in the Interest of A.S.D., a Child ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00255-CV
IN THE INTEREST OF A.S.D.,
A CHILD
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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant V.Z. appeals from the trial court’s termination of her parental
rights to daughter A.S.D., who sustained life-threatening injuries at the hands of
C.N., V.Z.’s boyfriend (Boyfriend). V.Z. contends that the evidence is insufficient
to support the trial court’s findings under (D), (E), and (O) and the best interest
finding; that the trial court abused its discretion by denying her motion to extend
the one-year dismissal deadline; and that she was deprived of due process, due
course of law, and equal protection. Because we hold that the evidence is
1
See Tex. R. App. P. 47.4.
sufficient to support the endangerment findings, that the trial court did not abuse
its discretion by refusing to extend the dismissal deadline, and that V.Z. forfeited
her constitutional issues by failing to preserve them below, we affirm the trial
court’s judgment.
I. Sufficient Evidence to Support Termination
In her first two issues, V.Z. appears to contend that the evidence is legally
and factually insufficient to support the trial court’s endangerment and best
interest findings.2 We note that V.Z. did not raise legal sufficiency of the
evidence to support the best interest finding in her statement of points. Under
former section 263.405(i), which controls this case, 3 V.Z. has waived any legal
sufficiency issue regarding the best interest finding.4 While V.Z. did not distinctly
raise legal sufficiency of the evidence to support the endangerment findings in
her statement of points, however, we liberally construe her ―[n]o evidence‖
subpoints to her factual sufficiency endangerment issues in the statement of
points as raising legal sufficiency issues on endangerment. We therefore
2
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West Supp. 2011).
3
Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen.
Laws 332, 332 (adding subsection (i), requiring statement of points, to section
263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg.,
R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but
noting that former section 263.405 is still in effect for final orders rendered before
September 1, 2011).
4
See id.; In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010) (holding mother’s
failure to raise challenge to trial court’s extension of statutory deadline in her
statement of points waived issue).
2
address both her legal and factual sufficiency issues regarding the
endangerment findings.
A. Standard of Review
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child.5 Both elements must be established; termination
may not be based solely on the best interest of the child as determined by the
trier of fact.6
Termination decisions must be supported by clear and convincing
evidence.7 Evidence is clear and convincing if it ―will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to
be established.‖8 Due process demands this heightened standard because
termination results in permanent, irrevocable changes for the parent and child.9
5
Tex. Fam. Code Ann. § 161.001 (West Supp. 2011); In re J.L., 163
S.W.3d 79, 84 (Tex. 2005).
6
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In
re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied).
7
Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).
8
Id. § 101.007 (West 2008).
9
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007) (contrasting standards for termination and modification).
3
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven.10 We review all the evidence in the light most favorable to the finding
and judgment.11 We resolve any disputed facts in favor of the finding if a
reasonable factfinder could have done so.12 We disregard all evidence that a
reasonable factfinder could have disbelieved.13 We consider undisputed
evidence even if it is contrary to the finding.14 That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. 15
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province.16 And even
10
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id. at 573, 574.
4
when credibility issues appear in the appellate record, we defer to the factfinder’s
determinations as long as they are not unreasonable.17
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own.18 We
determine whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated subsections (D) and (E) of section
161.001(1) and that the termination of the parent-child relationship would be in
the best interest of the child.19 If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the
finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction in the truth of its finding, then the evidence is factually
insufficient.20
B. Treatment of Findings of Fact
Findings of fact are the exclusive province of the factfinder. 21 Findings of
fact entered in a case tried to the court have the same force and dignity as a
17
Id. at 573.
18
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
19
Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex.
2002).
20
H.R.M., 209 S.W.3d at 108.
21
Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744–45 (Tex.
1986).
