COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00237-CV
IN RE A.R., A MINOR CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-98901J-13
MEMORANDUM OPINION 1
Following a bench trial, appellant E.R. (Father) appeals the trial court’s
order terminating his parental rights to his daughter, A.R. (Abby). 2 In his first
issue, Father contends that the evidence is legally insufficient to support the
grounds for termination pled by the Department of Family and Protective
Services (the Department). In his second and third issues, Father argues that
1 See Tex. R. App. P. 47.4. 2 To protect A.R.’s anonymity, we will use “Abby” as her alias. See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2). the trial court abused its discretion by denying his request for a 180-day
extension of the statutory dismissal date and by denying his motion for
continuance. We affirm.
Background Facts
R.M. (Mother) gave birth to Abby in May 2013. Soon after her birth, Abby
was placed with her grandmother and then with S.M. (Great-Aunt) because her
meconium tested positive for amphetamine. An oral-fluid drug test administered
at that time to Mother returned negative for amphetamine. 3 The Department
instructed Mother to submit to subsequent drug tests, which she missed.
Eventually, Mother submitted to a hair follicle test, which also returned negative.
Despite the negative drug tests, in August 2013, the Department filed a
petition that requested temporary sole managing conservatorship of Abby and
termination of Mother’s and Father’s parental rights to her if reunification could
not be achieved. At that time, Father was incarcerated for possessing less than
one gram of methamphetamine and possessing while intending to distribute
between four and two hundred grams of gamma hydroxybutyric acid (GHB). 4
3 The clerk’s record indicates that in May 2013, Mother admitted to using methamphetamine in 2012 and had previously tested positive for illegal drugs. 4 In March 2013, a trial court sentenced Father to eight years’ confinement for the possession-with-intent-to-deliver offense and six months’ confinement for the straight-possession offense. Father concedes that he was “incarcerated . . . at all times during the pendency of this case.”
2 The Department attached an affidavit to its petition to inform the trial court
of the events preceding Abby’s removal and of a previous case involving Abby’s
older brother, A.R. 5 The trial court named the Department as Abby’s temporary
managing conservator. Father filed an answer that contained a general denial.
The Department filed a family service plan. The plan set out a goal of
family reunification; explained the reasons for Abby’s removal; 6 and assigned
tasks to Mother and Father, including meeting Abby’s basic health and safety
needs, abstaining from drug and alcohol use and criminal activities, maintaining
legal and stable employment, and completing anger management and parenting
classes.
From October 2013 to July 2014, the Department monitored the parents’
compliance with the plan. In March 2014, the Department informed the trial court
that Father was confined from December 2012 to March 2013, was released for
about a month, and then went to prison for drug-related charges. The
Department also reported that Mother had failed a drug test in the summer of
2013 and that Father was still confined and had therefore not progressed toward
completing the requirements of the service plan. The Department changed
Abby’s permanency goal to adoption by a relative.
5 The Department removed A.R. from the home prior to Abby’s birth because Mother and Father were “making and selling drugs and using them.” 6 The service plan stated that Abby’s parents had “put their need for drugs above the needs of [the] child.”
3 In July 2014, when Abby was a little over a year old, the trial court held a
bench trial. Father requested a continuance and a 180-day extension of the
statutory dismissal date 7 to allow more time to complete his prerelease programs
and possibly be paroled. In his written motion for continuance, he argued,
[Father] is enrolled in a drug intervention and rehabilitation program . . . . He has substantially complied with requirements for services while in [prison], including but not limited [to] counseling, [c]ognitive intervention classes, CHANGES program (Changing Habits Achieving New Goals to Empower Success)[,] and participation in Pre-release Therapeutic Community. His completion of the programming will allow for early release from jail in October 2014. He was incarcerated at the time of removal, and was not named as a cause of removal of the child in this case.
After Abby’s attorney ad litem objected to the continuance or extension, the trial
court denied both requests and commenced a trial on the merits.
