in the Interest of R.H. and R.C., Children ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00273-CV
___________________________
IN THE INTEREST OF R.H. AND R.C., CHILDREN
On Appeal from the 325th District Court
Tarrant County, Texas
Trial Court No. 325-604900-16
Before Gabriel, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant R.D. appeals the termination of his parental rights to R.H. (Ryan),
and Appellant W.C. appeals the termination of his parental rights to R.C. (Roman).1
In two points, W.C. contends that the trial court erred by denying his motion to
extend the dismissal deadline found in Texas Family Code Section 263.401(a) and that
the evidence is factually insufficient to support the trial court’s finding that
termination was in Roman’s best interest. See Tex. Fam. Code Ann. § 263.401(a).
R.D.’s appointed appellate counsel has filed a brief under Anders v. California, 386 U.S.
738, 744–45 (1967), asserting that R.D.’s appeal is frivolous. Because we overrule
W.C.’s two points and because, after carefully reviewing the record, we agree with
R.D.’s counsel that R.D.’s appeal is frivolous, we affirm the trial court’s termination
order.
I. BACKGROUND
Ryan and Roman are half-brothers—they share a mother, L.H. (Mother).2
Following his June 2018 birth, Roman’s meconium tested positive for
We use aliases to refer to the children associated with this appeal and initials to
1
refer to the appellants. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
The trial court terminated Mother’s parental rights to Ryan and Roman after
2
she signed a voluntary relinquishment of those rights. Mother does not appeal.
2
methamphetamine.3 The Department of Family and Protective Services (the
Department) stepped in, and after some initial difficulty locating Mother and Roman,
the Department tracked them to a motel in Fort Worth, where they were residing with
W.C. and Ryan. The Department removed Ryan and Roman on July 9, 2018, and
filed suit to terminate the parental rights of Mother and R.D. to Ryan and Mother and
W.C. to Roman.
Following removal, Meagan McDonald, a caseworker for Child Protective
Services, established a service plan for W.C. W.C. was required to engage in random
drug testing, drug treatment, and individual counseling. In addition, he was ordered
to complete a psychosocial assessment and to refrain from criminal activity.
McDonald testified that she met with W.C. on several occasions to discuss his
progress in completing the service plan. She testified that she met W.C. on
August 22, 2018, and he admitted to using methamphetamine seven days prior. That
concerned McDonald because of the short timeline to achieve family reunification
and because it demonstrated that W.C. was not getting his life in order. McDonald
met with W.C. again on October 24, 2018, and he told her that he had not made any
progress in completing the service plan. That same day, McDonald asked W.C. to
take a drug test, and she informed him that his refusal to do so would be considered
as a presumptively positive test. Despite that warning, W.C. failed to take the drug
Ryan was born in July 2016.
3
Ryan’s meconium also tested positive for
methamphetamine at his birth.
3
test.4 At the termination hearing, McDonald testified that W.C. did not complete a
drug assessment, did not start individual counseling, did not complete a psychosocial
assessment, and did not successfully complete any items on the service plan.
The Department also presented evidence of W.C.’s lengthy criminal history—
criminal history occurring both before and after Roman’s removal. Prior to Roman’s
removal, W.C. had been convicted of the following felonies: (1) first-degree felony
possession with intent to deliver a controlled substance, namely cocaine, for an
offense committed on October 5, 1996; (2) first-degree felony delivery of a controlled
substance, namely cocaine, for an offense committed on October 5, 1996; (3) second-
degree felony burglary of a habitation for an offense committed on December 21,
2005; and (4) state jail felony possession of a controlled substance of less than one
gram, namely methamphetamine, for an offense committed on October 20, 2015.
The evidence also showed that W.C. committed and was convicted of the following
felonies after Roman’s removal: (1) second-degree felony burglary of a building for an
offense committed on September 11, 2018; (2) a second count of second-degree
felony burglary of a building for an offense also committed on September 11, 2018;
(3) second-degree felony theft for an offense committed on November 29, 2018; and
4
W.C. testified that he attempted to take the drug test McDonald requested on
October 24, 2018, but the drug-testing facility was closed when he arrived, despite his
arrival at the requested time. W.C. testified that this occurred on other occasions as
well—he would allegedly arrive at the drug-testing facility at the requested time, but
the drug-testing facility would be closed.