5
jury=s answers to jury questions.22 The trial court=s findings of fact are reviewable
for legal and factual sufficiency of the evidence to support them by the same
standards that are applied in reviewing evidence supporting a jury=s answer.23
But when findings of fact are filed and are unchallenged, they occupy the
same position and are entitled to the same weight as the verdict of a jury; they
are binding on an appellate court unless the contrary is established as a matter
of law or there is no evidence to support the finding. 24
C. Endangerment
1. The Law
As we have explained in a similar case,
Endangerment means to expose to loss or injury, to
jeopardize. The trial court may order termination of the parent-child
relationship if it finds by clear and convincing evidence that the
parent has knowingly placed or knowingly allowed the child to
remain in conditions or surroundings that endanger the physical or
emotional well-being of the child. Under subsection (D), it is
necessary to examine evidence related to the environment of the
child to determine if the environment was the source of
endangerment to the child’s physical or emotional well-being.
Conduct of a parent in the home can create an environment that
endangers the physical and emotional well-being of a child.
22
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
23
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994).
24
McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Rischon Dev.
Corp. v. City of Keller, 242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet.
denied), cert. denied, 129 S. Ct. 501 (2008).
6
. . . . Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical or emotional
well-being was the direct result of the parent’s conduct, including
acts, omissions, and failures to act. 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.
To support a finding of endangerment, the parent’s conduct
does not necessarily have to be directed at the child, and the child is
not required to suffer injury. The specific danger to the child’s well-
being may be inferred from parental misconduct alone, and to
determine whether termination is necessary, courts may look to
parental conduct both before and after the child’s birth . . . . As a
general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being.25
Additionally, a parent’s mental state may be considered in determining
whether a child is endangered if that mental state allows the parent to engage in
conduct jeopardizing the child’s physical or emotional well-being.26 Finally, even
if a parent makes dramatic improvements before trial, ―evidence of improved
conduct, especially of short-duration, does not conclusively negate the probative
value of a long history of . . . irresponsible choices.‖27
2. Application of the Law to the Facts
The record contains the following evidence. When she was young, V.Z.
was abused by her father and raped by one of his friends. While she was still in
25
In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4 (Tex. App.—
Fort Worth Mar. 26 2009, no pet.) (mem. op.) (citations omitted).
26
In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet.
denied).
27
In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
7
high school, she met A.S.D.’s father (Father) through a friend. V.Z. became
pregnant with A.S.D., moved out of state with Father for a short time, returned to
Palestine, Texas, and delivered A.S.D. on October 8, 2007. V.Z. and A.S.D.
lived with Father’s sister for about six weeks but left after the two women had a
dispute. V.Z. then returned to her parents’ home with the baby. After two to
three months, V.Z. and the baby left V.Z.’s parents’ home after V.Z.’s father hit
her, and they moved into a Palestine shelter, where they lived until September
2008. At the shelter, V.Z. received assistance with obtaining her legal status.
She also began having telephone contact in April 2008 with Boyfriend, a person
she had never personally met.
In September 2008, leaving the shelter only because her ―time was up,‖
V.Z. returned to her parents’ home with A.S.D., where they stayed about two or
three months. On December 13, 2008, Boyfriend met V.Z. and A.S.D. in person
in Palestine, and V.Z. travelled with A.S.D. and Boyfriend from Palestine to
Whitesboro, Cooke County, more than a hundred miles away, to live with him
there. V.Z. did not know any details about where she and her fourteen-month-old
would be living. She also did not know about Boyfriend’s past cocaine use.
V.Z. claimed that she moved to enroll in school and that she had a job
opportunity as a waitress but had no one she trusted to look after A.S.D. She
―wasn’t going to leave [her] baby with [Boyfriend].‖ At trial, V.Z. conceded that
taking A.S.D. to live with someone whom she had just met endangered her well-
being. Whereas V.Z. had family, friends, and the shelter in Palestine to turn to
8
for help, she knew no one other than Boyfriend in Whitesboro. Within the first
week, Boyfriend called V.Z. ―a whore in Spanish‖ because he had heard that she
had been unfaithful. After less than three months in Whitesboro, Boyfriend, V.Z.
and A.S.D. moved to a ranch in Aubrey, Texas. In Aubrey, Boyfriend shoved
V.Z. once while A.S.D. was present in the home. V.Z. denied that the baby was
in the same room. They all stayed in Aubrey about three months and then
moved to a horse ranch in Pilot Point. At each location, Boyfriend and V.Z.
usually had other roommates, about whom V.Z. appeared to know little.