Father did not appear at the trial, but the State presented testimony from
the Department’s caseworker and Great-Aunt to support termination of his
parental rights. The trial court terminated his parental rights to Abby and
appointed the Department as permanent managing conservator. In the order,
the trial court found that termination was in Abby’s best interest; that Father had
knowingly engaged in criminal conduct that had resulted in his conviction,
confinement, and inability to care for Abby for two years from the date the
Department filed his petition; and that Father had engaged in conduct or
7 See Tex. Fam. Code Ann. § 263.401 (West 2014).
4 knowingly placed Abby with persons who had engaged in conduct that had
endangered her physical or emotional well-being. Father brought this appeal. 8
Sufficient Evidence for Termination
In his first issue, Father argues that the evidence is legally insufficient to
support termination because, in part, the Department failed to prove that
termination is in Abby’s best interest and that he “knowingly engaged in criminal
conduct that has resulted in [his] . . . (i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less
than two years from the date of filing the petition.” Tex. Fam. Code Ann.
§ 161.001(1)(Q), (2) (West 2014).
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings in favor of the parent.
8 The trial court also terminated Mother’s parental rights based on her voluntary relinquishment; she has not appealed.
5 In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55;
Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); E.N.C., 384 S.W.3d at 802.
Due process demands this heightened standard because “[a] parental rights
termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102
S. Ct. at 1397); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and
convincing if it “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.” Tex. Fam.
Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802. For a trial court
to terminate a parent-child relationship, the party seeking termination must
establish that the parent’s actions satisfy one ground listed in family code section
161.001(1) and that termination is in the best interest of the child. Tex. Fam.
Code Ann. § 161.001; E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84
(Tex. 2005).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder
6 could have done so. Id. We disregard all evidence that a reasonable factfinder
could have disbelieved. Id. We consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not. See id.
Section 161.001(1)(Q)
The Department may seek termination when a parent has knowingly
engaged in criminal conduct that resulted in the parent’s conviction,
imprisonment, and inability to care for the child “for not less than two years from
the date of filing the petition.” Tex. Fam. Code Ann. § 161.001(1)(Q). In other
words, subsection (Q) applies when a “parent is convicted and sentenced to
serve at least two years and will be unable to provide for his or her child during
that time.” In re A.V., 113 S.W.3d 355, 356, 360 (Tex. 2003) (holding that the
time period in subsection (Q) is prospective). Termination under subsection (Q)
ensures that the child will not be neglected during the time the parent is
incarcerated. Id.
Father contends that the Department could not sustain its burden under
subsection (Q) because he was eligible for parole before the expiration of two
7 years from August 2013, when the Department filed its original petition. 9
Supreme court precedent precludes this argument.
In In re H.R.M., while addressing subsection (Q), the supreme court
discussed the possibility of parole and the ability of a parent to care for a child
while incarcerated. 209 S.W.3d 105, 108–09 (Tex. 2006). The court determined
that evidence of the availability of parole is relevant to determine whether the
parent will be released within two years; however, the possibility of parole does
not prevent a finding that the parent will remain incarcerated and unable to care
for the child. Id. at 109. The court noted that parole decisions are “inherently
speculative” and that the final decision regarding parole belongs to the parole
board. Id. The court reasoned that if the possibility of parole prevented a
factfinder from forming “a firm belief or conviction” that the parent would remain
in jail and be unable to care for the child, termination under subsection (Q) could
only occur when there was no possibility of parole. Id. Thus, the party seeking
termination would have to show that there is no chance of early release, which
would change the burden of proof from clear and convincing to beyond a
reasonable doubt. Id.; see In re K.D.B., No. 01-14-00041-CV, 2014 WL
2936008, at *5 (Tex. App.—Houston [1st Dist.] June 26, 2014, no pet.) (mem.
op.) (“While the evidence illustrated the possibility of Father’s release prior to
9 A document in the clerk’s record lists Father’s parole-eligibility date as December 7, 2013; his projected-release date as April 24, 2016; and his maximum-sentence date as January 5, 2021.
