in the Interest of P.R., a Child ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00062-CV
IN THE INTEREST OF P.R., A CHILD
From the 82nd District Court
Robertson County, Texas
Trial Court No. 20-02-20969-CV
MEMORANDUM OPINION
Phillip appeals from a judgment that terminated his parental rights to his child,
P.R. TEX. FAM. CODE ANN. §161.001. Phillip complains that the trial court erred by not
making a finding that there were extraordinary circumstances to extend the jurisdiction
of the court pursuant to Section 263.401(b) and therefore, the judgment is void, and, in
the alternative, that the evidence was legally and factually insufficient for the trial court
to have found that he committed the predicate acts in Section 161.001(b)(1)(D)
(endangering conditions) and (E) (endangering conduct) upon which the termination
was based. Because we find no reversible error, we affirm the judgment of the trial court.
SECTION 263.401(b) EXTENSION
In his first issue, Phillip argues that the judgment terminating his parental rights
was void because it was signed after the trial court lost jurisdiction over the proceedings
due to the failure to make the finding of extraordinary circumstances necessary to extend
the trial court's jurisdiction pursuant to Section 263.401(b) of the Family Code.
This proceeding was initially set for trial on January 29, 2021, with a dismissal date
of February 15, 2021. The parties appeared at the scheduled time, but a motion for
extension was heard. In a written setting notice sent a few days after the scheduled trial
date, the case was reset for a trial on April 28, 2021. There is no question that this reset
notice was sent before the original dismissal date.
There was a hearing conducted on the record on January 29, 2021, during which
the department's motion for extension was discussed. However, the reporter's record of
the hearing was unable to be transcribed due to technological problems with the court
reporter's equipment. The electronic file of the reporter's notes was corrupted and could
not be recovered or transcribed.
This Court abated this proceeding for the trial court to conduct a hearing pursuant
to Rule 34.8(f) of the Rules of Appellate Procedure. At the abatement hearing, the trial
court made findings as to the lost or destroyed record of the January 29, 2021 hearing. At
the abatement hearing, the parties discussed their recollection of the January hearing and
attempted to make an agreement as to what had occurred. The parties, including trial
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counsel for Phillip and the trial judge, agreed that extraordinary circumstances existed
that led to the trial court granting the extension, but the parties could not recall whether
or not the trial court expressly made a finding on the record at the January hearing that
extraordinary circumstances existed. The trial court made a finding after the hearing that
he did not expressly state on the record during the January hearing that extraordinary
circumstances existed but that such a finding was implied.
Family Code Section 263.401(a) provides that if a trial court fails to commence the
trial on the merits or grant an extension within one year after the trial court appointed
the department as the temporary managing conservator of a child, the trial court's
jurisdiction terminates, and the case is automatically dismissed. TEX. FAM. CODE ANN. §
263.401(a). However, the court's jurisdiction may be extended as set forth in Section
263.401(b) which provides:
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). If the court retains the suit on the court's docket, the court
shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically
dismissed if the trial on the merits has not commenced, which date
must be not later than the 180th day after the time described by
Subsection (a);
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(2) makes further temporary orders for the safety and welfare of the
child as necessary to avoid further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later than the date specified
under Subdivision (1).
TEX. FAM. CODE ANN. § 263.401(b).
Phillip argues that because the record of the hearing was lost, and the trial court
found that he did not make an express finding of extraordinary circumstances on the
record that the trial court did not properly extend the case and the court lost jurisdiction,
rendering the judgment of termination void. We disagree.
The Texas Supreme Court has addressed a somewhat similar issue in In re G.X.H.,
627 S.W.3d 288 (Tex. 2021). See In re G.X.H., 627 S.W.3d 288 (Tex. 2021). In that
proceeding, there was not a record made of the hearing, unlike this proceeding where the
record was lost. However, the Court held in relevant part:
[W]hile 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
263.401(b) are not. Accordingly, with the exception of a trial court's failure
to extend the automatic dismissal date before it passes, complaints
regarding the trial court's compliance with the requirements in subsection
(b) must be preserved for appellate review. Because the parents failed to
preserve them in this case, we hold their complaints regarding the timing
and form of the order resetting the trial and dismissal dates are waived. See
TEX. R. APP. P. 33.1.
In re G.X.H., 627 S.W.3d at 301.
In the hearing regarding the lost record, the parties and the trial court agreed that
the trial court rendered an order on the record extending the trial court's jurisdiction,
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based in part on the parties' agreement that extraordinary circumstances existed at that
time that warranted the extension. If the trial court is required to expressly make the
finding that extraordinary circumstances existed either on the record or in writing and
failed to do so, this was a failure pursuant to Section 263.401(b) which had to be preserved
for appellate review by objection or other complaint to the trial court. Phillip does not
contend that he objected to the trial court's failure at the January extension hearing, at the
temporary orders hearing that took place immediately after the extension hearing during
which it was agreed that there was testimony presented regarding what the
extraordinary circumstances were that led to the revocation of the mother's visitation, or
at any time thereafter. Rather, Phillip's trial counsel conceded that he did not object to
the extension because he agreed that there were extraordinary circumstances
necessitating an extension and those circumstances were discussed with the trial court.
