in the Interest of J.M. and J.M., Children ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00283-CV
___________________________
IN THE INTEREST OF J.M. AND J.M., CHILDREN
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-104781-17
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
The trial court terminated the parental rights of L.M. (Father) to his two
children, J.M. (Julie) and J.M. (Joshua). 1 In three issues on appeal, Father argues that
the trial court erred by denying his motion for continuance of a trial that he did not
attend and that the evidence is insufficient to support the predicate findings for
termination. We hold that the trial court did not abuse its discretion by denying
Father’s continuance motion and that the evidence is sufficient to support the
termination of his parental rights. We therefore affirm the trial court’s judgment.
Background
Father has a pattern of engaging in criminal acts, including violent offenses. In
April 2017, he was arrested for assaulting2 F.M. (Mother) by hitting her with a belt
and Julie by hitting her with his hand or with a belt. At that time, the Department of
Family and Protective Services (the Department) removed Julie and Joshua from their
parents’ legal custody and filed a petition seeking termination of the parents’ parental
rights to the children if reunification could not be achieved.3 Upon their removal, Julie
1
To protect the children’s privacy, we use aliases for them and for related
persons throughout this opinion. See Tex. Fam. Code Ann. § 109.002(d) (West Supp.
2018); Tex. R. App. P. 9.8(b)(2).
2
See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2018).
3
The Department submitted a lengthy affidavit to the trial court to explain the
facts that required the children’s removal. The trial court granted the Department
temporary managing conservatorship of the children. Mother eventually voluntarily
2
was fifteen years old, and Joshua was three years old. Father later pleaded guilty for
assaulting Mother and Julie, and a court sentenced him to 120 days’ confinement in
separate cases, with the sentences running concurrently.
In September 2017, during the Department’s case concerning the children,
Father made a terroristic threat4 against a man while using or exhibiting a knife. He
later pleaded guilty to committing that offense, and pursuant to a plea bargain, a court
sentenced him to 125 days’ confinement. Also in September 2017, Father fled from a
police officer, thus committing the offense of evading arrest or detention. 5 He later
pleaded guilty and received a 125-day sentence.
After Julie and Joshua’s removal, Father visited them sporadically. From the
time of their removal in April 2017 to the September 2018 trial, he saw them only
nine times. During part of that time, he was confined because of the offenses
described above. He last saw the children in May 2018. According to Vicki Garza, a
conservatorship worker for the Department, Father behaved improperly in some of
the visits. For example, in one of the visits,
he became erratic in behavior with [Mother] . . . as well as with [Julie].
He started cursing[,] . . . so he was asked to leave.
....
relinquished her parental rights to the children, and the trial court terminated those
rights. She has not appealed.
See id. § 22.07(a) (West Supp. 2018).
4
See id. § 38.04(a) (West 2016).
5
3
. . . [On a] second occasion . . . at the last visit . . . he, again, was
expected to have a specific behavior with [Julie]. And he started showing
her all these things that happened in jail and stuff. And I had asked him
not to have that kind of conversation.
At some point, Father moved to New Mexico. He did not provide the
Department with his address there, so the Department could not determine whether
his home would provide a safe environment for the children. He failed to maintain
consistent contact with Garza.
In June 2018, the children began living with their maternal aunt. The maternal
aunt met their needs, including the special needs of Joshua, who is autistic. She
wanted to adopt them, and Julie expressed that same desire if returning to her parents’
care was not an option.6 Garza testified that the children had stability in the maternal
aunt’s home. She expressed that she had no reason to believe that the maternal aunt
would not be able to continue to meet the children’s needs.
During the Department’s case, the Department offered services to Father
aimed at reunifying him with the children. He did not complete any of the services.
He also did not provide monetary support for the children after their removal.
The children’s attorney ad litem supported termination of Father’s parental
rights and believed termination was in the children’s best interest. He told the trial
court that he had spoken with Julie and that Julie “was okay with” permanently living
6
Joshua was four years old at the time of trial, but because of his autism, he was
not verbal.
4
with her aunt. He also stated that the maternal aunt was “in it for the long haul” and
wanted to adopt the children.
At the end of a bench trial on the Department’s termination petition, the trial
court terminated Father’s parental rights to Julie and to Joshua. Father brought this
appeal.
Motion for Continuance
In his first issue, Father contends that the trial court erred by denying his
motion for continuance of the trial. We review a trial court’s denial of a motion for
continuance for an abuse of discretion. In re Z.C., 280 S.W.3d 470, 478 (Tex. App.—
Fort Worth 2009, pet. denied). We determine whether the trial court’s action was so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. We
consider whether the trial court acted without reference to guiding rules or principles.
Id.
