In the Interest of A.T., a Child v. the State of Texas ( 2023 )

Opinion filed February 23, 2023
In The
Eleventh Court of Appeals
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No. 11-22-00252-CV
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IN THE INTEREST OF A.T., A CHILD
On Appeal from the 90th District Court
Stephens County, Texas
Trial Court Cause No. CV32759
MEMORANDUM OPINION
This is an appeal from an order in which the trial court, based upon the jury’s
unanimous verdict, terminated the parental rights of A.T.’s mother and father and
appointed the Department of Family and Protective Services as the child’s
permanent managing conservator. The mother filed this appeal. On appeal, she
presents two issues in which she asserts (1) that the trial court’s jurisdiction expired
before trial commenced and (2) that the evidence is insufficient to support a finding
that termination is in the child’s best interest. We affirm the order of the trial court.
I. Trial Court’s Jurisdiction
In her first issue, Appellant asserts that the trial court lacked jurisdiction to
terminate Appellant’s parental rights because the trial court did not enter an
appropriate order extending the one-year dismissal deadline. The section of the
Family Code upon which Appellant relies provides in relevant part as follows:
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b) or (b-1), on the first Monday
after the first anniversary of the date the court rendered a temporary
order appointing the department as temporary managing conservator,
the court’s jurisdiction over the suit affecting the parent-child
relationship filed by the department . . . is terminated and the suit is
automatically dismissed without a court order. . . .
(b) 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(a), (b) (West Supp. 2022).
The facts pertinent to this issue thus relate to certain dates, including the date
upon which the trial court entered an order regarding temporary conservatorship, the
dismissal date as mandated by the Family Code, and the date that trial commenced.
The record shows that the Department of Family and Protective Services filed the
original petition in this cause on January 14, 2021, and that the trial court entered its
emergency order appointing the Department as the temporary sole managing
conservator of the child on January 25, 2021. In an order dated July 14, 2021, the
trial court correctly indicated that the dismissal date was January 31, 2022.
However, both Appellant and the Department subsequently filed motions to extend
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the dismissal date and retain the suit on the trial court’s docket. Thereafter, on
January 12, 2022, prior to the original dismissal date, the trial court determined that
extraordinary circumstances necessitated that the child remain in the temporary
managing conservatorship of the Department and that it would be in the child’s best
interest to do so. In its January 12 order, the trial court retained the case on its docket
and set a new dismissal date of July 30, 2022, which was 180 days after the original
dismissal date. Trial commenced on July 5, 2022—prior to the new July 30 dismissal
date. Therefore, because the trial court followed the mandates of Section 263.401
with respect to the timeliness of its extension order, the requirements of
Section 263.401(b), and the commencement of trial, the trial court retained
jurisdiction and its order of termination is not void. See In re G.X.H., 627 S.W.3d
288, 296–301 (Tex. 2021) (holding that the mere entry on trial court’s docket sheet
was sufficient to retain jurisdiction in a termination suit and extend the dismissal
deadline under Section 263.401).
Appellant contends, however, that the trial court’s January 12 order retaining
the suit on its docket and extending the dismissal date was somehow deficient
because the trial court did not make “any findings particularized to the instant case”
but, instead, “merely regurgitate[d] the exact wording of the statute.” We disagree.
The first paragraph of the trial court’s January 12 order provides as follows:
Pursuant to § 263.401(b), Texas Family Code, the Court finds
that this Court has continuing jurisdiction of this suit, and 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. An order to retain the
case on the Court’s docket should be granted.
Following the above paragraph, the trial court made additional findings under
Sections 263.401(b-2) and (b-3) and set a new dismissal date that was 180 days after
the original dismissal date. The trial court’s order tracks the language of
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Sections 263.401(b), (b-2), and (b-3). As such, we hold that the January 12 order
was appropriate and complied with the requirements of Section 263.401 and that the
trial court therefore retained jurisdiction over the case at the time that it commenced
the trial.
Furthermore, because Appellant did not raise her complaints about any
deficiency in the trial court’s January 12 order, she has waived them. In G.X.H., the
supreme court ruled that “while a trial court’s failure to timely extend the automatic
dismissal date before that date passes—through a docket-sheet notation or
otherwise—is jurisdictional, claimed defects relating to the other requirements of
[Section] 263.401(b) are not.” 627 S.W.3d at 301. The supreme court therefore held
that, other than a complaint regarding the trial court’s failure to extend the automatic
dismissal date before it passes, complaints regarding the trial court’s compliance
with the requirements of Section 263.401(b) “must be preserved for appellate
review.” Id. Because Appellant failed to preserve her complaints about the
deficiency of the trial court’s order in this case, we hold that her complaints regarding
the form of the order are waived. See id.; see also TEX. R. APP. P. 33.1. We overrule
Appellant’s first issue.
