in the Interest of K.A.N.C. and N.A.K.C., Children ( 2014 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-14-00074-CV
    IN THE INTEREST OF K.A.N.C.
    AND N.A.K.C., CHILDREN
    On Appeal from the County Court at Law #1
    Gregg County, Texas
    Trial Court No. 2013-1530-DR
    Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Justice Carter
    MEMORANDUM OPINION
    After a bench trial, Shelia’s parental rights to two-year-old K.A.N.C. and to one-year-old
    N.A.K.C. 1 were terminated on August 5, 2014. The termination order was based, among other
    things, on Shelia’s failure “to comply with the provisions of a court order that specifically
    established the actions necessary for [Shelia] to obtain the return of the children . . . .” The order
    also indicates that, based on clear and convincing evidence, termination of the parent-child
    relationship was in the children’s best interests. We affirm the trial court’s order because (1) the
    denial of Shelia’s extension request was proper and (2) sufficient evidence established that
    termination was in the children’s best interests.
    I.        Background
    The Department of Family and Protective Services (the Department) received an initial
    intake on Shelia in July 2013 stemming from concerns regarding Shelia’s mental health and the
    concomitant risk related to her newborn child, N.A.K.C. At that time, Shelia reported feelings of
    depression and complained of chaos within her family and in her relationship with the children’s
    father.
    On her release from the hospital following N.A.K.C.’s birth, Shelia and the children lived
    with Shelia’s mother. Shelia was unemployed. In a separate investigation of Shelia’s mother,
    the Department discovered that the mother was using illegal drugs in the home while the children
    were present. Thereafter, in August 2013, the children were removed from the home, the
    1
    We refer to appellant as “Shelia” and to the children by their initials in order to protect the identities of the children.
    See TEX. R. APP. P. 9.8. The children’s father voluntarily relinquished his parental rights and is not a party to this
    appeal.
    2
    Department was named temporary managing conservator of the children, and a family service
    plan was instituted with the permanency goal of family reunification. By its terms, the plan was
    scheduled to be completed on August 11, 2014. 2
    In October 2013, eighteen-year-old Shelia underwent psychological testing by
    Dr. Winsted pursuant to a court order. Dr. Winsted’s report discloses that Shelia was physically
    abused and neglected as a child and lacked a positive role model from which she could learn the
    essential parenting skills necessary to raise two small children. Shelia evidenced “clinically
    significant symptoms of anxiety, depression, posttraumatic symptomatology, thought confusion,
    social phobia, and withdrawal.” Additionally, Shelia was suffering significant personal distress
    and manifested symptoms of “Avoidant, Borderline, Paranoid, Schizoid and Schizotypal
    Personality traits with depressive and passive aggressive features.” Although Shelia expressed
    an understanding of the importance of placing her children’s needs above her own, that
    understanding was not apparent in Shelia’s treatment of the children. Shelia completed the
    eighth grade with no further education or training, had no occupational history, and was
    experiencing financial problems. As a result, “[Shelia] would likely have difficulty meeting the
    2
    The family service plan required that Sheila complete the following tasks: (1) obtaining mental-health treatment
    through Community Healthcore or a private doctor, (2) seeking and maintaining legally verifiable employment,
    (3) attending at all court hearings and meetings regarding the children, (4) obtaining a GED by participating in
    classes through the Literacy Council, (5) completing required Department paperwork, (6) participating in random
    drug screens, (7) participating in drug rehabilitation and drug counseling on failure of a drug screen,
    (8) demonstrating ability to arrange and keep appointments with providers listed on the plan, (9) maintaining a safe
    and stable home for at least six months for herself and the children, (10) participating in individual counseling with
    Stenet Frost, (11) participating in parenting classes offered at the Child Protective Services (CPS) office,
    (12) participating in a psychological evaluation with Dr. Don Winsted, and (12) participating in Dr. Winsted’s
    therapeutic parenting classes.
    3
    practical needs of her children,” and was noted by Dr. Winsted to have an inadequate support
    system. 3
    Although the family service plan was implemented on August 16, 2013, Shelia had only
    completed the required psychological evaluation and begun counseling sessions by December
    2013. 4 She failed to participate in Winsted’s parenting group and did not complete her GED.
    Shelia was able to obtain employment at Walmart for a short period of time, but was unable to
    maintain that employment. Shelia was, however, able to secure her own residence, although it
    was sparsely furnished, with no stove or refrigerator.               A potentially dangerous gas spigot
    protruded from the residence’s floor, and there were cables on the floor which were also
    potentially dangerous to the children. Shelia was eventually able to place a refrigerator in the
    residence, although the refrigerator was infested with roaches and the water supply had been
    turned off. Jennifer Sipes, Shelia’s conservatorship worker, opined that, as of July 10, 2014,
    Shelia’s home was not a safe and stable environment for the children.