4
(4) second-degree felony theft for an offense committed on December 3, 2018. W.C.
pleaded guilty to the felonies committed after Roman’s removal, and on April 16,
2019, the trial court sentenced him to three years’ confinement, with the sentences to
run concurrently.5
The Department also put on evidence of domestic violence between W.C. and
Mother. McDonald testified that at an initial court hearing in the case, she noticed
that Mother had a black eye and bruising on her neck. Mother told McDonald that
those injuries were caused by W.C. McDonald testified that she did not have any
evidence that W.C. had physically abused Ryan or Roman but that domestic violence
between W.C. and Mother placed them in danger.
On the morning of the termination hearing, W.C. filed a motion to extend the
dismissal deadline. The trial court denied W.C.’s motion. The trial court later signed
an order of termination, terminating Mother and R.D.’s parental rights to Ryan,
terminating Mother and W.C.’s parental rights to Roman, and appointing the
Department as Ryan and Roman’s permanent managing conservator.
II. W.C.’S APPEAL OF THE DENIAL OF HIS MOTION TO EXTEND
THE DISMISSAL DEADLINE
In his first point, W.C. appeals the trial court’s denial of his motion to extend
the dismissal deadline found in Texas Family Code Section 263.401(a). See Tex. Fam.
Code Ann. § 263.401(a).
5
W.C. was incarcerated at the time of the termination hearing.
5
We review a trial court’s decision to grant or deny an extension of the dismissal
deadline under the abuse of discretion standard. In re D.W., 249 S.W.3d 625, 647
(Tex. App.—Fort Worth 2008, pet. denied). Pursuant to Section 263.401(a), a
termination suit filed by the Department is automatically dismissed on the first
Monday after the first anniversary of the date a trial court renders a temporary order
appointing the Department as temporary managing conservator if the trial court has
neither commenced the trial on the merits nor granted an extension. Tex. Fam. Code
Ann. § 263.401(a). The trial court may grant an extension of up to 180 days if it finds
that “extraordinary circumstances necessitate the child remaining in the temporary
managing conservatorship of the [D]epartment and that continuing the appointment
of the [D]epartment as temporary managing conservator is in the best interest of the
child.” Id. § 263.401(b). 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. Id.
Here, on the morning of the termination hearing, W.C. filed a motion to extend
the dismissal deadline. The written motion contained no argument, let alone
evidence, that extraordinary circumstances necessitated an extension of the dismissal
deadline. Rather, W.C.’s motion simply stated:
The circumstances of the case and the needs of the children are such
that it would not be in the best interest of the Children to dismiss the
suit on that date or to render final orders. An extension of the dismissal
date of not longer than 180 days is in the best interest of the Children.
6
Just as the termination hearing began, W.C.’s counsel brought the motion to the trial
court’s attention, and the trial court took up the motion for consideration. Again,
W.C. did not offer any evidence of extraordinary circumstances to justify an extension
of the dismissal deadline; rather, W.C.’s counsel simply made the following argument:
Your Honor, my client is [W.C.]. He is -- he is currently in the Texas
Department of Criminal Justice prison in Abilene, I believe. [W.C.]
expects to get out of prison in early September, and he -- he has
convinced me that he has changed his life, and he would like to tell you
about it.6
The trial court denied W.C.’s motion.
Based on this record, it was entirely within the trial court’s discretion to
determine that W.C. failed to present any evidence of extraordinary circumstances
that would necessitate an extension of the dismissal deadline. See D.W., 249 S.W.3d at
648 (holding that because mother presented no evidence when she presented her
motion to extend the dismissal deadline, the trial court did not abuse its discretion by
denying her motion); In re A.S.J., No. 04-06-00051-CV, 2006 WL 1896335, at *2 (Tex.
App.—San Antonio July 12, 2006, no pet.) (mem. op.) (holding trial court did not
abuse its discretion by denying parents’ motion to extend the dismissal deadline where
parents “failed to provide any evidence of an extraordinary circumstance that would
6
W.C. was not deprived of the opportunity to tell the trial court about how he
claimed he had changed his life. He was present and testified at the final termination
hearing.
