in the Interest of B.C., a Child

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00078-CV

IN THE INTEREST OF B.C., A CHILD

On Appeal from the 320th District Court Potter County, Texas Trial Court No. 81,655-D, Honorable Don R. Emerson, Presiding

August 1, 2013

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

Appellant, J.G., appeals the trial court’s termination of his parental rights to his

child, B.C.1 Through three issues, J.G. argues the trial court abused its discretion in

denying his motion for continuance and asserts the evidence was insufficient to support

the court’s finding under Family Code section 161.001(1)(N) or its finding that

termination of his parental rights was in B.C.’s best interests. We will affirm.

1 The trial court also terminated the parental rights of B.C.’s mother, based on her voluntary relinquishment, filed with the court on December 17, 2012. She is not a party to this appeal. Background

B.C. was born December 31, 2011. That day, the Department received a report

concerning the ability of B.C.’s mother to care for him. On January 4, 2012, B.C. was

removed from his mother’s care. B.C. was never in the care of his father, J.G.2

In December 2012, the trial court held a final hearing concerning termination of

J.G.’s parental rights to B.C. J.G. did not appear but his counsel made an oral motion

for continuance that the court denied. At the end of the trial, J.G.’s rights were

terminated and the trial court signed the order on January 18, 2013. On February 5,

J.G. filed a motion for new trial, in which counsel asserted J.G. had not received notice

of the December final hearing as he had moved from the address where counsel sent

the notice. J.G. appeared at the hearing on the motion for new trial. The court granted

the new trial and set a new final hearing date of February 21. J.G. was not present at

the February 21 final hearing.

Counsel again made an oral motion for continuance. She noted there were still

four months left before the case would be dismissed and she could “possibly get [J.G. to

court] at some point.” The court denied the motion for continuance and, without

objection, took judicial notice of “all testimony at the prior trial.” No new evidence was

taken and the court terminated J.G.’s parental rights to B.C. The court found grounds

under Family Code § 161.001(1)(N) and (0) applicable to J.G. and found termination

was in B.C.’s best interests. See Tex. Fam. Code Ann. § 161.001(1)(N), (0), (2) (West

2012). J.G. now appeals.

2 A paternity test confirmed J.G. is the father of B.C. The results of the paternity test were filed with the trial court in September 2012.

2 Analysis

J.G.’s Motion for Continuance

In his first issue, J.G. asserts the trial court abused its discretion in denying his

counsel’s oral motion for continuance.

As noted, J.G. did not appear personally for the final hearing, although he had

appeared a week earlier for the new trial hearing. His counsel appeared on his behalf.

In support of her oral motion for continuance, counsel reported J.G. had difficulty

attending hearings because he was “out in the country” and unable to “get a ride.”

Counsel was unable to tell the court when her client would be able to appear. The trial

court found J.G.’s actions indicated a lack of interest in the proceedings concerning B.C.

The trial court did not abuse its discretion in refusing to grant the continuance.

J.G. did not file a written motion for continuance supported by affidavit as required by

Rule 251. Tex. R. Civ. P. 251; Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)

(noting presumption court does not abuse discretion by denying motion not supported

by affidavit). Additionally, the mere absence of a party does not entitle him to a

continuance; the party must show a reasonable excuse for his absence. Ngo v. Ngo,

133 S.W.3d 688, 693 (Tex.App.—Corpus Christi 2003, no pet.); Vickery v. Vickery, No.

01-94-01004-CV, 1997 Tex.App. LEXIS 6275 (Tex.App.—Houston [1st Dist.] Dec. 4,

1997, pet. denied) (mem. op.). The trial court acted within its discretion to find counsel’s

report of J.G.’s reason for his absence did not reflect a reasonable excuse, particularly

since J.G. was present the week prior. We resolve J.G.’s first issue against him.

3 Sufficiency of Evidence to Support Termination of Parental Rights

In J.G.’s second and third issues, he contends the evidence was insufficient to

support the trial court’s order terminating his parental rights to B.C.

Standard of Review

In a case to terminate parental rights brought by the Department under Family

Code § 161.001, 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. Tex. Fam. Code Ann.

§ 161.001 (West 2012); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). "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."

Tex. Fam. Code Ann. § 101.007 (West 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex.