V.Z. testified that A.S.D. was always with her. She also acknowledged,
however, that she let A.S.D. stay with a pregnant friend of Boyfriend’s for a week
so that the friend could find out what it was like to take care of a child. Finally,
Boyfriend also took care of A.S.D. on July 6, 2009, while V.Z. went to court on a
shoplifting charge and shopped for groceries.
On July 7 or 8, 2009, A.S.D., who was twenty-one months old, stopped
eating and vomited, so V.Z. took her to Denton Presbyterian Hospital. The
doctor found bruises on V.Z.’s face and back. At trial, V.Z. did not remember
whether she had discussed the origin of the bruises then but stated that she
would have done so if the medical personnel had asked. The medical records
indicated, however, that she did not explain how the bruises occurred. And she
testified that she ―really didn’t know what had happened to [A.S.D.] with the
bruising‖ despite providing earlier explanations at trial of various falls to account
for them.
9
Later that same week, on Saturday, July 11, 2009, Boyfriend interrupted
V.Z.’s shower to tell her that something was wrong with A.S.D. V.Z. testified that
she had seen A.S.D. a few minutes earlier and that she had been fine. But
A.S.D. was now ―completely pale and she didn’t look right.‖ V.Z. and Boyfriend
rushed A.S.D. to the nearest hospital. V.Z. could tell that A.S.D.’s condition was
deteriorating on the way to the hospital; A.S.D. became dehydrated and was
sleepy.
A.S.D. was transferred to Dallas Children’s Medical Center later that
evening, and she had surgery in the early morning hours of July 12, 2009.
Doctor Matthew Cox, board certified in child abuse pediatrics, testified that her
injuries were among the most severe that he had seen a child endure. The first
part of her small intestine ―was torn completely apart,‖ and she had a laceration
to her pancreas, bruising to her right kidney, tearing of the mesentery (the fatty
tissue through which the blood vessels supply blood to the bowels and the
stomach), and a tear in the mezzo-colon. The doctor testified that in his opinion,
the life-threatening, internal injuries were non-accidental and had to have been
caused by someone intentionally. Cox testified that he would expect a child who
had sustained such injuries to cry out or scream and to be in severe pain.
Dr. Cox also testified that based on the pathology findings and the
description of the history of when her symptoms began, the injury occurred four
to five days before A.S.D. was rushed to the hospital. He further testified that
10
V.Z. gave him no explanation for the external bruising. A.S.D. was removed from
V.Z. on July 12, 2009.
The psychologist who evaluated V.Z. within months of A.S.D.’s removal
diagnosed V.Z. with post traumatic stress disorder and major depressive disorder
on Axis I and personality disorder NOS and mixed personality disorder with
borderline paranoid features on Axis II. The psychologist also testified that V.Z.
admitted that she had attempted suicide at the ages of fifteen and sixteen.
Boyfriend was the primary suspect in the criminal investigation of A.S.D.’s
injuries from the first week following her hospitalization, and he eventually pled
guilty pursuant to a plea bargain to reckless injury to a child on May 4, 2010,
approximately two months before the termination trial. Included in his plea
papers is a signed judicial confession. But even at trial, except for a temporary
lapse based on her perception of Boyfriend’s initial behavior at trial, V.Z.
consistently maintained that she does not know what really happened to A.S.D.
and that she is not sure that he caused A.S.D.’s injuries, offering explanations of
possible accidents or other culprits, specifically, the couple’s roommates at the
time of the injury.
V.Z. continued to meet with Boyfriend after A.S.D.’s removal. V.Z. said
that she did so to try to help the police locate him and because she wanted to
know what had happened to A.S.D. We note that the record is void of any
evidence that she tried to track down her former roommates for the police.
11
During this time, V.Z. became pregnant with Boyfriend’s child. The two pushed
and hit each other even after Boyfriend knew she was pregnant.
V.Z. continued to visit Boyfriend after he had gone to jail for injuring A.S.D.;
V.Z. testified that she did this to try to find out what happened to A.S.D. and
because his family would give her money. V.Z. visited Boyfriend in jail at least
fifty times. V.Z. provided a written statement to Boyfriend’s criminal defense
counsel as well as medical research.
