in the Interest of G.C., M.C., G.C., and M.C., Children ( 2017 )

Opinion filed February 10, 2017
In The
Eleventh Court of Appeals
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No. 11-16-00245-CV
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IN THE INTEREST OF G.C., M.C., G.C., AND M.C., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8139-CX
MEMORANDUM OPINION
The trial court entered an order in which it terminated the parental rights of
the parents of G.C., M.C., G.C., M.C., and A.M.1 The father of four of the children
appealed. In three issues on appeal, Appellant asserts that the trial court lacked
jurisdiction, that the trial court erred when it denied Appellant’s motion for extension
and continuance, and that the evidence was insufficient to support the trial court’s
best interest finding. We affirm.
1
We note that the mother of the children and the father of A.M. did not file a notice of appeal. In
this opinion, when we refer to “the children,” we are referring to Appellant’s children: G.C., M.C., G.C.,
and M.C.
I. Jurisdiction
In his first issue, Appellant contends that the trial court lacked jurisdiction to
enter the termination order because Appellant was not served with a citation in this
case until after the adversary hearing, the first status hearing, and the initial
permanency hearing had been held. The record shows that Appellant is correct in
that he was served on January 19, 2016, which was after the August 13, 2015
adversary hearing that resulted in a temporary order and was also after the first status
hearing and the initial permanency hearing.2 However, Appellant was served long
before the final trial in this case, which was held on July 15, 2016. The record also
shows that citations were issued for Appellant at different addresses on August 5,
2015, on September 24, 2015, on October 23, 2015, and on January 11, 2016. The
first three citations were returned unserved with a deputy’s note indicating that
Appellant could not be located. After he was finally served with a citation, Appellant
filed an affidavit of indigence in this case and requested a court-appointed attorney.
He appeared in court at the permanency hearing that was held on April 29, 2016, and
he also appeared in court for the final hearing on termination.
Because Appellant had been served with a citation in this case before the trial
court conducted the final hearing on termination, the trial court had personal
jurisdiction over Appellant at the time that it held that hearing and entered the order
of termination. We overrule Appellant’s first issue.
II. Continuance
In his second issue, Appellant argues that the trial court violated Appellant’s
right to due process and abused its discretion when it denied Appellant’s motion for
extension and continuance.3 We disagree.
2
See TEX. FAM. CODE ANN. § 262.201 (West Supp. 2016).
3
We note that Appellant did not file a motion for continuance as provided for in Rule 251 of the
Texas Rules of Civil Procedure and that his request for extension stemmed from Section 263.401 of the
Family Code.
2
When this case was called for the final hearing on termination on July 15,
2016, Appellant’s counsel announced “vehemently not ready” and requested that the
trial court extend the dismissal deadline for up to 180 days. See TEX. FAM. CODE
ANN. § 263.401(b) (West Supp. 2016). Counsel explained that Appellant was not
timely served with a citation in this case, that counsel was not prepared to go to trial
because the trial court had previously indicated that this case probably would not go
to trial on that date, and that Appellant had just been released from jail and needed
a “meaningful opportunity to participate in the services.”
The one-year mandatory dismissal deadline in this case was August 8, 2016.
See id. § 263.401(a). A trial court may extend the dismissal date and retain a
termination suit on its docket for up to 180 days beyond the original dismissal date
if the trial court finds that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the Department of Family
and Protective Services and that continuing such conservatorship is in the best
interest of the child. Id. § 263.401(b). A trial court has discretion to grant such an
extension, but the language in Section 263.401 “prefers finality to suit.” In re A.J.M.,
375 S.W.3d 599, 605 (Tex. App.—Fort Worth 2012, pet. denied).
Under the circumstances present in this case, we cannot hold that the trial
court abused its discretion when it denied Appellant’s request for an extension. As
early as January 2016, the trial court had scheduled this case for a July 2016 trial
setting; therefore, Appellant had more than six months’ notice of the trial date.
Additionally, although he had not been timely served, Appellant was aware on
August 1, 2015, that his children were in the care of the Department, and he was in
telephone contact with the Department about a month later to discuss the services
and classes that he needed to complete. Appellant did not appear at the adversary
hearing even though he had been told about the hearing and when it was to be held.