2002); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (holding that, because

termination of parental rights is complete, final, irrevocable and divests for all time the

natural right of a parent, the evidence in support of termination must be clear and

convincing before a court may involuntarily terminate a parent's rights) (citing Santosky

v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92, 71 L. Ed. 2d 599 (1982)).

In conducting a legal sufficiency review in a parental rights termination case

under § 161.001, we view all the evidence in the light most favorable to the finding to

determine whether the fact finder could reasonably have formed a firm belief or

conviction about the truth of the matter on which the Department bore the burden of

proof. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.F.C., 96

4 S.W.3d at 266. We "must consider all of the evidence, not just that which favors the

verdict." In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266. We "must

assume that the fact finder resolved disputed facts in favor of its finding if a reasonable

fact finder could do so," and we "should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible." In re J.P.B., 180

S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266.

"[T]ermination findings must be upheld against a factual sufficiency challenge if

the evidence is such that a reasonable jury could form a firm belief or conviction that

grounds exist for termination under Texas Family Code sections 161.001 and

161.206(a)." In re C.H., 89 S.W.3d at 18-19. To reverse a case on insufficiency

grounds, "the reviewing court must detail the evidence relevant to the issue of parental

termination and clearly state why the evidence is insufficient to support a termination

finding by clear and convincing evidence." Id. at 19. The Supreme Court has

emphasized that, in applying the "clear and convincing" evidence standard, the

appellate courts "must maintain the respective constitutional roles of juries and

appellate courts." Id. at 26. In that regard, “[a]n appellate court's review must not be so

rigorous that the only fact findings that could withstand review are those established

beyond a reasonable doubt. . . . While parental rights are of constitutional magnitude,

they are not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional and

physical interests of the child not be sacrificed merely to preserve that right.” Id.

The Department must establish both elements—that the parent committed one of

the acts or omissions enumerated in § 161.001(1) and that termination is in the best

5 interest of the child. See Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d at 23.

Termination may not be based solely on the best interest of the child as determined by

the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

However, "[o]nly one predicate finding under section 161.001(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 355, 362 (Tex. 2003). Thus, if multiple predicate

grounds are found by the trial court, we will affirm on any one ground because only one

is necessary for termination of parental rights. In re D.S., 333 S.W.3d 379, 388

(Tex.App.—Amarillo 2011, no pet.); In re S.N., 272 S.W.3d 45, 49 (Tex.App.—Waco

2008, no pet.).

Grounds

Section 161.001(1)(N) of the Family Code provides that the court may order

termination of the parent-child relationship if the court finds by clear and convincing

evidence that the parent has constructively abandoned the child who has been in the

permanent or temporary managing conservatorship of the Department or an authorized

agency for not less than six months, and: “(i) the department or authorized agency has

made reasonable efforts to return the child to the parent; (ii) the parent has not regularly

visited or maintained significant contact with the child; and (iii) the parent has

demonstrated an inability to provide the child with a safe environment.” Tex. Fam. Code

Ann. § 161.001(1)(N).

"Reasonable efforts" to reunite parent and child can be satisfied through the

preparation and administration of service plans. In re D.S.A., 113 S.W.3d 567, 570-72

6 (Tex.App.—Amarillo 2003, no pet.); In re K.M.B., 91 S.W.3d 18, 25 (Tex.App.—Fort

Worth 2002, no pet.). In D.S.A., within several days of the father's release from prison, a

case worker spoke with him about a plan of service and visitation and twice arranged

meetings with him that he failed to attend. In re D.S.A., 113 S.W.3d at 570. He failed to

attend any of the appointments and classes arranged for him in the service plan and did

not exercise any visitation rights. Id. at 570-71. We held the Department’s activities

were sufficient to meet the requirement of reasonable efforts to return the child. Id. at

572. Similarly, in K.M.B., the Department demonstrated that it had prepared several

service plans designed to facilitate returning the child to the parent, but that the parent

never completed any of them. These were held reasonable efforts by the Department.

In re K.M.B., 91 S.W.3d at 25.

A factfinder may consider several factors in finding evidence demonstrated a

parent’s inability to provide the child with a safe environment, including the parent’s

participation or lack thereof in services, lack of steady housing and employment, and

missed opportunities for counseling and a psychological evaluation. M.C. v. Tex. Dep’t

of Family and Protective Servs., 300 S.W.3d 305, 310 (Tex.App.—El Paso 2009, no

pet.); In re J.J.O., 131 S.W.3d 618, 630 (Tex.App.—Fort Worth 2004, no pet.).

