in the Interest of A.B., a Child

• Court: Court of Appeals of Texas
• Decided: October 15, 2019
• Docket: 07-19-00180-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00180-CV

IN THE INTEREST OF A.B., A CHILD

On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. DR-2018D-059, Honorable Jack Graham, Associate Judge Presiding

October 15, 2019

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

In this accelerated appeal, appellant, father, seeks reversal of the trial court’s

judgment terminating his parental rights to A.B.1 In two issues, father contends that the

trial court erred in refusing to grant his motion for an extension of time pursuant to section

263.401(b) of the Family Code and asserts that the evidence is insufficient to support the

1 To protect the privacy of the parties involved, we refer to the child by initials and to the parents as

“mother” and “father.” See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b). The parental rights of A.B.’s mother were also terminated in this proceeding. Mother does not appeal. trial court’s finding that termination is in the best interest of A.B. Finding no error, we

affirm the judgment of the trial court.

Factual and Procedural Background

In March of 2018, the Texas Department of Family and Protective Services

became involved with A.B. after allegations of drug use by mother and father were

reported to the Department. The report alleged that A.B. tested positive for

methamphetamine at the time of her birth, indicating mother’s use of the drug during her

pregnancy. A.B. suffered drug withdrawals and significant health issues after her birth.

During the investigation by the Department, mother and father tested positive for

methamphetamine and mother acknowledged that she used methamphetamine

throughout her pregnancy. The father admitted to a history of methamphetamine use and

a prior conviction for injury to a child. The Department obtained an order of emergency

protection of A.B. and removed her from mother and father’s care.

In April 2018, the Department filed a petition seeking conservatorship and

termination of parental rights. Following an adversary hearing, the Department was

appointed temporary managing conservator and A.B. and a sibling were placed with a

foster family in Canyon.

The Department developed a service plan for father. According to the plan, father

was required to: abstain from the use of illegal drugs; submit to random drug screens;

locate stable housing and employment; take parenting classes; participate in a substance

abuse assessment with Outreach, Screening, Assessment, and Referral (OSAR) and

follow recommendations; complete a psychosocial assessment; attend individual

2 counseling; participate in rational behavior therapy (RBT); attend visits with A.B.; and pay

child support and medical support.

At the final hearing in April of 2019, father’s attorney asked for an extension of time

so that he could complete his court-ordered services. After father’s testimony, the request

for an extension was denied, and the Department investigator and caseworker testified.

The Department presented testimony concerning father’s lack of participation in

the services outlined in his plan of service. According to the caseworker, father did not

regularly visit or maintain contact with A.B., he did not pay his court-ordered child support

or medical support, he did not submit to random drug screens when requested in October

and November, he failed to maintain employment for six months, and he did not maintain

stable housing. Additionally, father did not submit to a drug and alcohol assessment, did

not participate in individual counseling or RBT, and did not complete a psychosocial

assessment.

According to father, he was sober for five to six months after the Department

became involved, and he attended six parenting classes. In August, he was involved in

an automobile accident and sustained a head injury that required him to be hospitalized

for a week. He then had “a bump in the road” and used methamphetamine. The last time

he used methamphetamine was February 1, 2019. After that, he moved from Hereford

to Austin to get away from drugs and “to make a better living for me and my daughter.” A

courtesy worker was assigned to father when he moved to Austin, but he did not complete

any court-ordered services. He returned to Hereford in March to attend the final hearing

which was originally scheduled in March. Since he has been in Hereford awaiting the

3 final hearing, he worked “day labor” at the feed yard. After the hearing, he plans to move

to Killeen to work construction and live with his girlfriend and cousin. He worked at a

Sonic Drive-In for about six weeks following his brief move to Austin. By father’s

admission, he had been clean for “two and a half months” at the time of the final hearing.

Father is not asking for A.B. to be placed with him immediately because, as he said, “I

realize I am not ready for that at this moment.”

The Department’s plan for A.B. is adoption. A.B. was placed with one of her

brothers in a foster home in Canyon. A.B. is bonded with her brother. At the time of trial

there was a pending home study on a maternal uncle who lives in Houston. The

Department’s goal is to place A.B. with her two brothers in the uncle’s home.

The trial court terminated father’s parental rights on the grounds of endangering

conditions, endangerment, previous conviction for injury to a child, constructive

abandonment, failure to comply with a court order that established actions necessary to

retain custody of the child, and use of a controlled substance in a manner that endangered

the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (L), (N), (O), and (P) (West

Supp. 2018).2 The trial court also found that termination was in the best interest of A.B.

See § 161.001(b)(2).

Applicable Law

A parent’s right to the “companionship, care, custody[,] and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

2 Further references to provisions of the Texas Family Code will be by reference to “section __” or “§ __.”

4 v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural

parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may

forfeit his or her parental rights by his or her acts or omissions, the primary focus of a

termination suit is protection of the child’s best interests. See id.