The trial court’s unchallenged findings of fact include the following:
11. . . . . In December 2008, [V.Z.] met [Boyfriend] in person for
the first time. She took [A.S.D.] and moved over a hundred
miles away from the Palestine area to live with [Boyfriend].
[V.Z.] moved with [A.S.D.] to an area unknown to her and to
which she did not have a support system to live with a person
she had just met.
12. In 2008, [V.Z.] with [A.S.D.] lived in a shelter for abuse victims
in the Palestine area. [V.Z.] was aware that she could return
to the shelter.
13. In December 2008, [Boyfriend] called [V.Z.] a derogatory
name, using the street vernacular for ―prostitute‖, with the child
present.
14. Prior to July 2009, [Boyfriend] pushed [V.Z.] during an
argument while [A.S.D.] was in the home.
15. In April 2009, [V.Z.] engaged in shoplifting with [A.S.D.] in her
care and was arrested for theft during the incident.
16. [V.Z.] allowed [A.S.D.] to stay with an acquaintance of
[Boyfriend] for one week so that the acquaintance could
experience what it was like to be a parent.
17. [A.S.D.] was brought to Denton Presbyterian Hospital on or
about July 8, 2009. Bruises on the face and back were
12
observed on [A.S.D.] and [V.Z.] stated to staff that she did not
know how they were caused.
18. [A.S.D.] was brought to Denton Regional Medical Center on or
about July 11, 2009. While at the hospital, [V.Z.] was
questioned about the bruises on [A.S.D.]’s face and back.
[V.Z.] provided no explanation for the cause.
19. [A.S.D.] was transferred to Children’s Medical Center, Dallas,
on or about July 12, 2009 for severe, life-threatening
abdominal injuries. The injuries included a transected small
intestine, a laceration to her pancreas, and bruising to her
kidney. The injuries were indicative of significant blunt force
trauma to the abdomen.
20. While at Children’s Medical Center, [V.Z.] was questioned by
medical staff on more than one occasion about the bruises on
[A.S.D.] and she had no explanation as to how they occurred.
Initially, [V.Z.] did not provide an explanation for the cause of
[A.S.D.]’s severe abdominal injuries.
21. [V.Z.] was informed by medical staff about the nature and
severity of the child’s injuries.
22. Danny Roberts, CPS investigator, responded to Children’s
Medical Center on July 12, 2009. He interviewed [V.Z.] [V.Z.]
did not provide him with a plausible explanation for [A.S.D.]’s
injuries. [V.Z.] was informed by Danny Roberts that her
explanations for the child’s abdominal injuries were not
plausible and she understood that the injuries were
nonaccidental. [V.Z.] acknowledged to Danny Roberts that if
she did not injure [A.S.D.] that [Boyfriend] was the only other
possible perpetrator.
23. [V.Z.] and [Boyfriend] were the only caregivers for [A.S.D.] in
the days and week prior to the child’s hospitalization. [V.Z.]
and [Boyfriend] were the only plausible perpetrators of the
abuse on [A.S.D.]
24. [V.Z.] admitted that [she] and [Boyfriend] were the only
caregivers for [A.S.D.] in the days and week prior to the child’s
hospitalization.
....
13
26. After removal of the child, [V.Z.] made contradictory
statements that others were possible perpetrators of the
abuse of [A.S.D.]
27. [V.Z.] was aware that law enforcement and CPS believed
[Boyfriend] was responsible for [A.S.D.]’s injuries.
28. [V.Z.] continued to maintain contact with [Boyfriend] during the
case, including traveling throughout the state to meet with him;
having a sexual relationship with him[,] and visiting him in jail
until mid-May 2010.
29. In November 2009, [Boyfriend] and [V.Z.] were involved in a
physical altercation. [V.Z.] was aware that shelters were
available to assist her and she did not take advantage of this
resource.
