Opinion
No. 04-17-00250-CV
09-27-2017
IN THE INTEREST OF C.A.L.B., a Child
MEMORANDUM OPINION
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 16-03-0129-CVW
Honorable Melissa Uram-Degerolami, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
This is an accelerated appeal from the trial court's order terminating appellants' parental rights to their child, C.A.L.B. In two issues, appellants (1) assert the trial court erred by denying their motion for continuance and (2) challenge the sufficiency of the evidence in support of the trial court's finding that termination of their parental rights was in C.A.L.B.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016). We affirm.
C.A.L.B., born on September 7, 2014, was two years old at the time of trial.
Although appellants are represented by separate counsel on appeal, appellate counsel filed a joint brief.
MOTION FOR CONTINUANCE
Appellants are C.A.L.B.'s mother ("K.") and father ("C."). On March 9, 2016, the Texas Department of Family and Protective Services (the "Department") filed a petition to terminate appellants' parental rights. On March 8, 2017, the trial court denied K.'s motion for continuance. In the first issue on appeal, K. asserts the trial court erred by denying the motion because extraordinary circumstances warranted extending the statutory dismissal date of the case. Appellants argue they both needed additional time to complete their respective family service plans because the Department caused the delay.
"Unless the court has commenced the trial on the merits or granted an extension[,] on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child." TEX. FAM. CODE § 263.401(a) (West Supp. 2016). "Unless the court has commenced the trial on the merits, the court may not retain the suit on the court's docket after the time described by Subsection (a) unless the court finds 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." Id. § 263.401(b). We review a trial court's decision to grant or deny an extension of the dismissal date under the abuse of discretion standard. In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied).
Before the termination trial commenced, the trial court heard the motion for continuance. Patricia Boone, a clinical social worker and the therapist for both parents, testified she began therapy with C. in December 2016 and K. in January 2017. Boone said K. attended her appointments and was making progress. She believed it was "possible" that, with additional time, K. could sufficiently progress to achieve reunification with her child. Boone's goals for C. included remaining sober and not reverting back to drug use when faced with an obstacle, at which point they could begin to work on his other issues. She said C. also attended all his appointments. When asked if C. would be successful given the services he is receiving, Boone replied, "I'm always hopeful when it comes to my clients. It's up to him. If he is going to be successful, it is all up to him." She said C. has made "very minimal" progress over the six weeks she has seen him because both parents continued to use drugs until recently.
William Harris, a licensed chemical dependency counselor intern, said he began counseling with K. on January 30, 2017. He believed K. had a strong desire to succeed, but not enough time had passed to enable him to assess whether she actually wanted to change her life. When asked if he would recommend to the court that K. be given additional time for drug rehabilitation, Harris responded, "Well, I'd like for us as a treatment facility to have more time with [K.]. I think that it would be beneficial if she did have that." K. had two negative drug tests after he began counseling with her. Harris said he began treatment with C. on February 6, 2017, and C. receives the same type of counseling as K. He also believed it was possible C. could change his life with additional time. He said C.'s March 1, 2017 drug test came back positive for methamphetamine and marijuana, but negative on March 7.
K. testified she completed her parenting class and a psychological evaluation, and she attends domestic violence classes and drug counseling. She believed she had made changes in her life over the last few months and she wished she had begun treatment sooner. She asked the court to give her more time to be successful. K. signed her family service plan on March 18, 2016. When asked why it took so long for her to begin her services, K. replied, "[b]ecause of my addiction." She admitted she used methamphetamines about two months before the termination trial commenced. K. also admitted that before she began her current domestic violence class and drug treatment, she was dropped from another program because she missed more than two appointments. She said she had to wait five weeks to be enrolled in the current program.
C. said he completed parenting classes and is engaged in individual and couple's counseling, and drug counseling. C. believed that with his services and if the extension of time was granted, he and K. would not fall behind, and he could "only do great things from here on out with the extension." C. stated that at a February 3, 2017 mediation, he was told his and K.'s efforts were "too little too late." He admitted he relapsed after the mediation because he thought the Department believed his efforts were meaningless.
Both parents believed a change in caseworkers and delay in paperwork contributed to the delay in them beginning services after they were dropped from an earlier program.
A parent's failure to begin complying with the family service plan until shortly before trial does not constitute an extraordinary circumstance when the requirements necessary to obtain a child's return were known well in advance. See In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet. denied); see also Shaw v. Tex. Dep't of Family & Protective Servs., No. 03-05-00682-CV, 2006 WL 2504460, at *8 (Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem. op.) (failing to make progress on service plan for eight months did not amount to "extraordinary circumstances" that authorized continuance).