7
warrant an extension of time”). Thus, we hold that the trial court did not abuse its
discretion by denying W.C.’s motion to extend the dismissal deadline.7
We overrule W.C.’s first point.
III. W.C.’S APPEAL OF THE TRIAL COURT’S BEST-INTEREST
FINDING
In his second point, W.C. argues the evidence was factually insufficient to
support the trial court’s finding that the termination of his parental rights was in
Roman’s best interest.
A. STANDARD OF REVIEW
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the trial court’s best-interest finding.
In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to
the finding and do not supplant it with our own. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). We review the whole record to decide whether a fact-finder could
reasonably form a firm conviction or belief that the termination of W.C. and Roman’s
parent-child relationship would be in Roman’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If a fact-finder reasonably
7
We note that the prayer of the motion to extend the dismissal deadline
contained a one-sentence request that the trial court set a new trial date. To the
extent that such sentence constitutes a motion for continuance, the trial court was
within its discretion to deny the motion because it was not supported by an affidavit.
See Tex. R. Civ. P. 251 (requiring a motion for continuance to be supported by
affidavit).
8
could form such a firm conviction or belief, then the evidence is factually sufficient.
C.H., 89 S.W.3d at 18–19.
B. APPLICABLE LAW
Although we generally presume 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), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence probative of a child’s best
interest may be the same evidence that is probative of a conduct ground. In re E.C.R.,
402 S.W.3d 239, 249 (Tex. 2013); C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann.
§ 161.001(b)(1). We also consider the evidence in light of nonexclusive factors that
the trier of fact may apply in determining the child’s best interest:
(A) the child’s desires;
(B) the child’s emotional and physical needs, now and in the future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the
child’s best interest;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the parent’s acts or omissions indicating that the existing parent-
child relationship is not a proper one; and
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(I) any excuse for the parent’s acts or omissions.
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” (footnote omitted)); In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012).
These factors are not exhaustive, and some listed factors may not apply to some cases.
C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient to support a finding that termination is in the child’s best interest. Id. On
the other hand, the presence of scant evidence relevant to each factor will not support
such a finding. Id.
C. BEST-INTEREST ANALYSIS
With regard to Roman’s desires, the record reflects that Roman was one year
old at the time of the termination hearing and did not testify. “When children are too
young to express their desires, the factfinder may consider whether the children have
bonded with the foster family, are well-cared for by them, and have spent minimal
time with the parent.” In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). The record reflects that Roman and Ryan are with the same
foster family and that both are doing “extremely well.” The foster family desires to
adopt Roman and Ryan should they become eligible for adoption. The record also
reflects that Roman was removed from W.C. when Roman was three weeks old. Due
to his incarceration, W.C. was unable to visit Roman in the six to seven months prior
10
to the termination hearing. During that six-to-seven-month period, W.C. sent no
cards or messages to McDonald to forward to Roman. The trial court was entitled to
find that this factor weighed in favor of terminating W.C.’s parental rights to Roman.
With regard to Roman’s emotional and physical needs now and in the future,
the record reflects that his basic needs, including food, clothing, shelter, medical care,
and supervision, were being met with his foster family and that Roman was thriving.
Roman had low muscle tone and was in need of, and while with his foster family had
been receiving, Early Childhood Intervention services to assist in his physical
development. As a result, Roman was making progress in meeting his physical
milestones. The record reflects that W.C. was incarcerated at the time of the
termination hearing, had not had any contact with Roman in the six to seven months
prior to the termination hearing, and had not been meeting Roman’s emotional and
physical needs. The trial court was entitled to find that this factor weighed in favor of
terminating W.C.’s parental rights to Roman.
With regard to the emotional and physical danger to Roman now and in the
future, the record reflects that W.C. has a history of methamphetamine use, including
use after Roman’s removal. Michael Jauss, a special investigator for the Department,
testified that children are endangered when their parents use methamphetamine while
the children are in their possession. The record also reflects that W.C. caused Mother
to sustain a black eye and bruising to her neck. McDonald testified that domestic
violence between W.C. and Mother placed Roman in danger. The record also reflects
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that W.C. has an extensive criminal history—both prior to and after Roman’s
removal. McDonald testified that W.C.’s criminal activities placed Roman in danger.