II. Termination Findings and Standards
In her second issue, Appellant challenges the sufficiency of the evidence
presented at trial. Appellant’s sufficiency challenge is limited to the best interest
finding. Under this issue, Appellant specifically contends that the Department failed
to meet its burden of proof as to best interest because the Department “failed to
identify, locate, or contact the relatives of the Child within the fourth degree of
consanguinity or other placement options.”
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West 2022). To terminate parental
rights, it must be shown by clear and convincing evidence that the parent has
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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 jury and the trial
court found that Appellant had committed three of the acts listed in
Section 161.001(b)(1)—those found in subsections (D), (E), and (O). See id. They
also found, pursuant to Section 161.003(a), that Appellant suffered from a mental or
emotional illness or a mental deficiency that rendered her unable to provide for the
physical, emotional, and mental needs of the child—a condition that would continue
until the child’s eighteenth birthday. See id. § 161.003(a). Appellant does not
challenge any of these findings on appeal.
The jury and 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 A.T. See
id. §§ 161.001(b)(2), .003(a)(5). As noted above, Appellant’s second issue on appeal
relates only to the sufficiency of the evidence to support the best interest finding.
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
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 trier of fact below 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)).
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
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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.
A. Evidence Presented at Trial
The record shows that the Department became involved with A.T. when she
was three months old. At that time, Appellant was suffering from mental health
issues. She was admitted to Oceans Behavioral Hospital for emergency mental
health treatment and A.T. was temporarily placed with Appellant’s mother (M.T.),
who intervened in the suit below. M.T., however, was not approved to continue as a
placement for A.T. because M.T. tested positive for methamphetamine. A.T. was
then placed in foster care, and family service plans were created for Appellant, the
child’s father, and M.T. with the goal being to return A.T. to her family. That,
however, never occurred.
The father did not participate in the services required by his family service
plan and did not exercise any visitation with A.T. Furthermore, the father and
Appellant engaged in domestic violence. Neither the father nor his family desired
to be a placement for A.T. and the father’s grandmother was already raising a young
child that belonged to Appellant and the father.
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During the six-day jury trial, the Department presented extensive evidence—
including audio recordings of Appellant’s threats and bizarre discussions, testimony
from law enforcement officers who had encountered Appellant multiple times,
testimony from two of the permanency case managers for 2INgage, and testimony
from medical experts regarding Appellant’s mental health—from which the jury and
the trial court could have readily determined that Appellant was a danger to her child.
One example of Appellant’s behavior that indicated she would be a danger to her
child occurred during a supervised visit with A.T. While she was changing A.T.’s
diaper, Appellant observed that A.T. had diarrhea. As a result of Appellant’s bizarre
accusations that stemmed from this diaper change, A.T. (who was a mere seven or
eight months old) was subjected to a medical examination to rule out Appellant’s
allegations that A.T.’s hymen had been perforated while in foster care.
Appellant did not complete all of the services required of her in her court-
ordered family service plan—particularly the services related to Appellant’s mental
health. Appellant had a protracted history of mental health issues and had been
diagnosed with various mental health disorders, including a “delusional disorder”
that would affect Appellant’s ability to safely parent a child. M.T. explained that
Appellant’s version of reality is not necessarily accurate but it is “very real to her.”
One of the doctors who treated Appellant testified that her long-term prognosis was
concerning. Appellant continued to have unresolved mental health issues and, while
this case was pending below, was admitted to both Oceans Behavioral Hospital and
Mesa Springs Hospital, an inpatient psychiatric facility that mainly provides crisis
stabilization. It was also reported that Appellant was, at times, suicidal and
homicidal.
While this suit was pending below, Appellant engaged in criminal activity.
Appellant was confined in county jail at the time of trial; she had been charged with
assault family violence—with a deadly weapon, terroristic threat, and harassment,
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all of which remained pending against Appellant at that time. The victim of the
alleged harassment and terroristic threat was one of the permanency case managers
assigned to work with the family in this case. The victim of the alleged assault
family violence was M.T. Just four months prior to trial, police were dispatched to
M.T.’s residence in response to a 9-1-1 call relating to Appellant and M.T. Appellant
had threatened M.T. and attacked her with a knife or a turkey fork upon accusing her
of sexually abusing A.T. (who had been in foster care for over a year). M.T.
explained that during this incident, Appellant did not believe that M.T. was really
M.T. but, instead, was an imposter. When law enforcement arrived on scene,
Appellant informed them that “these people” stole her parents’ identity and that
“[t]hat bitch touched my kid.” Appellant also indicated that she was pregnant “with
a potato” and wanted an abortion.