In this case, although the Department may have contributed to the delay due to a paperwork-failure, both parents were aware of the requirements necessary for the return of their son in March 2016, but made little progress in fulfilling those requirements until only a few months before trial commenced almost one year later. The delay in reinitiating services was triggered by the parents' failure to attend their classes. Actions that are considered to be a parent's fault generally do not constitute an extraordinary circumstance. In re O.R.F., 417 S.W.3d at 42.
Under these circumstances, we cannot conclude the trial court's refusal to extend the statutory dismissal date was an abuse of discretion.
BEST INTEREST
After the trial court denied the motion for a continuance at the March 8, 2017 hearing, trial on the merits commenced. However, the trial court almost immediately continued the trial to March 29, 2017. Patricia Boone again testified she was the therapist for both parents; she began treating C. on December 15, 2016, and K. on January 4, 2017; and she sees them every two weeks. Her therapeutic goals for K. included maintaining a drug and alcohol free lifestyle, demonstrating effective communication and life skills, identifying faulty thinking, creating a safety plan, showing the Department she is able to care for C.A.L.B., and utilizing appropriate parenting skills. Her therapeutic goals for C. were similar: maintain a drug and alcohol free lifestyle, maintain a violence-free lifestyle, demonstrate effective communication skills, examine his faulty thinking and negative or unhealthy thinking, develop a safety plan, and utilize appropriate parenting skills.
Since starting therapy with each parent, Boone has only had five appointments; therefore, although she believed the couple understood their goals, she could not characterize their therapeutic progress as a successful completion of individual therapy. The last appointment with C. was on February 23, 2017, and the last appointment with K. was on March 2, 2017. Boone said neither parent made any further appointments. Boone's ongoing concern for both was their drug use.
Boone said C. admitted he used methamphetamines on March 1, 2017, and she did not believe he had successfully addressed his therapeutic goals regarding his drug use. When asked if she believed either parent had the ability to provide a safe, stable, drug-free, and violence-free home for their son, Boone replied, "Not under drug usage."
On cross-examination, Boone said she usually set up the next appointment with each parent, and she did not do so with K. at their March 2 appointment, which may have been the reason K. did not attend any more sessions after March 2. Boone said her sessions with K. were positive, and K. was ashamed that her drug test results were so high and that she had told so many lies. Boone believed any possible future success was entirely up to the parents. Boone stated both parents told her they were actively engaged in other drug treatment classes. C. told Boone that he and C.A.L.B. were "very, very close." However, although C. said getting his son back was a motivation to stop using drugs, C. continued to use drugs.
William Harris again testified he provided drug and alcohol treatment counseling to both parents. Harris said K. had a history of methamphetamine use, and K. told him she needed counseling to get her son back and to live a better life. K. did not tell Harris she tested positive for methamphetamine in December 2016, and he did not become aware of her prior results until about a month after he began treatment with her. K. blamed the start of her drug use on a former boyfriend. During the course of treating both parents, K.'s urine test came back negative, but C.'s came back positive for methamphetamine.
C. told Harris that when C.A.L.B. was born, he decided to change his life and he curtailed his drug use for a while. Harris believed that if K. and C. had engaged in drug and alcohol treatment a year ago, when the case started, they would be in a better place than they were now having only recently started the program. However, he said K. was frustrated it took so long to get into treatment. According to Harris, the Department made the referral to him on December 12, 2016, but did not forward the paperwork to him until January 25, 2017. He scheduled their first appointments shortly thereafter. He believed C. would benefit from in-patient drug treatment, but K. told him she wanted to go instead because C. was the wage-earner for the family.
Sean Huckleberry provided domestic family violence classes for K. and C. He said he received the referral on November 23, 2016, and his service first contacted the couple on November 28. C. began engaging in the service in December 2016, and K. began in early January 2017. Huckleberry said K. attended two or three classes, but was dismissed from the program in either late January 2017 or early February 2017 because she gave him a falsified doctor's note excusing her from missing a session the previous week. When he confronted K., she did not admit she falsified the note, and she told Huckleberry she would provide supporting documentation. The documentation she provided was also falsified. C. attended eight or nine of the required twelve sessions. C. was discharged from the program on March 25 for excessive undocumented absences. However, Huckleberry said C. missed appointments because of his work schedule and he always tried to make up a missed session. Huckleberry was not aware of any domestic violence, and he was told the couple was referred to his program because the couple had been living in a house where there was drug use by another individual and gunfire by another individual.
