's only response was that "[he was] his father," and he believed that A.M. would be "better off with him than with a stranger. However, Father did not explain why he believed A.M. was better off with him or offer any explanation as to his plans for ensuring A.M.'s future well-being.
Although Father denied knowing that Mother was using methamphetamine during her pregnancy, the trial court could have believed the contrary, because Father had lived in the same home with Mother during her pregnancy and had a history with drugs himself. That said, there was no evidence that Father took any measures to prevent Mother's continued drug use or to notify the proper authorities of her illegal activities. Moreover, Father repeatedly denied using drugs during the pendency of the case. Whether and, if so, the extent to which he may have been using illegal drugs during the case cannot now be confirmed, because Father refused to take a number of requested drug tests. Whether he was asked forty-seven times to submit to a test, as the Department contends, or twelve times, as Father maintains, is not controlling. Had he complied with even the twelve requests when they were made, it would have increased his chances for unification with A.M. Yet, it is likely not a coincidence that, when he did finally submit to a test just days before trial, he tested positive for the use of amphetamine and methamphetamine.
Other than testifying that he "would love" to have a relationship with A.M., there was no evidence to demonstrate Father's ability to care for A.M., his future plans for A.M., or the stability of his home. On the other hand, A.M.'s foster parents had taken care of A.M.'s physical and emotional needs from the minute they took possession of him. They visited the hospital just after his birth to learn about his specific special needs. They fed him, clothed him, took him to medical appointments, and saw to it that he attended his therapeutic appointments. There was also evidence that they intended to continue making those efforts in the future. In addition, although the adoption by Father's family friend did not come to fruition, the evidence that Father willingly executed an affidavit of relinquishment of his parental rights to A.M. is a good indicator of his future intentions, or the lack thereof, toward the child.
Father had many excuses for his acts and omissions, including, but not limited to, the following: (1) he was not informed of his parenting plan; (2) Mother withheld information from him; (3) he was unable to take a drug test because of his work schedule; (4) he refused to take a drug test because he had paint in his hair; and (5) the Department was being unfair to him.
After weighing all the Holley factors, we conclude that the evidence was legally and factually sufficient to support the trial court's finding that termination of Father's parental rights was in A.M.'s best interests. As a result, we overrule this point of error.
We affirm the trial court's judgment.
[*]Jack Carter, Justice, Retired, Sitting by Assignment