On August 10, 2018, Father filed a motion for continuance of a trial set that
day. In Father’s motion, his counsel represented that until August 10, Father’s
“contact information and location had been unknown . . . for several months,” that
counsel had not had an adequate opportunity to consult with Father about the trial,
and that Father was unable to attend the trial. Father asked the court for a
continuance so that he could attend the trial.
5
On August 13, the trial court referred the case to an associate judge 7 and reset
the trial date to September 6, 2018. The associate judge conducted the trial in
September. Father’s counsel appeared for trial, but Father did not. At the beginning
of the trial, counsel told the trial court that he did not know why Father was not there
and explained, “My office was in contact with [Father] as late as last week over the
phone. He was aware of the court setting, and I don’t have a reason for his lack of
attendance today.” Counsel orally asked the trial court for a continuance so that
Father could “be here and be heard.” The trial court denied the continuance.8
Faced with Father’s unexplained and unjustified absence from a trial at which
he had the opportunity to be “heard,” we cannot conclude that the trial court acted
arbitrarily or unreasonably by refusing to reset the trial for another date to give Father
the same opportunity. See In re D.W., 353 S.W.3d 188, 192–93 (Tex. App.—Texarkana
2011, pet. denied) (holding that a trial court did not abuse its discretion by denying a
motion for continuance when a parent failed to attend her trial and explaining that if
the parent “wished to retain rights to her child, it was necessary for her to take the
actions necessary to exercise those rights”); see also Shadoian v. Shook, No. 03-18-00242-
CV, 2018 WL 3625766, at *3 (Tex. App.—Austin July 31, 2018, no pet.) (mem. op.)
7
See Tex. Fam. Code Ann. §§ 201.001–.018 (West 2014 & Supp. 2018).
8
We will assume, without deciding, that Father’s August 2018 written motion
for continuance was sufficient to preserve his complaint about the associate judge’s
September 2018 ruling. See Tex. R. App. P. 47.1 (“The court of appeals must hand
down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”).
6
(“[T]he trial court was not required to grant a continuance simply because Shadoian
could not be present and wished to be.”); Ray v. Ray, 542 S.W.2d 209, 212 (Tex. Civ.
App.—Tyler 1976, no writ) (holding that a trial court did not abuse its discretion by
denying a motion for continuance when a party failed to appear for trial and the
party’s absence was unexcused). We hold that the trial court did not abuse its
discretion by denying Father’s motion for continuance, and we overrule his first issue.
See Z.C., 280 S.W.3d at 478.
Factual Sufficiency
In his second and third issues, Father argues that the evidence is factually
insufficient to support two of the trial court’s findings supporting termination.9 In a
termination case, the State seeks to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s right
to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2018); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). When the State seeks to sever the relationship between a
parent and a child, it must first observe fundamentally fair procedures. In re E.R., 385
S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S.
Ct. 1388, 1391–92 (1982)). We strictly scrutinize termination proceedings in favor of
9
In the conclusion of his brief, Father raises legal insufficiency in addition to
factual insufficiency. He did not brief any legal insufficiency issues in his argument,
and his issue statements raise only factual insufficiency. To the extent that he
implicitly argues legal insufficiency, our analysis below applies equally to that
argument.
7
the parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–
55; Holick, 685 S.W.2d at 20–21.
Clear and convincing evidence—a heightened evidentiary standard—must
support termination decisions. See Tex. Fam. Code Ann. § 161.001(b) (West Supp.
2018), E.N.C., 384 S.W.3d at 802. Due process demands this heightened standard
because “[a] parental rights termination proceeding encumbers a value ‘far more
precious than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455
U.S. at 758–59, 102 S. Ct. at 1397). 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.” Tex. Fam. Code Ann. § 101.007 (West
2014).
For a trial court to terminate a parent-child relationship, the Department must
prove that the parent’s actions satisfy one ground listed in family code section
161.001(b)(1) and that termination is in the best interest of the child under section
161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005). We are required to perform “an exacting review
of the entire record” in determining whether the evidence is factually sufficient to
support the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500
(Tex. 2014). 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. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
8
record, a factfinder could reasonably form a firm conviction or belief of the
challenged grounds for termination. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002).
Section 161.001(b)(1) finding
In his second issue, Father contends that the evidence is factually insufficient to
support the trial court’s finding under section 161.001(b)(1)(N) that he constructively
abandoned the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(N). The trial court,
however, made other section 161.001(b)(1) findings that Father does not challenge.
The court found that Father had knowingly placed or knowingly allowed the children
to remain in conditions that endangered their physical or emotional well-being and
that he had engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered their physical or emotional well-being. See id.
§ 161.001(b)(1)(D), (E).