30. [V.Z.] maintained during the majority of this case that
[Boyfriend] was innocent of the allegations that he caused the
injuries to [A.S.D.] [V.Z.] provided documents and statements
to his criminal defense attorney in support of [Boyfriend].
[V.Z.] does not believe that [Boyfriend] caused the injuries to
[A.S.D.]
31. [Boyfriend] pled guilty and was convicted of Injury to a Child of
[A.S.D.]
32. [V.Z.] became pregnant after the removal of [A.S.D.] and gave
birth to the child in May 2010.
....
38. [V.Z.] had unstable housing during the case and stayed with
individuals she had ―just met[,]‖ endangering herself and her
unborn child. [V.Z.] explicitly admitted to going home with
strangers she met in a parking lot or at the jail while visiting
[Boyfriend] in order to maintain a roof over her head.
....
42. [V.Z.] has a history of endangering [A.S.D.]; has a history of
unstable housing; and residing with individuals that she
recently met.
14
The record contains evidence to support all of these unchallenged findings;
accordingly, we are bound by them. 28 Consequently, reviewing the evidence in
the light most favorable to the verdict, we hold that the evidence is legally
sufficient to support the trial court’s endangerment findings. Further, reviewing
all the evidence and giving due deference to the trial court’s findings, we hold
that the evidence is factually sufficient to support the trial court’s endangerment
findings.
D. Best Interest
There is a strong presumption that keeping a child with a parent is in the
child’s best interest.29 Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest.30 The following
factors should be considered in evaluating the parent’s willingness and ability to
provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the
child;
(4) whether the child has been the victim of repeated harm after the
initial report and intervention by the department or other agency;
28
See McGalliard, 722 S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at
166.
29
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
30
Tex. Fam. Code Ann. § 263.307(a) (West 2008).
15
(5) whether the child is fearful of living in or returning to the child’s
home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the
child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of
time;
(12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the
family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities;
and
16
(13) whether an adequate social support system consisting of an
extended family and friends is available to the child.31
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child 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 best interest of the child;
(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 acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent. 32
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate.33 Furthermore, undisputed evidence of just one factor may be
31
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
32
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations
omitted).
33
C.H., 89 S.W.3d at 27.
17
sufficient in a particular case to support a finding that termination is in the best
interest of the child.34 On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. 35
In addition to the evidence and findings discussed above, the record
contains the following evidence. The psychologist who diagnosed V.Z. with post
traumatic stress disorder and major depressive disorder on Axis I and to whom
V.Z. admitted two prior suicide attempts recommended a psychiatric referral and
compliance with any psychiatric recommendations, counseling, and parent
education classes. The psychologist testified that without ongoing treatment or
progress made in treatment, it would be difficult for V.Z. to place A.S.D.’s best
interest ahead of her own needs and feelings. In early 2010, several months
after getting the psychological evaluation, V.Z. finally saw a psychiatrist. V.Z.
admitted at trial that the psychiatrist had recommended medication but that she
refused to take it and that she had not seen the psychiatrist since April 2010.
But V.Z. did receive extensive counseling from a licensed clinical social
worker, participating in twenty-eight sessions instead of the standard twelve for a
CPS client, and completed parent education classes. V.Z.’s counselor opined
that V.Z.’s depression improved through counseling. Yet when asked what else
(besides motivation and willingness) V.Z. would need to become a good mother,
34
Id.
35
Id.
18
her counselor testified, ―She needs stability, housing, a job, [to] be able to protect
the children, [to use] good judgment of course around the children. We haven't
seen that, yet, unfortunately.‖
By V.Z.’s own account, she and A.S.D. moved at least seven times before
A.S.D.’s removal. After the removal, V.Z. moved at least fourteen more times,
sometimes moving in with complete strangers, including two people she met
while visiting Boyfriend in jail and one person she met in a parking lot. A few
days before trial, she secured an apartment, thanks to people from her church
paying the first two months’ rent. But she still had no job and no work permit.
In addition to the evidence of V.Z.’s protective actions concerning
Boyfriend, the letter that she wrote his criminal defense counsel discusses her
desire to marry him and raise a family with him. This fact becomes especially
significant, given her prolonged denial of or ambivalence about his responsibility
for A.S.D.’s injuries and the facts that they already share a child and that his
sentence for reckless bodily injury was for only two years’ confinement and
began over a year ago.