8 November 2014, as the court determined in H.R.M., such evidence did not
prevent the trial court from forming a firm belief or conviction he would remain
incarcerated after that date.”); In re N.R.T., 338 S.W.3d 667, 675 n.5 (Tex.
App.—Amarillo 2011, no pet.) (holding similarly).
The supreme court went on to consider how a parent can care for a child
while incarcerated. H.R.M., 209 S.W.3d at 110. The court stated in part, “Absent
evidence that [a caregiver] agreed to care for the child on behalf of the
incarcerated parent, merely leaving a child with a [caregiver] does not constitute
the ability to provide care.” Id.
Father offered evidence to show he might be released from prison within
the relevant two-year period but not evidence of his ability to care for Abby while
he is incarcerated. In his brief, Father states that he received an eight-year
sentence but was eligible for parole four months after the Department began
termination proceedings. Additionally, at the bench trial, Father offered
Exhibit B—operating procedures for the Changes Program—in support of his
potential early release from prison. In H.R.M., the supreme court stated that
parole eligibility and potential release within the two-year period is relevant, but
the court also observed that parole dates are purely speculative. See id. at 109.
Because Father’s early release is speculative and because his eight-year
sentence extends beyond the relevant two-year period, a factfinder could have
formed a firm belief or conviction that he would not be paroled and would remain
incarcerated for two years following the initial termination filing. See id.
9 Also, Father did not suggest any placements or provide proof that he is
capable of caring for Abby while he is incarcerated. Great-Aunt testified that she
was caring for Abby because she wanted to be Abby’s “forever parent” and
because it was in Abby’s best interest to be in a safe environment following her
removal from Mother’s care. Great-Aunt did not testify that in caring for Abby,
she was acting on Father’s behalf. Great-Aunt also testified that Father has not
provided any financial support for Abby and that she believes he is unable to take
care of her. She explained, “[T]he whole reason that [Abby’s brother] was taken
in the beginning is because he was living in a home with two parents who were
making and selling drugs and using them. And so the fact that [Father] had his
son living in that environment speaks volumes to me.”
Reading the record in the light most favorable to the verdict, we hold that
the evidence is such that a factfinder could reasonably reach a firm belief or
conviction that Father would be imprisoned and unable to care for Abby for two
years from the original filing date in August 2013. Thus, we overrule Father’s
legal sufficiency challenge concerning the trial court’s finding under
subsection (Q). 10
10 In holding that the evidence is legally sufficient to support termination under section 161.001(1)(Q), we need not address Father’s legal sufficiency argument concerning the trial court’s finding under section 161.001(1)(E). See Tex. R. App. P. 47.1; A.V., 113 S.W.3d at 362 & n.39; In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.).
10 Abby’s best interest
Father also contends in his first issue that the Department failed to prove
by clear and convincing evidence that termination is in Abby’s best interest.
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). We review the entire
record to determine best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.
2013). The same evidence may be probative of both the subsection (1) ground
and best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); see E.C.R., 402
S.W.3d at 249.
In determining the best interest of the child, we may consider the desires of
the child, the emotional and physical needs of the child now and in the future, the
emotional and physical danger to the child now and in the future, the parental
abilities of the individuals seeking custody, the programs available to assist these
individuals to promote the best interest of the child, the plans for the child by
these individuals or by the agency seeking custody, the stability of the home or
proposed placement, the acts or omissions of the parent which may indicate that
the existing parent-child relationship is not a proper one, and any excuse for the
acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest
finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384
S.W.3d at 807.
11 Father argues that the evidence is legally insufficient to satisfy several of
the Holley factors. But we conclude that Father’s criminal acts and instability,
along with Abby’s positive developments with Great-Aunt, support the trial court’s
finding that it is in Abby’s best interest to terminate Father’s parental rights and to
proceed with the Department’s permanency plan.