Here, a caseworker testified she explained to J.G. the terms of his service plan.3

She met with J.G. five times over the course of the case. She testified she believed that

while he was a “little lower functioning,” he understood the terms of his service plan.

However, he never completed any of the services set forth in the plan, visited B.C. only

three times during the course of the case and stopped visiting B.C. a year prior to the

3 The caseworker noted two plans were given to J.G. but the plans were identical.

7 trial, failed to provide stable housing as he was in and out of prison and moved several

times, failed to maintain stable employment and failed to keep in regular contact with

the Department. The record also indicates J.G. has a history of drug abuse and

frequently resides with his mother who also has a history of drug abuse and a significant

history with the Department.

Viewing all the evidence in the light most favorable to the termination judgment

and disregarding all contrary evidence that a reasonable factfinder could disregard, we

find the evidence supports the trial court’s termination of J.G.’s parental rights to B.C.

pursuant to section 161.001(1)(N) of the Family Code. We also find the evidence

supports the trial court’s order when the evidence is viewed in a neutral light and

considering all contravening evidence.4 We resolve J.G.’s second issue against him.

Best Interests

There is a strong presumption that the best interest of the child will be served by

preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)

(per curiam). Prompt and permanent placement of the child in a safe environment is

also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a)

(West 2008). Among others, the following factors should be considered in evaluating

the parent's willingness and ability to provide the child with a safe environment: the

child's age and physical and mental vulnerabilities; the frequency and nature of out-of-

home placements; the willingness and ability of the child's family to seek out, accept,

4 Because only one predicate ground is necessary for termination of parental rights, we do not address the sufficiency of the evidence relating to Family Code section 161.001(1)(0). In re D.S., 333 S.W.3d at 388.

8 and complete counseling services and to cooperate with and facilitate an appropriate

agency's close supervision; and whether an adequate social support system consisting

of an extended family and friends is available to the child. Tex. Fam. Code Ann. §

263.307(b); In re R.R., 209 S.W.3d at 116.

The Texas Supreme Court has set out additional factors that courts may consider

when determining the best interest of the child, including: (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

individual seeking custody; (5) the programs available to assist the individual to promote

the best interest of the child; (6) the plans for the child by the individual 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 a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This is not an exhaustive list, and a court

need not have evidence on every element listed in order to make a valid finding as to

the child's best interest, especially when there is undisputed evidence that the parental

relationship endangered the child. In re C.H., 89 S.W.3d at 27.

The evidence supporting the statutory grounds for termination may also be used

to support a finding that the best interest of the child warrants termination of the parent-

child relationship. Id. at 28; In re N.R.T., 338 S.W.3d 667, 677 (Tex.App.—Amarillo

2011, no pet.). Furthermore, the best interest analysis may consider circumstantial

evidence, subjective factors, and the totality of the evidence as well as the direct

evidence. In re N.R.T., 338 S.W.3d at 677.

9 The caseworker testified that, at the time of trial, B.C. was placed in a foster

home with two of his siblings. She stated B.C., who was nearly a year old, was “thriving”

in his foster home, was working on developmental issues, had been pulling up and

crawling, and was “a very happy child.” She explained that “[o]verall he is healthy” but

requires oral steroids for a medical condition.

The trial court’s best interest finding is supported by the evidence of J.G.’s: (1)

lack of bond with B.C.; (2) failure to visit the child for almost a year; (3) failure to comply

with his service plan in any way; (4) failure to maintain stable housing and employment;

(5) drug use; and (6) lack of plans for B.C. Additionally, the evidence shows that B.C. is

thriving in his foster home where all of his needs are being met and where two of his

siblings reside. His foster parents expressed a desire to adopt him in the near future.

The caseworker recommended J.G.’s parental rights to B.C. be terminated.

We find the evidence supports the trial court’s finding that termination of J.G.’s

parental rights to B.C. is in the child’s best interests, and overrule J.G.’s third issue.

Conclusion

Having overruled each of J.G.’s issues, we affirm the trial court’s order

terminating his parental rights to B.C.

James T. Campbell Justice