Although M.T. desired to be a managing conservator for A.T., M.T. continued
to test positive for methamphetamine. Despite these test results, M.T. emphatically
denied having used methamphetamine in “years.” Further, because M.T. was unable
to protect herself from Appellant, the Department did not believe that she could
protect A.T. either. The jury found that M.T. should not be named as a managing
conservator or even a possessory conservator of A.T. As a result, the trial court
entered judgment that M.T. take nothing and that her suit in intervention be
dismissed. 1
Because the Department found no suitable family members that desired to be
a placement for A.T., the Department’s plan for A.T. was for her to remain in the care
of, and ultimately be adopted by, her foster parents. A.T. had been placed with the
same foster parents shortly after she was removed from Appellant’s care; at the time
1
We note that although M.T. did not file a notice of appeal, she prepared a response and submitted
it to us as her “appeal brief.” We received that response and reviewed its contents prior to issuing this
opinion.
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of trial, A.T. had lived with them for one and one-half years. A.T. was doing very
well in their care and had become part of their family. The foster mother testified
that she and her husband were able to provide a safe home for A.T. and that they
intended to adopt A.T. if she became available for adoption. The permanency case
managers who testified at trial believed that it would be in A.T.’s best interest for
Appellant’s parental rights to be terminated. A.T.’s attorney ad litem “begged” the
jury to protect A.T. and not return her to the chaos of Appellant’s and M.T.’s
household. The ad litem asked the jury to find that termination of Appellant’s
parental rights was in A.T.’s best interest.
B. Analysis
The trier of fact in the trial court is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. We are not at liberty to disturb the determinations of the
trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d
at 573. Giving due deference to the jury and the trial court, we hold that, based on
the evidence presented at trial and the Holley factors, the jury and the trial court
could reasonably have formed a firm belief or conviction that termination of
Appellant’s parental rights would be in the best interest of A.T. See Holley, 544
S.W.2d at 371–72. Upon considering the record as it relates to (1) the desires of the
child (who was too young to express any desire), (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 those involved, (5) the
plans for the child by the Department, (6) Appellant’s criminal activity while the
case was pending below, (7) Appellant’s continuing mental health issues, and (8) the
instability of Appellant’s situation, we hold that the evidence is legally and factually
sufficient to support the finding that termination of Appellant’s parental rights is in
the best interest of A.T. See id. We defer to the finding of the trier of fact below as
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to A.T.’s best interest, see C.H., 89 S.W.3d at 27, and we cannot hold in this case that
the finding as to best interest is not supported by clear and convincing evidence.
Under her challenge to the sufficiency of the evidence to support the best
interest finding, Appellant asserts that, in addition to the Holley factors, we should
consider whether the Department complied with its burden to identify, locate, and
contact other relatives and placement options that would allow Appellant to retain
her parental rights. While we do not agree that any failure of the Department in this
regard would prevent a trier of fact from finding that termination of a parent’s
parental rights would be in a child’s best interest, we have nonetheless reviewed the
record to address Appellant’s contention. See In re G.B. II, 357 S.W.3d 382, 384
(Tex. App.—Waco 2011, no pet.) (holding that the Department’s failure to conduct
or obtain a home study pursuant to Section 262.114 was not a bar to termination);
see also In re G.B., No. 06-20-00031-CV, 2020 WL 4589761, at *2 (Tex. App.—
Texarkana Aug. 11, 2020, no pet.) (holding that there is no duty to place a child with
a relative before the parent’s parental rights may be terminated).
The record in this case shows that the Department satisfied its statutory duties
to attempt to locate relatives and fictive kin to be a placement for A.T. See FAM.
§ 262.114(a) (providing that the Department must perform a background and
criminal history check of relatives or other designated individuals identified as a
potential relative or designated caregiver), § 262.1095(a), (d), (e) (providing that the
Department must use due diligence to identify and locate relatives and potential
caregivers and that the failure of a parent to complete the child placement resources
form does not relieve the Department of its duty to seek out information). In addition
to providing at least two child placement resources forms to Appellant, the
Department also attempted to locate friends and family members. One of the
permanency case managers testified that she completed a “Finders” report on A.T.’s
parents but that neither the report nor her discussions with the family revealed any
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suitable relatives. The Department also (1) conducted a home study on M.T., which
was not approved; (2) ruled out M.T.’s brother, either based on his criminal or CPS
history; and (3) contacted Appellant’s sister, M.T.’s mother, a friend whom Appellant
listed as a potential placement, A.T.’s father, and members of the father’s family—
all of whom declined to be considered as a potential placement for A.T. Thus, as far
as the Department was aware, after attempting to locate A.T.’s relatives and fictive
kin, none of the relatives or fictive kin were viable placement options.
Under the circumstances present in this case, we cannot hold that the
Department failed in its duties under the Family Code. Moreover, any failure of the
Department to locate other relatives or fictive kin for the potential placement of A.T.
does not alter our conclusion that the evidence is legally and factually sufficient to
support the finding of the trier of fact that the termination of Appellant’s parental
rights would be in A.T.’s best interest. We overrule Appellant’s second issue on
appeal.
III. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
February 23, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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