McDonald also testified that W.C. knew that Mother was using methamphetamine but
allowed Roman to remain with Mother prior to removal. McDonald testified that
allowing a child to remain with another person who is actively using
methamphetamine presents a danger to the child. The trial court was entitled to find
that this factor weighed in favor of terminating W.C.’s parental rights to Roman.
With regard to the parental abilities of W.C., the record reflects that W.C. had
not parented Roman except for the first three weeks of his life. The record further
reflects that W.C. continued to use methamphetamine and to engage in criminal
activities following Roman’s removal despite knowing that he needed to abstain from
illegal drugs and from criminal activity in order for Roman to be placed with him.
W.C.’s criminal activity continued two months after his son was removed by the
Department. W.C. was indicted for two burglary-of-a-building cases, both of which
were alleged to have occurred on September 11, 2018. He was also indicted for two
felony theft cases—one alleged to have occurred on November 29, 2018, and the
other on December 3, 2018. At trial, W.C. testified he committed one crime but pled
guilty to the others as part of a plea bargain deal even though he was not guilty in all
four cases. Then W.C. explained to the court that once he was transferred to his unit
at the Texas Department of Criminal Justice (TDCJ), he began attending self-
improvement classes and programs. While W.C.’s efforts are commendable, they
12
reflect only four weeks in a forty-three-year lifetime. The trial court could have
inferred from W.C.’s past history of instability, criminal conduct, and drug use that
W.C. did not have the ability to meet Roman’s physical and emotional needs in the
future. See In re J.D., 436 S.W.3d 105, 118 (Tex. App. —Houston [14th Dist.] 2014,
no pet.). The trial court is not bound to accept the truth or accuracy of a parent’s
testimony of future intentions. D.F. v. State, 525 S.W.2d 933, 939–40 (Tex. App.—
Houston [1st Dist.] 1975, writ ref’d n.r.e.). A fact-finder may measure a parent’s
future conduct by his past conduct and determine that it is in a child’s best interest to
terminate his parental rights. In re E.M., 494 S.W.3d 209, 226 (Tex. App.—Waco
2015, pet. denied). The trial court was entitled to find that this factor weighed in
favor of terminating W.C.’s parental rights to Roman.
With regard to the programs available to assist W.C. in promoting Roman’s
best interest, the record reflects that W.C. did not successfully complete any items on
his service plan. He did not complete a drug assessment, did not start individual
counseling, did not complete a psychosocial assessment, and did not refrain from
engaging in criminal activities. However, W.C. did take advantage of several offered
programs once he reached his TDCJ prison unit. W.C. estimated that in the month
since he had arrived, he had spent fifteen to sixteen hours a week on self-
improvement classes and programs, including programs to assist with his narcotics
addiction and programs to assist with his parenting skills. Despite W.C.’s attempts to
change his life and comply with his service plan in the month prior to the termination
13
hearing, the trial court was entitled to find that this factor weighed in favor of
terminating W.C.’s parental rights to Roman.
With regard to the plan for Roman by the individuals seeking custody, W.C.
estimated that he would be paroled in September—two months after the termination
hearing. He testified that he would be able to get his old job back with the cable
company and that his mother had arranged housing for him with a landlord in
exchange for W.C.’s upkeep of the house and other properties. W.C. testified that he
did not want to be with Mother but that he wished to take care of Roman and Ryan
on his own. The Department’s plan was for Roman to be adopted by the foster
family that had been caring for Roman and Ryan. The foster family indicated a desire
to adopt Roman if W.C.’s parental rights were terminated. The trial court was entitled
to find that this factor weighed in favor of terminating W.C.’s parental rights to
Roman.
With regard to the stability of the home or proposed placement, the record
reflects that W.C. had an extensive criminal history and was incarcerated at the time of
the termination hearing. Prior to W.C.’s latest incarceration, W.C. was living in a
motel with his sister, who had a history of methamphetamine use and had recently
been released from drug treatment. McDonald testified that W.C. had not shown an
ability to provide a stable home for Roman. The trial court was entitled to find that
this factor weighed in favor of terminating W.C.’s parental rights to Roman.