Upon her release from the hospital, A.S.D. was placed with foster parents
in a stable home. She has no remaining medical needs related to her injury and
is doing well in her foster home. A.S.D. and the foster parents have bonded, and
the foster parents would like to adopt her if her birth parents’ rights are
terminated.
19
In addition to the findings provided above, the trial court also entered the
following unchallenged findings of fact, all of which are supported by the
evidence:
25. An adversary hearing was held on July 24, 2009. [V.Z.]
appeared in person and waived counsel and agreed to the
entry of the temporary orders.
....
33. On July 24, 2009, the Court entered temporary orders that
specifically established the actions necessary for [V.Z.] to
obtain the return of [A.S.D.]
34. On July 24, 2009, [V.Z.] was ordered by the Court to
participate in the following services: a psychological
evaluation and follow the recommendations of the
psychological evaluation; participate in individual counseling
and follow any and all recommendations and continue until no
further sessions are necessary; participate in parenting
classes until completion; and submit to drug testing at the
request of [the Texas Department of Family and Protective
Services (TDFPS)].
35. [V.Z.’s] psychological evaluation recommended that she
comply with a psychiatric evaluation and follow the
recommendations. [V.Z.] did not follow the recommendations
of the psychiatric evaluation.
36. [V.Z.] was court ordered to establish and maintain safe and
suitable housing and refrain from engaging in criminal activity.
[V.Z.] was court ordered to establish and maintain suitable
employment for a period of at least six months and continue
through the pendency of the suit.
37. During the case, Children’s Medical Center staff, [TDFPS]
staff, and CASA advocates referred [V.Z.] to shelters to assist
her with housing.
....
20
39. [V.Z.] has been employed and had employment available to
her during periods of her life. [V.Z.] had employment available
to her during this case. [V.Z.] did not maintain suitable
employment for a period of six months during this case. While
being physically capable of being employed [V.Z.] instead
relies on the charity of strangers or relatives of her imprisoned
boyfriend for support.
40. [TDFPS] made reasonable efforts to return [A.S.D.] to [V.Z.]
by offering her services; supporting her in working her
services; support with her immigration status; and support in
referring her to community resources.
41. CASA supported [V.Z.] by supporting her in working her
services; support with her immigration status; and support in
referring her to community resources.
....
43. [V.Z.] has inadequate plans to parent [A.S.D.] [V.Z.] does not
have an adequate social support system to aid her in the care
of [A.S.D.]
44. The Court explicitly finds that at the present time [V.Z.] does
not have the means to support and care for herself, and
therefore, does not have the means to support and care for a
young child.
....
57. [TDFPS]’s plan for [A.S.D.] is adoption by foster parents who
have cared for the child since July 2009. The Foster Parents
have met the needs of [A.S.D.] while she has been placed in
their home. The Foster Parents can provide a safe and stable
environment for the child. The foster parents have an
adequate support system.
Applying the appropriate standard of review, we hold that the evidence is
factually sufficient to support the best interest finding. Having held that the trial
court’s endangerment findings are supported by legally and factually sufficient
21
evidence and that the best interest finding is supported by factually sufficient
evidence, we overrule V.Z.’s first two issues.
Because a best interest finding and a finding of only one ground alleged
under section 161.001(1) are sufficient to support a judgment of termination,36 we
do not reach V.Z.’s fourth issue, which challenges the finding under subsection
(O).37
II. No Abuse of Discretion to Deny Extension of Dismissal Deadline
In her third issue, V.Z. complains that the trial court abused its discretion
by not extending the case by 180 days because she needed more time to obtain
a work permit. On April 20 and June 18, 2010, V.Z. filed motions to extend the
dismissal date by 180 days, but there is no mention of problems with her
immigration status in those motions. We review a trial court's determination on a
motion for extension for an abuse of discretion.38 Section 263.401 of the family
code provides,
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b), 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 shall dismiss the suit affecting the parent-child relationship filed
by the department that requests termination of the parent-child
36
In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no
pet.).
