in the Interest of E.R.G. and J.R.J., Children ( 2021 )

Opinion filed May 6, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00248-CV
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IN THE INTEREST OF E.R.G. AND J.R.J., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 9720-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the unknown father(s) of E.R.G. and J.R.J. The mother filed
this appeal. On appeal, she presents four issues: one in which she challenges the
denial of her motion for continuance and three in which she challenges the
sufficiency of the evidence to support the trial court’s findings. We affirm the trial
court’s order of termination.
I. Motion for Continuance
In her first issue, Appellant asserts that the trial court abused its discretion
when it denied Appellant’s motion for continuance and proceeded to trial even
though Appellant had been found to be incompetent to stand trial in a criminal case
pending in another court. Within this issue, Appellant asserts, for the first time on
appeal, that the failure to grant a continuance violated her right to due process. To
the extent that Appellant’s issue relates to due process, we hold that it was not
preserved for review. See In re L.M.I., 119 S.W.3d 707, 708–11 (Tex. 2003); see
also TEX. R. APP. P. 33.1.
At a pretrial hearing, Appellant’s trial counsel orally requested a motion for
continuance based upon Appellant’s incompetence. Counsel informed the trial court
that Appellant refused to communicate with him and that Appellant had made threats
against CPS, the trial court, trial counsel, trial counsel’s family, and others involved
in the case. According to counsel, Appellant had been “declared incompetent in her
criminal proceeding.” The record shows that the trial court was already well aware
of Appellant’s mental health issues. The children’s attorney and guardian ad litem
did not oppose a continuance, but the intervenors did. The trial court denied
Appellant’s motion and proceeded to trial.
A trial court’s decision to grant or deny a motion for continuance is a matter
within the trial court’s sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626
(Tex. 1986). The trial court’s ruling on a motion for continuance will not be
disturbed unless the record discloses a clear abuse of discretion. Id. We note that
Appellant’s motion for continuance did not comply with the Texas Rules of Civil
Procedure. Rule 251 provides that a continuance shall not be granted “except for
sufficient cause supported by affidavit” or by consent of the parties or operation of
law. TEX. R. CIV. P. 251. Appellant orally moved for a continuance at the pretrial
hearing and did not support the motion with an affidavit. In such circumstances, we
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presume that the trial court did not abuse its discretion. Villegas, 711 S.W.2d at 626.
This presumption, however, does not equate to a foregone conclusion that the trial
court did not abuse its discretion by denying a motion for continuance when the
movant fails to comply with Rule 251. In re L.N.C., 573 S.W.3d 309, 321 (Tex.
App.—Houston [14th Dist.] 2019, pet. denied) (citing Villegas, 711 S.W.2d at 626).
On the record before us, we cannot hold that the trial court abused its
discretion when it denied Appellant’s motion for continuance. On June 1, 2020,
Appellant was declared to be incompetent to stand trial in a criminal matter.
August 31, 2020, was the original one-year deadline for commencing trial, i.e., the
automatic dismissal date, in the suit affecting the parent–child relationship that is at
issue in this appeal. See TEX. FAM. CODE ANN. § 263.401 (West Supp. 2020). The
trial court issued an order extending the dismissal date to February 2, 2021. On
October 6, 2020, the trial court conducted both a pretrial hearing and the final
hearing on termination. Nothing in the record from those hearings indicated that
Appellant was expected to become competent by the dismissal date. Nor did
anything in the record indicate that Appellant was in fact expected to regain
competency, that a continuance would be beneficial to Appellant, or that a
continuance would not be detrimental to the children. A parent’s incompetency does
not impose any requirement upon the trial court to delay parental termination
proceedings until the parent is competent. In re R.M.T., 352 S.W.3d 12, 23 (Tex.
App.—Texarkana 2011, no pet.). Here, Appellant was represented at the termination
hearing by her court-appointed attorney ad litem, and Appellant had had
opportunities to consult with that attorney prior to Appellant being declared
incompetent. At the time of the final hearing, the children had been in the care of
the Department for over a year. Under these circumstances, we hold that the trial
court did not abuse its discretion when it denied Appellant’s motion for continuance.
See id. at 23–24; see also TEX. R. CIV. P. 251. We overrule Appellant’s first issue.
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II. Sufficiency of the Evidence
In her second and third issues, Appellant asserts that the evidence is legally
and factually insufficient to support the trial court’s finding that Appellant had
engaged in conduct or knowingly placed the children with persons who had engaged
in conduct that endangered the children’s physical or emotional well-being. We
disagree.
A. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2020). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
In this case, the trial court found that Appellant had committed two of the acts
listed in Section 161.001(b)(1)—those found in subsections (E) and (O).
Specifically, the trial court found that Appellant had engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered
the children’s physical or emotional well-being and that Appellant had failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children, who had been in the managing
conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of the children’s removal from the parents for abuse or
neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of Appellant’s parental rights would be in the best interest of each child.