    By the time of trial on August 4, 2014, Shelia had made additional progress toward
    completing the goals set out in her family service plan.                She had completed the required
    parenting classes at the CPS office and had participated in approximately eight counseling
    sessions. Shelia was re-employed at Walmart and had rented a new apartment with a scheduled
    move-in date of August 8, 2014. Shelia visited her children regularly.
    3
    Shelia and the children were initially living with Shelia’s mother. In its most recent investigation of Shelia’s
    mother, the Department concluded that the mother tested positive for cocaine and that she admitted to using
    marihuana in the home she shared with Shelia and her grandchildren.
    4
    Shelia also saw a physician regarding medication for her mental health issues. However, because Shelia was
    pregnant at the time of this appointment, she was prescribed no medication.
    4
    Although drugs were never an issue for Shelia, she was aware that both her mother and
    her grandmother used marihuana, and she left the children with her mother in spite of this
    knowledge. After the birth of N.A.K.C., Shelia also began a relationship with a new partner who
    was arrested in April 2014 for a parole violation.
    II.    Standard of Review
    The burden of proof in parental-rights termination proceedings is clear and convincing
    evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re J.F.C., 
    96 S.W.3d 256
    , 264 (Tex.
    2003). The evidence is clear and convincing when the proof is such that it produces in the mind
    of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
    established by the State. In re J.O.A., 
    283 S.W.3d 336
    , 344 (Tex. 2009).
    In a legal sufficiency review, we consider all the evidence in the light most favorable to
    the findings to determine whether the fact-finder could reasonably have formed a firm belief or
    conviction that the grounds for termination were proven. In re J.P.B., 
    180 S.W.3d 570
    , 573
    (Tex. 2005) (per curiam); In re J.L.B., 
    349 S.W.3d 836
    , 846 (Tex. App.—Texarkana 2011, no
    pet.). We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the
    finding, if a reasonable fact-finder could do so, that it disregarded evidence that a reasonable
    fact-finder could have reasonably disregarded, and that it disbelieved the testimony of any
    witness whose credibility could reasonably be doubted. 
    J.P.B., 180 S.W.3d at 573
    .
    In our review of factual sufficiency, we give due consideration to evidence the trial court
    could have reasonably found to be clear and convincing. In re C.H., 
    89 S.W.3d 17
    , 27 (Tex.
    2002). If, in weighing the disputed evidence, the fact-finder could have reasonably resolved the
    5
    conflicts to form a firm conviction that allegations concerning the grounds for termination were
    true, then the evidence is factually sufficient, and the termination findings must be upheld. 
    Id. at 18–19.
    In applying this standard in light of the “clear and convincing” language required by
    Section 161.001 of the Texas Family Code, we must be careful not to “‘be so rigorous that the
    only factfindings that could withstand review are those established beyond a reasonable doubt.’”
    In re R.A.L., 
    291 S.W.3d 438
    , 443 (Tex. App.—Texarkana 2009, no pet.) (quoting In re H.R.M.,
    
    209 S.W.3d 105
    , 108 (Tex. 2006) (per curiam)).
    III.   Denial of Extension Request Was Proper
    The Texas Family Code sets forth strict guidelines governing the Department’s
    prosecution of    actions to terminate parental rights or to have the Department designated
    conservator. See TEX. FAM. CODE ANN. § 263.401 (West 2014). Termination suits must be
    dismissed on the first Monday after the first anniversary of the date the Department was
    appointed temporary managing conservator. 
    Id. Although the
    trial court has the discretion to
    grant a one-time 180-day-extension of this statutory deadline, such extension may only be
    granted based on proof of extraordinary circumstances:
    Unless the court has commenced the trial on the merits, the court may not retain
    the suit on the court’s docket after the time described by Subsection (a) unless the
    court finds that 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. If the court makes those findings, the court may retain the
    suit on the court’s docket for a period not to exceed 180 days after the time
    described by Subsection (a).
    TEX. FAM. CODE ANN. § 263.401(b).            If the court does not make specific findings of
    extraordinary circumstances, the court is not permitted to retain the suit on its docket past the
    6
    one-year time frame. In re Dep’t of Family & Protective Serv., 
    273 S.W.3d 637
    , 643 (Tex.
    2009). The trial court’s ruling on an extension request under Section 263.401(b) is reviewed
    under an abuse of discretion standard. In re A.J.M., 
    375 S.W.3d 599
    , 604 (Tex. App.—Fort
    Worth 2012, pet. denied); 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). A trial court abuses its discretion when it acts
    without reference to any guiding rules or principles. Low v. Henry, 
    221 S.W.3d 609
    , 620 (Tex.
    2007).