37
See Tex. R. App. P. 47.1.
38
In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth), pet. denied,
260 S.W.3d 462 (Tex. 2008).
22
relationship or requests that the department be named conservator
of the child.
(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). 39
On June 18, 2010, twelve days before trial began and almost a year after
the trial court ordered that V.Z. obtain stable housing and stable employment for
at least six months, the trial court conducted a hearing on the motion filed June
18, 2010. V.Z. testified that she requested an extension because it had been
difficult to find work during her pregnancy and because she had not yet obtained
a work permit. She stated that she had an upcoming appointment for the
necessary fingerprinting and picture-taking on June 29, 2010. She testified
unequivocally that after June 29, 2010, she would be able to be legally employed
in the United States. On cross-examination, she acknowledged that it was not
certain that she would be able to work legally by that date because another
process would also have to be completed before she could work legally in the
country. No evidence was offered or admitted to demonstrate why the
fingerprinting and picture-taking had not already taken place.
39
Tex. Fam. Code Ann. § 263.401 (West 2008).
23
V.Z. acknowledged that it was possible that her baby born May 24, 2010,
was conceived in August 2009, after A.S.D.’s removal, and she admitted that
Boyfriend fathered that baby. She testified that she did not know that Boyfriend
had pled guilty to injuring A.S.D. and did not know if she believed that he was
guilty. She admitted to visiting Boyfriend in jail and updating him on the
pregnancy. She also admitted to missing visits with A.S.D. and counseling
sessions because of transportation issues, living in several different places while
the case was pending, and a several-month gap in counseling.
V.Z. argued that her recent pregnancy and her immigration status were
extraordinary circumstances. TDFPS and A.S.D.’s ad litem opposed extending
the case. The trial court denied the motion.
Given the evidence presented in the hearing, especially that indicating a
failure to protect, we cannot say that the trial court abused its discretion by failing
to find that extraordinary circumstances justified a 180–day extension of the
dismissal deadline.40 We overrule V.Z.’s third issue.
40
See In re D.K., No. 02-09-00117-CV, 2009 WL 5227514, at *2 (Tex.
App.—Fort Worth Dec. 31, 2009, no pet.) (mem. op.) (holding that trial court’s
determination that mother who had failed to visit children during pendency of
case failed to present extraordinary circumstance was not abuse of discretion); In
re L.D.K., No. 02-07-00288-CV, 2008 WL 2930570, at *3 (Tex. App.—Fort Worth
July 31, 2008, no pet.) (mem. op.) (holding father who argued service plan was
deficient because of misnomer despite evidence that he knew what was
expected of him failed to present any extraordinary circumstances that would
necessitate an extension); Shaw v. Tex. Dep’t of Family & Protective Servs., No.
03-05-00682-CV, 2006 WL 2504460, at *8 (Tex. App.—Austin Aug. 31, 2006,
pet. denied) (mem. op.) (holding mother did not show that needing more time
24
III. Constitutional Issues Waived
In her fifth issue, V.Z. complains that she was deprived of due process
guaranteed by the Fourteenth Amendment of the United States Constitution. In
her sixth issue, V.Z. complains that she was deprived of due course of law
guaranteed by section 19 of Article I of the Texas Constitution. In her seventh
issue, she complains that she was deprived of equal protection guaranteed by
both constitutions. To preserve a complaint for appellate review, a party must
have presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling, if they are not apparent from the
context of the request, objection, or motion. 41 If a party fails to do this, error is
not preserved, and the complaint is waived.42 The objecting party must get a
ruling from the trial court.43 This ruling can be either express or implied.44
Because V.Z. failed to raise these constitutional complaints below, she has
failed to preserve them for appeal. We therefore overrule V.Z.’s fifth, sixth, and
seventh issues.
after failing to make progress on the service plan for eight months amounted to
extraordinary circumstances).
41
Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1).
42
Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
43
Tex. R. App. P. 33.1(a)(2), (b).
44
Id.; Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999,
pet. denied).
25
IV. Conclusion
Having overruled V.Z.’s dispositive issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: November 17, 2011
26