To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
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evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In
re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
B. Evidence Presented at Trial
The record in this case shows that, in July 2019, the Department received an
intake alleging domestic violence in the home in which Appellant, her mother, and
E.R.G. lived. The incident of domestic violence occurred between Appellant and
her mother in E.R.G.’s presence. During the altercation, Appellant had choked her
mother. Appellant was arrested for assault family violence, and her mother was
arrested based upon an outstanding warrant. Appellant was pregnant with J.R.J. at
the time, and J.R.J. was born thereafter while Appellant was incarcerated. When the
Department’s investigator attempted to speak to Appellant in jail, Appellant claimed
that she was “the La Llorona” and that “her birthday was actually the day she died.”
The Department’s investigator testified that Appellant “was not making a whole lot
of sense” during their conversation.
E.R.G. subsequently tested positive for marihuana and was removed from the
home. After E.R.G. was removed, the Department created a family service plan for
Appellant, which was later made an order of the court. Appellant initially
participated in her services, but she stopped participating well before she had
completed the required services and informed the Department that she would no
longer cooperate with the Department. Of import, Appellant completed a
psychological evaluation but refused to complete a psychiatric evaluation as
required. Based upon the psychological evaluation, which was the only service that
Appellant completed, it was determined that Appellant would need ongoing
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psychiatric care, psychotropic medication, and individual counseling to monitor her
mood behaviors and thoughts. Appellant was deemed to be unable to care for herself
without adult oversight.
During the two visits with the children that the Department’s caseworker
observed, the caseworker discerned that Appellant appeared to be mentally unstable:
she talked in an irrational manner and made outlandish statements. During the final
hearing in this cause, Appellant interrupted the proceedings and was warned that she
would be removed from the courtroom if she continued to do so. Appellant was
removed from the courtroom and the videoconference hearing after making the
following statement to the trial court:
Well, I am just going to tell you, sir, you are not -- I am going to
talk to my family and y’all are going to get all y’all’s asses up and killed
if you’re involved with having -- you better believe that. So y’all -- like
I said, that’s the truth. Y’all can still lie and y’all don’t like when I say
that truth. And y’all can’t take my kids from me like that. I swear to
God y’all are going to --
At the time of trial, Appellant was incarcerated. She had been arrested based
upon a motion to revoke her community supervision for the assault charge, and as
discussed above, she had been declared to be incompetent to stand trial in the
revocation proceeding. The children had been placed with a maternal aunt and uncle
who wished to adopt both children. The children were thriving in that placement,
with the exception of E.R.G.’s “night terrors” associated with the July 2019 incident
of domestic violence. The testimony at trial indicated that termination of the parents’
parental rights would be in the best interest of the children.
C. Analysis
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
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App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct does not need to be directed
at the child, nor does the child actually have to suffer an injury. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009).
A parent’s mental instability may contribute to a finding that the parent
engaged in a course of conduct that endangered a child’s physical or emotional well-
being. In re T.G.R.-M., 404 S.W.3d 7, 14 (Tex. App.—Houston [1st Dist.] 2013, no
pet.); Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet.
denied). A parent’s failure to appreciate the need for mental health treatment allows
a factfinder to infer that her mental health issues would likely recur and further
jeopardize a child’s well-being in the future. In re M.A.A., No. 01-20-00709-CV,
2021 WL 1134308, at *32 (Tex. App.—Houston [1st Dist.] Mar. 25, 2021, no pet. h.)
(mem. op.). Furthermore, a parent’s failure to seek treatment or properly take
medication for her mental health issues may also endanger a child’s physical or
emotional well-being. In re P.H., 544 S.W.3d 850, 858 (Tex. App.—El Paso 2017,
no pet.).
Based upon evidence of Appellant’s violent behavior toward her mother while
one child was present and while Appellant was pregnant with another child,
Appellant’s mental instability and her refusal to obtain and abide by the terms of
treatment for her mental issues, Appellant’s inability to keep from being
reincarcerated after she was placed on community supervision, and Appellant’s
violent threats toward all of those involved in the case below, the trial court could
have found by clear and convincing evidence that Appellant had engaged in a course
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of conduct that endangered her children. We hold that the evidence is legally and
factually sufficient to uphold the trial court’s finding as to Appellant under
subsection (E). Accordingly, we overrule Appellant’s second and third issues.
Because only one statutory ground is necessary to support termination and because
we have upheld the trial court’s finding as to subsection (E), we need not reach
Appellant’s fourth issue, in which she challenges the legal sufficiency of the
evidence to support the trial court’s finding under subsection (O). See FAM.
§ 161.001(b)(1); In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due
process and due course of law with respect to appellate review of grounds (D) and
(E) and holding that an appellate court must provide a detailed analysis if affirming
the termination on either of these grounds); see also TEX. R. APP. P. 47.1.
III. This Court’s Ruling
We affirm the order of the trial court.
W. BRUCE WILLIAMS
JUSTICE
May 6, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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