    On July 10, 2014, the trial court conducted a hearing on Shelia’s motion for an extension
    of the one-year dismissal date of August 11, 2014. The request was based on Shelia’s need to
    complete the family service plan and to improve the living conditions of her home for the
    children. Shelia indicated that she could meet the Department’s expectations if given additional
    time. 5
    Shelia acknowledges that, typically, a parent’s tardy compliance with a family service
    plan does not constitute extraordinary circumstances. See In re O.R.F., 
    417 S.W.3d 24
    , 42 (Tex.
    App.—Texarkana 2013, pet. denied) (failure to begin complying with family service plan until
    several weeks before trial does not constitute extraordinary circumstance when requirements
    necessary to obtain child’s return were known well in advance); Shaw v. Tex. Dep’t of Family &
    Protective Servs., No. 03-05-00682-CV, 
    2006 WL 2504460
    , at *8 (Tex. App.—Austin Aug. 31,
    5
    Since the time of the previous hearing in May 2014, Shelia had switched jobs from Walmart on Estes Parkway to
    Walmart on Fourth Street. Shelia had also obtained various additional items for her home, as requested by the
    Department.
    7
    2006, pet. denied) (mem. op.) (failing to make progress on service plan for eight months did not
    amount to “extraordinary circumstances” that authorized continuance).
    Here, however, Shelia maintains that her initial starting point for implementation of the
    service plan constitutes extraordinary circumstances. She cites to the fact that she was only
    eighteen years old when the plan was thrust upon her and that she had never before been required
    to provide a home and support to any children (on her own) prior to this case. Shelia also cites to
    her limited education and argues that to expect her to obtain employment with appropriate
    income and a home for her children in less than a year was “essentially asking the impossible.”
    There is no doubt that the service plan was aggressive and presented some difficult
    hurdles for Shelia. She proved, though, that she was able to comply with its requirements when
    she chose to do so. Further, Shelia was provided with information that would have enabled her
    to receive necessary support and assistance, including food stamps, WIC, Medicaid, medical
    transportation, bus service for rural transportation, counseling, and help with budgeting. Shelia
    cites no authority to support her proposition that a parent’s age and family background constitute
    extraordinary circumstances sufficient to permit the children to remain in foster care.
    The determination of whether to grant an extension in a case such as this must be
    centered on the children’s best interests. See TEX. FAM. CODE ANN. § 263.401(b); In re A.J.M.,
    
    375 S.W.3d 599
    , 604 (Tex. App.—Fort Worth 2012, pet. denied). At the time of the hearing in
    this case, the children had been in foster care for almost an entire year. The trial court declined
    to extend that period for another six months. Shelia was made aware of the requirements
    necessary for the return of the children in August 2013, but made little progress in fulfilling
    8
    those requirements until only weeks before trial.       Under these circumstances, we cannot
    conclude that the trial court’s refusal to grant Shelia’s extension request was an abuse of
    discretion.
    IV.    Sufficient Evidence Established that Termination Was in the Children’s Best
    Interests
    To uphold the termination finding, we must also determine whether the Department
    proved, by clear and convincing evidence, that termination of Shelia’s parental rights was in the
    children’s best interests. See TEX. FAM. CODE ANN. § 161.001. There is a strong presumption
    that a child’s interest is best served by preserving conservatorship in the natural parent. In re
    R.R., 
    209 S.W.3d 112
    , 116 (Tex. 2006) (per curiam); 
    J.L.B., 349 S.W.3d at 848
    .                That
    presumption can be overcome, however, with clear and convincing evidence to the contrary.
    
    R.R., 209 S.W.3d at 116
    ; 
    J.L.B., 349 S.W.3d at 848
    .
    A number of factors may be considered in 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 individuals seeking custody, (5) the
    programs available to assist these individuals, (6) the plans for the child by these
    individuals, (7) the stability of the home, (8) the acts or omissions of the parent
    that may indicate the existing parent-child relationship is not a proper one, and
    (9) any excuse for the acts or omissions of the parent.
    In re K.S., 
    420 S.W.3d 852
    , 855 (Tex. App.—Texarkana 2014, no pet.) (citing Holley v. Adams,
    
    544 S.W.2d 367
    , 371–72 (Tex. 1976)). This list is not exclusive, and there is no requirement that
    any unique set of factors be proven. 
    Id. Certainly, it
    is not necessary to prove all nine factors.
    
    C.H., 89 S.W.3d at 27
    . The analysis of undisputed evidence relating to one factor may be
    9
    adequate in a particular situation to support a finding that termination is in the best interest of the
    child. In re K.W., 
    335 S.W.3d 767
    , 770 (Tex. App.—Texarkana 2011, no pet.) (quoting In re
    J.A.W., No. 06-09-00068-CV, 
    2010 WL 1236432
    , at *4 (Tex. App.—Texarkana Apr. 1, 2010,
    pet. denied) (mem. op.)). Additionally, evidence supporting the termination of parental rights is
    also probative of best interest. 