At the time of the termination trial, Father was incarcerated for possessing
and manufacturing controlled substances. His eight-year sentence was just the
most recent result from a series of criminal acts. He was previously convicted of
assaulting a woman by hitting her with a beer bottle, providing false identification,
displaying counterfeit insurance, and fraudulently using or possessing identifying
information.
Father’s most recent arrest occurred during a drug raid while Mother was
pregnant with Abby and in the presence Abby’s brother. Father and Mother were
manufacturing GHB and were also in possession of methamphetamine. Julie
Haenes Jacobson, the Department’s caseworker, testified that Father’s criminal
behavior and continued incarceration demonstrate his inability to parent and
expose Abby to potential danger.
At the termination trial, Jacobson suggested adoption by a related
caregiver as a permanent plan for Abby. The Department placed Abby with
Great-Aunt when she was only twenty-two days old. Great-Aunt and Jacobson
testified that Abby is thriving and that she has bonded with Great-Aunt and
Abby’s brother, who is also in Great-Aunt’s care. Jacobson testified that Abby is
12 in a safe and stable environment and that it is in her best interest to remain in
that environment. Jacobson testified that because Father is currently
incarcerated and can only speculate about his potential release date, he lacks
the stability Abby needs. Jacobson said that Great-Aunt provides Abby’s “sense
of stability and security.”
Great-Aunt testified that she is currently in the process of adopting Abby’s
brother and that she would like to adopt Abby as well. She testified that she
expected to be able to benefit from an adoption assistance program offered by
the Department. Also, Great-Aunt testified that Father wrote her a letter stating
that he approves of her raising Abby and her brother. Great-Aunt described
Abby as healthy, happy, loving, and developmentally on target.
We conclude that although the record contains some evidence that a
factfinder could have weighed against a decision to terminate, 11 the trial court
could have formed a firm belief or conviction that termination is in Abby’s best
interest from the evidence of Father’s lengthy criminal history (including drug-
related offenses and a violent offense), continued incarceration, and lack of
stability and ability to care for Abby now and in the future. See In re M.R., 243
S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (concluding that
11 For example, Great-Aunt testified that she sends Father pictures and updates on Abby and her brother and that Father asks about Abby’s welfare. The record also suggests that Father accepted greater punishment for his involvement in the drug charges so that Mother could avoid jail time and give birth to Abby.
13 incarceration can be considered as endangering conduct when it affects a
parent’s ability to provide safe living conditions or to ensure the safety and well-
being of the child); In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth
2003, no pet.) (concluding that a parent’s continuous drug use, unstable lifestyle,
and criminal record threatened the physical well-being of a child and put the child
at risk of injury). Additionally, the trial court’s decision to terminate could have
been guided by the evidence of Great-Aunt’s bond with Abby, Abby’s bond with
her brother, and Great-Aunt’s ability to properly care for her. 12 See In re Z.C.,
280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (stating that
stability and permanence are important to the growth of a child and affirming a
finding that termination was in the child’s best interest when the child was thriving
in foster care); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (op. on reh’g) (considering a child’s bond with a foster family
as a factor supporting the child’s best interest).
We hold the evidence to be legally sufficient to support both the
termination ground under section 161.001(1)(Q) and the best-interest
requirement of section 161.001(2). We overrule Father’s first issue.
12 Father concedes on appeal that Great-Aunt provides Abby with a “safe and stable home.”
14 No Abuse of Discretion by Denying Request for Extension and Continuance
In his second and third issues, Father argues that the trial court abused its
discretion by denying his request for a 180-day extension of the statutory
dismissal date and by denying his motion for continuance.
Motion for extension under section 263.401
The family code requires a trial court to commence a termination trial on
the merits, grant an extension, or dismiss a termination suit by the first Monday
after the first anniversary of the date the court rendered a temporary order
appointing the Department as temporary managing conservator. 13 Tex. Fam.