Appellant acknowledged that he stopped participating in his services because he
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“didn’t want to go.” Later, in March 2016, Appellant was arrested on charges related
to family violence and to the violation of the terms and conditions of his community
supervision; he remained in jail until the day of the final hearing on termination.
During the time that he was in jail, Appellant made very little progress on his
services. The trial court neither violated Appellant’s right to due process nor abused
its discretion when it denied Appellant’s request for extension. Consequently, we
overrule Appellant’s second issue.
III. Termination: Best Interest
In his third issue, Appellant asserts that the termination of his parental rights
was not in the best interest of his children. Termination of parental rights must be
supported by clear and convincing evidence. FAM. § 161.001(b). To determine on
appeal 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
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).
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)–(T) and that termination is in the best interest of the child.
FAM. § 161.001(b). In this case, the trial court found that Appellant committed four
of the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N),
and (O). Appellant does not challenge these findings, but he does challenge the trial
court’s finding that termination is in the children’s best interest. See id.
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§ 161.001(b)(2). Accordingly, we will uphold the order of termination if the
evidence is sufficient to support the best interest finding.
Appellant asserts that the evidence presented at trial was insufficient to
support the finding that termination of his parental rights would be in the children’s
best interest. With respect to the best interest of a child, no unique set of factors
need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet.
denied). But courts may use the non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include,
but are not limited to, (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 a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
The Department originally became involved with the children in this case in
February 2015 when it received a report concerning domestic violence. Appellant
had hit the children’s mother in the face while she was holding one of the children.
At that time, there were also concerns of drug use. Three months later, the
Department received another intake that related to the medical neglect of one of the
children. Then, in June 2015, there was another intake that involved domestic
violence between the parents in the children’s presence. On July 1, the parents failed
to appear for a hearing at which they were ordered to participate in family services.
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At that time, Appellant’s children were ages seven years, four years, three years, and
one year. On July 30, 2015, the Department received yet another intake that involved
domestic violence between the parents while the children were present.
The Department’s investigator in this case could not locate the family at the
time of the July 30 intake, but the investigator did locate the mother the next day.
During the mother’s conversation with the investigator, the mother admitted that she
had used methamphetamine on July 29; she tested positive for methamphetamine on
two instant drug tests that were administered by the investigator. The children were
removed at that time because Appellant could not be located and no relative was
available for placement.
Not only did Appellant have a history of domestic violence against the
children’s mother prior to removal, he was arrested for domestic violence that
occurred after removal while this case was pending. Appellant also admitted that he
had used methamphetamine while the children were in his care. He failed to comply
with the court-ordered services, and he did not have stable housing that was suitable
for the children.
One of the children tested positive for methamphetamine. A conservatorship
caseworker testified that all four children needed therapy. She indicated that, while
this case was pending, the children had made progress in their developmental skills
and a little progress with their anger issues and that the children were doing well.
The children’s attorney and guardian ad litem indicated during her cross-
examination of a witness that none of the children—not even the eight-year-old—
were potty-trained at the time of removal. No evidence was presented regarding the
desires of the children.
The Department’s conservatorship supervisor in this case testified that
termination of the parents’ parental rights would be in the best interest of the
children. The supervisor explained that, if termination occurred, the children would
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be free for adoption and could have a real parent. She also stated that the Department
was still having difficulty stabilizing the children. She indicated that the parents’
domestic violence and the children’s exposure to methamphetamine had a
continuing, detrimental effect on the children. The supervisor testified that the
Department “[could not] really search for an adoptive home unless we have
termination.” The Department’s goal for the children was to find an adoptive home
where all four children could be placed.
Based upon the Holley factors and the evidence in the record, we cannot hold
that the trial court’s best interest finding is not supported by clear and convincing
evidence. See Holley, 544 S.W.2d at 371–72. The trial court could reasonably have
formed a firm belief or conviction that it would be in each child’s best interest for
Appellant’s parental rights to be terminated. We hold that the evidence is both
legally and factually sufficient to support the trial court’s best interest finding. We
overrule Appellant’s third issue.
IV. This Court’s Ruling
We affirm the trial court’s order of termination.
MIKE WILLSON
JUSTICE
February 10, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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