As explained above, a trial court may terminate parental rights based on only
one section 161.001(b)(1) finding plus a best-interest finding under section
161.001(b)(2). See id. § 161.001(b); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Because Father does not challenge the trial court’s other section 161.001(b)(1)
findings, we need not address his argument that the evidence is factually insufficient
to support the trial court’s finding under section 161.001(b)(1)(N). See Tex. R. App. P.
47.1; In re D.G., No. 02-17-00355-CV, 2018 WL 1414726, at *3 (Tex. App.—Fort
Worth Mar. 22, 2018, no pet.) (mem. op.). We overrule Father’s second issue.
9
Best interest under section 161.001(b)(2)
In his third issue, Father contends that the evidence is factually insufficient to
prove that termination of his parental rights is in the children’s best interest. We
generally presume that keeping a child with a parent is in the child’s best interest. In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child
in a safe environment is also presumed to be in the child’s best interest. In re A.B., 412
S.W.3d 588, 601 (Tex. App.—Fort Worth 2013) (en banc op. on reh’g), aff’d, 437
S.W.3d 498 (Tex. 2014).
We review the entire record to determine the child’s best interest. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). Nonexclusive factors that the factfinder may use in
determining the best interest of the child include the desires of the child, the
emotional and physical needs of the child now and in the future, the emotional and
physical danger to the child now and in the future, the parental abilities of the
individuals seeking custody, the programs available to assist these individuals to
promote the best interest of the child, the plans for the child by these individuals or
by the agency seeking custody, the stability of the home or proposed placement, the
acts or omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one, and any excuse for the acts or omissions of the
parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at
249 (stating that in reviewing a best interest finding, “we consider, among other
evidence, the Holley factors”).
10
The evidence shows that Father has a history of committing crimes that include
assaults against Mother and Julie. The trial court could have reasonably found that his
violent criminal history and the periods of confinement that resulted from it reflected
that he would not be able to meet the children’s needs, that he would put the children
in danger, that he had poor parenting abilities, that his home would not be a stable
placement, and that his parental relationship with the children was not proper. See
Holley, 544 S.W.2d at 371–72; In re I.L., No. 02-18-00206-CV, 2018 WL 5668813, at *6
(Tex. App.—Fort Worth Nov. 1, 2018, no pet. h.) (mem. op.) (stating that a trial court
could have rationally based best-interest findings on parents’ criminal acts and their
history of engaging in domestic violence); In re J.B., No. 02-18-00034-CV, 2018 WL
3289612, at *7 (Tex. App.—Fort Worth July 5, 2018, no pet.) (mem. op.) (stating that
evidence of a parent’s criminal history is relevant to evaluate the parent’s parental
abilities and explaining that “[c]riminal history and incarceration adversely affect the
amount of contact between a parent and child and the parent’s ability to provide
financial and emotional support to the child”).
The trial court also received evidence that during the Department’s case, Father
did not regularly visit the children, did not behave appropriately during some of his
visits with them, did not financially support them, and did not complete services that
could have led to his reunification with them. From this evidence, the trial court could
have reasonably found that termination was in the children’s best interest. See I.L.,
11
2018 WL 5668813, at *6 (stating that parents’ failure to complete services and their
failure to consistently visit their child supported the trial court’s best-interest finding).
Next, the trial court learned that during the Department’s case, Father moved
away from the children to New Mexico and that he did not maintain consistent
contact with the Department, and the trial court could have rationally considered
these facts in forming its best-interest finding. See In re V.T.E., No. 10-17-00310-CV,
2018 WL 1097256, at *4 (Tex. App.—Waco Feb. 28, 2018, no pet.) (mem. op.).
Finally, the evidence showed that the children’s maternal aunt was meeting
their needs, that she desired to adopt them, and that Julie had agreed to stay there.
The trial court could have reasonably relied on this evidence to determine that the
children’s needs, both now and in the future, could be best met through terminating
Father’s parental rights instead of considering any alternatives to termination. See
Holley, 544 S.W.2d at 372; In re G.H., No. 02-17-00193-CV, 2017 WL 4683925, at *9
(Tex. App.—Fort Worth Oct. 19, 2017, no pet.) (mem. op.) (considering in a best-
interest review that foster parents were meeting a child’s needs and wanted to adopt
him).
For these reasons, we hold that the evidence is factually sufficient to show that
termination of Father’s parental rights is in the children’s best interest. See Tex. Fam.
Code Ann. § 161.001(b)(2); C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d at 371–72. We
overrule Father’s third issue.
12
Conclusion
Having overruled all of Father’s issues, we affirm the trial court’s judgment
terminating his parental rights to Julie and Joshua.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: December 6, 2018
13