In a case to terminate parental rights by the Department under section 161.001 of

the Family Code, the Department must establish, by clear and convincing evidence, that

(1) the parent committed one or more of the enumerated acts or omissions justifying

termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear

and convincing evidence is “the measure or 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.” § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both

elements must be established and termination may not be based solely on the best

interest of the children as determined by the trier of fact. Tex. Dep’t of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—

Amarillo 2009, pet. denied). “Only one predicate finding under section 161.001[(b)](1) is

necessary to support a judgment of termination when there is also a finding that

termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362. We will affirm

the termination order if the evidence is both legally and factually sufficient to support any

5 alleged statutory ground the trial court relied upon in terminating the parental rights if the

evidence also establishes that termination is in the child’s best interest. In re K.C.B., 280

S.W.3d at 894-95.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ.) The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any particular witness. Id.

Where conflicting evidence is present, the factfinder’s determination on such matters is

generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso

1997, no writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,

the appellate court must defer to the factfinder’s determinations, as long as those

determinations are not themselves unreasonable. Id.

Standards of Review

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

finding “to determine whether a reasonable trier of fact could have formed a firm belief or

6 conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give appropriate

deference to the factfinder’s conclusions, we must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We

disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been not credible, but we do not disregard undisputed facts. Id. Even evidence

that does more than raise surmise or suspicion is not sufficient unless that evidence is

capable of producing a firm belief or conviction that the allegation is true. In re K.M.L.,

443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we

determine that no reasonable factfinder could have formed a firm belief or conviction that

the matter that must be proven was true, then the evidence is legally insufficient and we

must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96

S.W.3d at 266. We must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the Department’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have credited

in favor of the finding is so significant that a factfinder could not reasonably have formed

a firm belief or conviction, then the evidence is factually insufficient. Id.

Under an abuse of discretion standard, an appellate court may reverse the trial

court’s ruling only if the trial court acted without reference to any guiding rules and

principles, such that its ruling is arbitrary and unreasonable. Downer v. Aquamarine

7 Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Merely because a trial court may

decide a matter within its discretion in a different manner than an appellate court would

in a similar circumstance does not demonstrate that an abuse of discretion has occurred.

Id.

Analysis

Denial of extension under § 263.401(b)

Through his first issue, father argues that the trial court erred by finding that

extraordinary circumstances did not exist to grant an extension under section 263.401(b)

of the Family Code. See TEX. FAM. CODE ANN. § 263.401(b) (West Supp. 2018). The

trial court may extend the dismissal deadline if the movant shows “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.” § 263.401(b). A

trial court’s denial of an extension request under section 263.401(b) is reviewed for an

abuse of discretion. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth 2008), pet.

denied, 260 S.W.3d 462 (Tex. 2008) (per curiam). “The focus is on the needs of the child,

whether extraordinary circumstances necessitate the child remaining in the temporary

custody of the Department, and whether continuing such is in the best interest of the

child.” In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied) (en

banc). Actions that are “considered to be the parent’s fault” will generally not constitute

an extraordinary circumstance. In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana

2013, pet. denied).

8 Father moved to extend the dismissal deadline of the underlying termination suit

claiming that he needed additional time to complete the services outlined in his plan of

service and “prove to myself, mainly, that I can be the father I could be for my little girl.”

The reasons given by father for failing to complete his services include his involvement in

an automobile accident in August, his recent move from Hereford to Austin, and the

inability of his courtesy caseworker in Austin to schedule any of his required classes until

May. As to his drug use during the pendency of the case, father readily acknowledges

that he was “in a selfish state” and “it’s really my fault, but it’s who you put yourself around,

who you hang around is who you become.” The Department was opposed to the

extension because of father’s lack of participation in his court-ordered services. The

guardian ad litem for A.B. also objected to the extension.

We cannot find that the trial court abused its discretion by determining that there

were no extraordinary circumstances necessitating an extension. By his testimony, father

admitted to drug use during the pendency of this case and his failure to participate in any

drug rehabilitation services. Further, father presented no plausible evidence that his

failure to complete his court-ordered services constituted an “extraordinary circumstance”

that merited an extension or that an extension would be in the best interest of A.B.

Accordingly, we overrule the first issue.

Best interest of the child

In issue two, father challenges the legal and factual sufficiency of the evidence

supporting the best interest finding made under section 161.001(b)(2). A determination

of best interest necessitates a focus on the child, not the parent. See In re B.C.S., 479

9 S.W.3d at 927. Appellate courts examine the entire record to decide what is in the best

interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong

presumption that it is in the child’s best interest to preserve the parent-child relationship.