Code Ann. § 263.401(a)–(b). The extension, not to exceed 180 days, may be
granted if “the court finds that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the [D]epartment and
that . . . [the extension] is in the best interest of the child.” Id. § 263.401(b); see
In re A.J.M., 375 S.W.3d 599, 605 (Tex. App.—Fort Worth 2012, pet. denied) (en
banc) (op. on reh’g) (“[I]t is clear that the legislature preferred and directed trial
courts to complete their state-involved terminations by the one-year
anniversary.”).
In the trial court, Father argued (through counsel) that he was entitled to an
extension because he had taken “both his own charges and [Mother’s charges]
so that [she] could deliver” Abby; because he had participated in rehabilitation
13 The trial court rendered such an order in September 2013.
15 programs while confined; and because he could be released during the extension
period, therefore allowing him an opportunity to “prove himself, get a job, get
housing, and show the Department that he was prepared to take care of his
child.” The Department responded by contrasting Father’s uncertainty with
Abby’s need for permanency and by contending that Father could be confined
until 2021 based on his sentence. Mother and Abby, through her attorney ad
litem, also opposed the extension. The trial court denied Father’s motion. On
appeal, he contends that the trial court should have extended the dismissal date
to “determine whether [he] was a viable placement option for [Abby].”
We apply an abuse of discretion standard when reviewing a trial court’s
refusal to extend the dismissal date. See A.J.M., 375 S.W.3d at 604; In re D.W.,
249 S.W.3d 625, 647 (Tex. App.—Fort Worth), pet. denied, 260 S.W.3d 462
(Tex. 2008). We must decide whether the trial court acted without reference to
any guiding principles or whether the act was arbitrary or unreasonable. D.W.,
249 S.W.3d at 647.
In his brief, Father contends that he could have been released as early as
October 2014, but as we explained above, his release was ultimately contingent
on the parole board’s decision. See H.R.M., 209 S.W.3d at 109. Also, Jacobson
explained that it is in Abby’s best interest to be placed in the care of the
Department pending adoption by Great-Aunt. Jacobson testified that Abby
“deserves permanency now” and that Father “is unavailable to provide her with
that permanency, [or] to provide her with a social and home environment which
16 would be safe and stable.” The family code presumes that “the prompt and
permanent placement of the child in a safe environment” is in the child’s best
interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).
The trial court could have reasonably given weight to Abby’s need for
permanence and could have rationally determined that Father’s speculative
possibility of parole within the 180 days was not an extraordinary circumstance
that justified an extension. See Tex. Fam. Code Ann. § 263.401(b); see also
In re A.C.H., No. 02-11-00072-CV, 2012 WL 1345759, at *15 (Tex. App.—Fort
Worth Apr. 19, 2012, no pet.) (mem. op.) (holding that a trial court did not abuse
its discretion by denying an extension when the mother was scheduled to be
released from jail soon but had a pending criminal case that may have resulted in
more incarceration). Thus, we hold that the trial court did not abuse its discretion
by denying Father’s request for the extension. We overrule his second issue.
Motion for continuance
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002). We must determine whether the trial court’s action was so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law. Joe v.
Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). Father again
argues that a continuance would have given him the opportunity to complete his
prerelease services and possibly be paroled. As discussed above, the trial court
considered the motion under guiding principles and determined that a
17 continuance was not needed. See id. The court’s denial was not unreasonable.
See id. Because the trial court acted reasonably and under the appropriate
guiding principles, including the family code’s preference for a prompt and
permanent placement, we hold that the trial court did not abuse its discretion by
denying Father’s motion for continuance. Thus, we overrule Father’s third issue.
Conclusion
Having overruled all of Father’s issues, we affirm the trial court’s order
terminating his parental rights to Abby.
/s/ Terrie Livingston
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DELIVERED: January 15, 2015