K. testified she first became involved with the Department because "Christy" (C.'s father's girlfriend) falsified reports to the Department in an attempt to get C.A.L.B. taken away. K. said that, on February 27, 2016, Christy showed up unexpectedly at the house where appellants lived and caused a disruption, including firing a gun. Appellants called the police. K. said that every time someone came to check on her and her son, she was clean and the baby was healthy. She said C.A.L.B. always had food, was current on his medical needs, and he was safe and happy.
K. acknowledged signing her family service plan on April 18, 2016, and she understood the requirements of the plan, including random drug tests. She admitted she tested positive for methamphetamine since the date C.A.L.B. was removed from her care, but she stated she has not used methamphetamine since she began her treatment. K. said she began her services as required under the plan with the recommended provider, but was discharged because she missed two or three appointments. She said a change in caseworker delayed the required paperwork for a new referral. K. said she and C. successfully completed their parenting class. When she could not return to the original provider, K. paid for her own classes to show "initiative."
K. said they are ready to take C.A.L.B. home with them immediately because she and C. currently rent a three bedroom, two-bath house, and C.A.L.B. has his own room and bathroom, as well as clothes, toys, and a bed. K. said she has a strong bond with C.A.L.B., her visits with her son have been "excellent," and she and C. provide food, clothes, toys, and money. She said C.A.L.B. told her he misses his parents and wants to come home. She did not believe termination was in C.A.L.B.'s best interest and she was committed to staying sober and continuing her classes. She said she loves C., they have a good relationship, and domestic violence has never been an issue. K. testified she has seven children, the oldest born in 1998 and the youngest, C.A.L.B., born in 2014. None of the children are in her care. Her first contact with the Department arose in 2005 when she and her former husband were arrested for domestic violence. In January 2006, she pled to possession of methamphetamine with intent to deliver, but she said she "took the rap" for another man. At one point, her deferred adjudication was revoked and she spent ten and a half months in prison. She had four children at the time. K. tried marijuana when she was fourteen, cocaine when she was eighteen, and methamphetamine when she was twenty or twenty-one. She admitted to using methamphetamine during the pendency of this case because she was angry and depressed and she missed C.A.L.B.
C. testified he understood his family service plan requirements, which included random drug tests. C. admitted that during the pendency of the case he tested positive for methamphetamine and marijuana, and he was ashamed he allowed "a certain person, his comments, to push [him] to that limit." C. admitted two hair follicle tests conducted in December 2016 and February 2017 showed positive results for methamphetamine and amphetamine; but, he said those substances can be found in most generic over-the-counter drugs. C. completed his parenting class. He was discharged from individual counseling with the original provider for missed appointments because he was working two jobs. C. also expressed frustration that getting a new referral took time because of the change in caseworkers, which led to a delay in the referral paperwork. He admitted he was to attend twice-weekly narcotics anonymous meetings through the pendency of the case, but he only attended three meetings because of his job schedule. C. said he was arrested for criminal mischief when he was sixteen. He first tried marijuana when he was twelve years old, and he was arrested for possession in 2012. In 2013, he was arrested for possession of marijuana and carrying a gun. In 2014, he was arrested for unlawfully carrying a weapon (a collapsible baton). Another drug arrest occurred when he was on deferred adjudication, and he pled guilty although he claimed to be innocent.
Vanessa Brooks testified she was the first caseworker assigned to appellants' case in March 2016. The case was re-assigned to Lynn Baker on August 19, 2016. She thought appellants' first counseling session was in May 2016, their last in June or July 2016, and they missed five or six appointments. While she was the caseworker, she was concerned about appellants' methamphetamine use. She said appellants did not admit their drug use to her. When she confronted them about their drug use, they said the test results were due to the herbal tea they consumed. She was concerned that C.A.L.B. would be left alone if appellants were incapacitated because of their drug use.
During the first visits with their son, appellants brought candy and other sweets with no nutritional value. After Brooks addressed this issue with them, appellants' food choices improved. Brooks visited appellants' home, and did not believe it had any major issues. She said both parents were present when C.A.L.B. had surgery in July 2016. She believed K. was very loving towards her son.
Lynn Baker testified she became the caseworker in September 2016. She stated K.'s drug test levels decreased from May 2016 to December 2016, but the levels "sky rocketed" from December 2016 to February 2017. She said C.'s drug test levels increased from May 2016 to December 2016, and then "more than doubled" from December 2016 to February 2017. According to Baker, any delay in referrals caused by the Department did not excuse K.'s drug use. When asked which was more important almost twelve months into the case, housing or sobriety, she responded, "Sobriety."
She said William Harris did not recommend in-patient drug treatment because he was not aware of the high levels of methamphetamine in appellants' systems, and the only information he had came from appellants. She said the on-going concern for the Department was that appellants' hair follicle drug test levels continued to rise. C. never admitted his drug use to Baker. C. told her the high level of methamphetamine in his system was caused by gasoline in his hair from his job or because of the tea he consumed. K. provided no explanation for her levels. She believed appellants' parental rights should be terminated because of their drug use. However, she admitted drug tests results on March 31, April 3, and April 6 of 2016 did not raise any concerns.