    C.H., 89 S.W.3d at 28
    .
    Due to the young ages of K.A.N.C. and N.A.K.C., their desires cannot be determined.
    The testimony indicates, however, that the children have been well cared for by the foster family
    with whom they had been living at the time of trial for almost a year. The children have bonded
    with the foster family, and the foster family has expressed an interest in adopting the children.
    From this evidence, the trial court could infer that the children would prefer to remain in this
    stable, loving environment. See In re U.P., 
    105 S.W.3d 222
    , 230 (Tex. App.—Houston [14th
    Dist.] 2003, pet. denied) (considering evidence that child was well cared for by foster family, had
    bonded with family members, and spent minimal time with parent in assessing toddler’s desires).
    Several factors weigh against Shelia’s expressed desire to maintain her parental
    relationship with the children. Foremost among these are the children’s present and future
    physical and emotional needs. The trial court found that Shelia both (1) “knowingly placed or
    knowingly allowed the children to remain in conditions or surroundings which endanger the
    physical or emotional well-being of the children” 6 and (2) “engaged in conduct or knowingly
    placed the children with persons who engaged in conduct which endangers the physical or
    6
    See TEX. FAM. CODE ANN. § 161.001(1)(D).
    10
    emotional well-being of the children.” 7 Shelia did not dispute these findings on appeal; to the
    contrary, her trial testimony establishing that she permitted the children to remain with her
    mother and grandmother, both of whom smoked marihuana in the home actually supports the
    trial court’s finding. Moreover, Shelia did not acknowledge that this was a poor decision which
    could endanger the children; instead, she testified that this was a good decision on her part,
    explaining that marihuana “didn’t have nothing on her watching them . . . .” As past is often
    prologue, the trial court could have formed a firm belief or conviction that Shelia’s past
    endangering conduct would recur if the children were returned to her. See In re J.D., 
    436 S.W.3d 105
    , 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re D.S., 
    333 S.W.3d 379
    ,
    384 (Tex. App.—Amarillo 2011, no pet.) (trier of fact may infer parent’s past endangering
    conduct may recur in future, upon child’s return to parent).
    Other evidence indicated that, in spite of documented mental health issues, Shelia failed
    to seek counseling or long-term therapy for her mental health issues. Winsted testified that this
    failure was a recipe for neglect and further opined that Shelia was at a high risk for abusing
    and/or neglecting the children. Sipes testified that Shelia “did not make significant progress on
    her family plan to alleviate the risk of abuse and neglect in her home.” The evidence showed
    that Shelia failed to comply with her court-ordered service plan relating to her mental-health
    issues as well as other requirements such as providing a safe home for the children.
    During the one-year time frame in which Shelia had the opportunity to diligently work
    her service plan for the purpose of being reunited with her children, she was, instead, occupied
    7
    See TEX. FAM. CODE ANN. § 161.001(1)(E).
    11
    with such endeavors as engaging in a physical altercation, 8 seeking out a new boyfriend who has
    since been returned to prison on a parole violation, and becoming pregnant with a third child.
    And, although Shelia made a last-minute effort to fulfill her service plan obligations, the totality
    of these decisions reflects repeated poor judgment and irresponsible choices and provides a basis
    on which the trial court could have concluded that Shelia could not adequately provide for the
    children’s physical and emotional needs, now and in the future, and that she lacked essential
    parenting skills and abilities. See In re C.A.J., 
    122 S.W.3d 888
    , 893 (Tex. App.—Fort Worth
    2003, no pet.) (lack of parenting skills, income, home and unstable lifestyle considered in
    determining parent’s ability to provide for child’s physical and emotional needs); In re J.O.A.,
    
    282 S.W.3d 336
    , 346 (Tex. 2009) (considering parent’s history of irresponsible choices in best
    interest determination).
    Shelia could not articulate any discernable plans for her children and could not provide
    them with a safe and suitable home. Instead, Shelia continued to live with her mother and failed
    to appreciate the gravity of the situation with which she was faced.
    Based on this record, under the standards as set out above, we conclude that there is both
    legally and factually sufficient evidence to allow the trial court to determine that the children’s
    best interests were served by the termination of Shelia’s parental rights. Therefore, Section
    161.001(2) of the Texas Family Code has been met. See TEX. FAM. CODE ANN. § 161.001(2).
    8
    This evidence is reflected in a Facebook post in which Shelia stated, “Jst had a fight still lookn Gud no marks r nun
    but Ido got bald stops tho lol”
    12
    V.    Conclusion
    We affirm the trial court’s judgment.
    Jack Carter
    Justice
    Date Submitted:      December 11, 2014
    Date Decided:        December 23, 2014
    13