14
D. BEST-INTEREST CONCLUSION
Viewing all the evidence with the appropriate deference to the fact-finder, we
hold that the trial court could have reasonably formed a firm conviction or belief that
termination of W.C.’s parental rights was in Roman’s best interest, and we therefore
hold that the evidence is factually sufficient to support the trial court’s best-interest
finding. See C.H., 89 S.W.3d at 28.
We overrule W.C.’s second point.
IV. R.D.’S APPEAL
R.D. appeals the trial court’s final order terminating his parental rights to Ryan.
See Tex. Fam. Code Ann. § 161.001(b). The trial court found by clear and convincing
evidence that R.D.’s conduct satisfied the termination grounds listed in Family Code
Section 161.001(b)(1)(D), (E), (N), (O), and (Q) and alleged in the petition for
termination. See id. § 161.001(b)(1)(D), (E), (N), (O), (Q). The trial court further
found by clear and convincing evidence that termination of R.D.’s parental rights was
in Ryan’s best interest. See id. § 161.001(b)(2). Accordingly, the trial court ordered the
termination of R.D.’s parental rights to Ryan and named the Department as Ryan’s
permanent managing conservator.
On September 9, 2019, R.D.’s appointed appellate counsel filed a brief and
corresponding motion to withdraw, stating that she has conducted a professional
evaluation of the record and has concluded that there are no arguable grounds to be
advanced to support an appeal of the trial court’s termination order and that the
15
appeal is frivolous. Counsel’s brief presents the required professional evaluation of
the record demonstrating why there are no reversible grounds on appeal and
referencing any grounds that might arguably support the appeal. See Anders, 386 U.S.
at 744; see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003,
order) (holding Anders procedures apply in parental-termination cases), disp. on merits,
No. 2-01-349-CV, 2003 WL 2006583, at *2 (Tex. App.—Fort Worth May 1, 2003, no
pet.) (mem. op.). Further, counsel informed R.D. of his right to request the record
and to file a pro se response. See Kelly v. State, 436 S.W.3d 313, 318–20 (Tex. Crim.
App. 2014). In addition, this court informed R.D. of these rights and gave him the
opportunity to notify this court of his intent to respond. R.D. has not filed a
response. The Department has notified this court that it agrees with R.D.’s counsel
that there are no grounds assailing the trial court’s termination order.
In reviewing a brief that asserts an appeal is frivolous and that fulfills the
requirements of Anders, this court is obligated to undertake an independent
examination of the record to determine if any arguable grounds for appeal exist. See
In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied) (citing
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)). Having carefully
reviewed the record and the Anders briefs, we conclude there are no arguable grounds
for reversal; thus, we agree with counsel that R.D.’s appeal is without merit. See In re
D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). We affirm the trial
court’s termination order. See Tex. R. App. P. 43.2(a).
16
We deny counsel’s motion to withdraw in light of the supreme court’s decision
in In re P.M. because counsel has not shown “good cause” other than her
determination that an appeal would be frivolous. See 520 S.W.3d 24, 27 (Tex. 2016)
(“[A]n Anders motion to withdraw brought in the court of appeals, in the absence of
additional grounds for withdrawal, may be premature.”); In re A.M., 495 S.W.3d 573,
582–83 & n.2 (Tex. App.—Houston [1st Dist.] 2016, pets. denied) (noting that since
P.M. was handed down, “most courts of appeals affirming parental termination orders
after receiving Anders briefs have denied the attorney’s motion to withdraw”). The
supreme court has held that in cases such as this, “appointed counsel’s obligations [in
the supreme court] can be satisfied by filing a petition for review that satisfies the
standards for an Anders brief.” P.M., 520 S.W.3d at 27–28.
V. CONCLUSION
Having overruled W.C.’s two points and having agreed with R.D.’s counsel that
R.D.’s appeal is frivolous, we affirm the trial court’s termination order.
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: December 12, 2019
17