Baker said K. interacted very well with C.A.L.B. during visits, but at the end of each visit, C.A.L.B. was ready to leave. Baker said the child ran to his foster mother and showed her everything he had, and he was excited to see his foster mother and foster brother. Baker said C.A.L.B. has lived with his non-relative foster family for about one year, and the family wishes to adopt him. The foster parents' home is stable, and the parents do not have any history with the Department or a criminal history. The foster father works, and the foster mother stays home with their three children and C.A.L.B. K. stated she would like the child placed with her cousin, but Baker has not been able to contact him.
Aleta Worden, the CASA volunteer, testified she has been with the case since April 2016. She has spoken with the parents and supervised visits with C.A.L.B. She said she originally favored reunification, but her opinion changed in October or November 2016 when the parents continued to use drugs, while at the same time, denying their usage. Now she agreed the parents' parental rights should be terminated because, throughout the case, they lied, misled, or falsified documents, and they continued their drug use. She was also concerned about prior arrests, criminal records, K.'s prior involvement with the Department, and the current placement of K.'s other children with family members. Worden thought the current foster parents would provide C.A.L.B. with a safe and stable environment.
Finally, C.A.L.B.'s foster mother testified C.A.L.B. has been in her home for thirteen months. She said C.A.L.B. is home with her a few days a week, and he attends preschool two days a week. When at home they play, read books, watch videos, go to the park, and play with friends. She and her husband, who was also present at the termination hearing, have been married for almost twelve years, have no past problems with the Department, and have no criminal record. They own their own home, where they have lived for almost nine years. She said her and her husband's extended family do not live nearby, but they have close friends who help them when needed.
She described C.A.L.B. as happy, content, and confident; and he gets along well with the other three children. He has no special needs and is not in therapy. She said C.A.L.B. is excited to visit with his parents, but after the visits, he is not upset. She believed he had a bond with appellants. She was not aware of any attempt to facilitate a relationship with C.A.L.B.'s half-siblings, but if the court allowed such a relationship, she was not opposed.
A trial court may order termination of the parent-child relationship only if the court finds by clear and convincing evidence one or more statutory grounds for termination and that termination is in the child's best interest. TEX. FAM. CODE ANN. §§ 161.001(b)(1),(2); 161.206(a) (West 2014). There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE § 263.307(a). In determining whether a child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Family Code section 263.307(b).
The trial court terminated both appellant's parental rights after finding the Department proved by clear and convincing evidence the following two statutory grounds: they engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being; and failed to comply with their court-ordered plan. See TEX. FAM. CODE §§ 161.001(b)(1)(E), (O). Neither appellant challenges these grounds on appeal.
We also apply the non-exhaustive Holley factors to our analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Finally, evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). A best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). A trier of fact may measure a parent's future conduct by her past conduct and determine whether termination of parental rights is in the child's best interest. Id.
When reviewing the sufficiency of the evidence, we apply the well-established standard of review. See TEX. FAM. CODE §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency).
There is no dispute K. has a long history with the Department, and her other six children are not in her care. There is no dispute both K. and C. have a history of drug use and criminal histories. Although both appellants stated their desire to live a drug and alcohol free life, each witness who testified in favor of terminating their parental rights stated the same concern—appellants' on-going drug use. The trial court was free to judge appellants' credibility and conclude appellants' continued drug use posed an emotional and physical danger to C.A.L.B. now and in the future. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) ("Appellant has been a drug addict for thirteen years and has enrolled in at least four different drug treatment programs, but failed to complete any of them. Appellant's drug addiction clearly poses an emotional and physical danger to C.A.J. now and in the future."). Although C.A.L.B. may have a bond with appellants, he has lived with his foster family for almost half his young life, and he is happy and safe. C.A.L.B. does not have any special needs, and his foster parents provide for his basic needs. The foster parents wish to adopt C.A.L.B. and they have a support system in place with friends.
In light of the evidence of K.'s history with the Department, the fact that she no longer has the care of her other six children, her continuous drug use, and her criminal record, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of K.'s parental rights was in C.A.L.B.'s best interest. In light of the evidence of C.'s continuous drug use and his criminal record, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of C.'s parental rights was in C.A.L.B.'s best interest.
CONCLUSION
We overrule appellants' issues on appeal and affirm the trial court's order terminating appellants' parent-child relationship.
Sandee Bryan Marion, Chief Justice