In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

1976). These factors include: (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 to promote the best interest of the

child, (6) the plans for the child by these individuals or by the agency seeking custody, (7)

the stability of the home or proposed placement, (8) the acts or omissions of the parent

that may indicate that the existing parent-child relationship is not proper, and (9) any

excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the

factors as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis

may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

10 establishment of a stable, permanent home has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

The desires of the child

At the time of trial, A.B. was thirteen months old and she was too young to express

her desires. However, the evidence showed that she had spent twelve months of her life

in a foster home due to father’s drug use and his inability to maintain steady employment

or to provide a stable home. Given the vulnerable age of A.B., this evidence weighs in

favor of the trial court’s best interest determination. See In re J.M.T., 519 S.W.3d 258,

271 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

The emotional and physical needs of and danger to the child

The next two factors are the child’s emotional and physical needs now and in the

future, and the emotional and physical danger to the child now and in the future. The

need for permanence is a paramount consideration for a child’s present and future

physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,

946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ). A factfinder may infer that past

conduct endangering the well-being of a child may recur in the future if the child is

returned to the parent. In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet.

denied), disapproved on other grounds by, In re J.F.C., 96 S.W.3d at 267. A trial court is

entitled to consider a parent’s history of drug use and irresponsible choices. In re J.O.A.,

283 S.W.3d 336, 346 (Tex. 2009).

11 A parent’s drug use can indicate instability in the home environment and may be

a factor to consider in determining a child’s best interest. In re J.M., No. 01-14-00826-

CV, 2015 Tex. App. LEXIS 2130 at *22 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no

pet.) (mem. op.). “[A] parent’s exercise of poor judgment currently and in the past

demonstrates an inability to provide adequate care for the child.” Id. at *21.

The evidence of father’s illegal drug use before and after the birth of A.B. suggests

that similar conduct will occur in the future. In re D.S., 333 S.W.3d 379, 384 (Tex. App.—

Amarillo 2011, no pet.) (recognizing that trier of fact may measure a parent’s future

conduct by his past conduct). Such inference is relevant not only to the stability of father’s

home, but also to A.B.’s emotional and physical needs now and in the future and to the

physical danger in which A.B. could be placed now and in the future. The father’s

unwillingness to attend drug treatment also suggests that similar conduct will occur in the

future, thereby constituting evidence of emotional and physical danger to the child now

and in the future. In re D.L.N., 958 S.W.2d at 941. The trial court could have concluded

that father is unable to meet the physical or emotional needs of A.B. and is unable to

protect A.B. from physical or emotional danger. These two factors weigh heavily in favor

of the trial court’s best interest determination.

Parenting ability and programs available to assist party seeking custody

The fourth and fifth factors will be discussed together. In reviewing the parenting

ability of the parent, a factfinder can consider the parent’s past neglect or past inability to

meet the physical and emotional needs of the child. In re G.N., 510 S.W.3d 134, 139

(Tex. App.—El Paso 2016, no pet.). “A parent’s drug use, inability to provide a stable

12 home, and failure to comply with his family service plan support a finding that termination

is in the best interest of a child.” In re S.B., 207 S.W.3d 877, 888 (Tex. App.—Fort Worth

2006, no pet.). The factfinder can infer from a parent’s failure to take the initiative to avail

himself of the programs offered to him by the Department that the parent “did not have

the ability to motivate himself to seek out available resources needed now or in the future.”

In re J.M., 2015 Tex. App. LEXIS 2130, at *21 (citing In re W.E.C., 110 S.W.3d 231, 245

(Tex. App.—Fort Worth 2003, no pet.)).

Father admitted that he continued to use drugs and that he failed to complete the

services directly related to the reason for the child’s removal, such as a substance abuse

assessment or a drug treatment program. Father’s failure to complete these necessary

services could have led the trial court to infer that father did not have the ability to motivate

himself to seek out available resources now or in the future. See id. The trial court was

entitled to find that this evidence weighed in favor of the best interest finding.

Plans for the child and stability of the home or placement

We will consider the sixth and seventh factors together. The sixth factor examines

the plans for the child by those individuals or the agency seeking custody. The seventh

factor is the stability of the home or proposed placement. Stability and permanence are

paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 120 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). The factfinder may compare the parent’s and the

Department’s plans for the child and determine whether the plans and expectations of

each party are realistic or weak and ill-defined. Id. at 119-20.

13 There is nothing in the record to indicate that father had a plan in place to care for

A.B. Father did not even ask the court to place A.B. with him because he is “not ready

for that at the moment” and still needs time to complete his services. In contrast, the

Department’s plan for A.B. is to place A.B with her brothers who were the subject of a

prior termination of parental rights case. Her current placement would continue until the

home study on the maternal uncle in Houston is completed. In the event that the

placement with the uncle was not approved, the Department would pursue an adoptive

placement for A.B. and her brothers so that all three children could live together. This

evidence supports the trial court finding that termination was in the best interest of the

child.

Acts and omissions of the parent

The eighth factor is the parent’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one. The evidence established that father

engaged in conduct which endangered A.B.’s physical and emotional well-being. Father’s

history of substance abuse, his continued methamphetamine use, his lack of interest in

visiting with A.B., his failure to pay his court-ordered child and medical support, and his

inability to maintain stable housing or employment is evidence indicating that the existing

parent-child relationship is not a proper one. In considering this evidence, the trial court

could have found that the existing parent-child relationship is not a proper one.

We conclude that the evidence is both legally and factually sufficient to establish

a firm conviction in the mind of the trial court that termination of father’s parental rights is

in the best interest of A.B. Issue two is overruled.

14 Conclusion

The judgment of the trial court terminating father’s parental rights is affirmed.

Judy C. Parker Justice