We find that the trial court's extension of the court's jurisdiction pursuant to
Section 263.401(b) was made timely for the trial court to extend its jurisdiction over the
proceedings, and any complaint regarding the failure of the trial court to make an express
finding of extraordinary circumstances was not preserved for appellate review. 1 We
overrule issue one.
1Phillip seeks a dismissal of the proceedings based on the lost record and the lack of an agreement that an
express finding of extraordinary circumstances was made. However, we note that pursuant to Rule of
Appellate Procedure 38.4(f), at most Phillip would be entitled to a new trial including the extension issue
rather than dismissal. See TEX. R. APP. P. 34.8(f).
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PREDICATE ACTS
In his second issue, Phillip complains that the evidence was legally and factually
insufficient for the trial court to have found that he knowingly placed or allowed P.R. to
remain in surroundings which endangered her physical or emotional well-being. See TEX.
FAM. CODE ANN. §161.001(b)(1)(D). In his third issue, Phillip complains that the evidence
was legally and factually insufficient for the trial court to have found that he engaged in
conduct or knowingly placed P.R. with persons who engaged in conduct which
endangered her physical or emotional well-being. See TEX. FAM. CODE ANN.
§161.001(b)(1)(E). He does not challenge the sufficiency of the evidence as to the trial
court's finding of best interest.
STANDARD OF REVIEW
The standards of review for legal and factual sufficiency in cases involving the
termination of parental rights are well established and will not be repeated here. See In
re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25
(Tex. 2002) (factual sufficiency); see also In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).
Sufficient evidence of only one ground and best interest is necessary to affirm a
termination judgment. In re N.G., 577 S.W.3d 230, 232-33 (Tex. 2019). Thus, if the
evidence is sufficient to find one predicate ground, it is not necessary to address any other
predicate ground. Id.In the Interest of P.R., a Child Page 6
SECTION 161.001(b)(1)(E)
In his third issue, Phillip complains that the evidence was legally and factually
insufficient pursuant to Section 161.001(b)(1)(E). Section 161.001(b)(1)(E) allows
termination of parental rights if the trial court finds by clear and convincing evidence that
the parent "engaged in conduct or knowingly placed the child with persons who engaged
in conduct which endangers the physical or emotional well-being of the child." TEX. FAM.
CODE ANN. § 161.001(b)(1)(E). "Endanger" means "to expose a child to loss or injury, or
to jeopardize a child's emotional or mental health." In re M.C., 917 S.W.2d 268, 269 (Tex.
1996) (per curiam). An endangerment finding often involves physical endangerment, but
it is not necessary to show that the parent's conduct was directed at the child or that the
child suffered actual injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). "Rather, the specific danger to the child's well-being may be inferred from a
parent's misconduct alone." Id.In our endangerment analysis pursuant to Section 161.001(b)(1)(E), we may
consider conduct both before and after the Department removed the children from a
parent. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Evidence of drug use may constitute evidence of endangerment. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009).
Although, standing alone, evidence of incarceration is insufficient to support an
endangering-conduct finding, it can be properly considered on the issue of endangering
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conduct and is relevant to prove a parent's overall instability. See In re J.F.-G., 627 S.W.3d
304, 312-15 (Tex. 2021) (reaffirming that a parent's criminal history and imprisonment are
factors when considering endangering conduct although the mere fact of a conviction or
sentence of incarceration, standing alone, will not support termination under Subsection
(E)). Further, a parent's criminal conduct which leads to incarceration is relevant to the
question of whether he engaged in an endangering course of conduct. See In re S.R., 452
S.W.3d at 360-61. This is because routinely subjecting a child to the probability that the
child will be left alone because a parent is in jail endangers the child's physical and
emotional well-being. See In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no
pet.). "As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child." In re R.W., 129
S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
Phillip argues that the evidence was legally and factually insufficient for the trial
court to have found that he engaged in conduct or knowingly placed P.R. with persons
who engaged in conduct which endangered P.R. Phillip contends that he did not
knowingly place P.R. with persons who engaged in endangering conduct because he was
imprisoned at the time of the removal and testified that he was unaware of the mother's
drug use, which led to all four of her children testing positive for drugs at the time of
P.R.'s removal, or that there was domestic violence with the mother's current paramour.
As to his own actions, Phillip argues that although there was some evidence of an
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inappropriate video from when P.R. was younger 2 and evidence of his drug use and
incarceration, that evidence was not sufficient to establish that he engaged in conduct
which endangered P.R.
P.R. was born in the summer of 2016. Phillip was involved with P.R. to at least
some extent and child support was established in 2016. He was incarcerated for assault
on a public servant and was imprisoned for that offense when P.R. was removed from
her mother after her sibling was harmed, and P.R. and her three siblings all tested positive
for drugs in hair tests in February of 2020. The mother's boyfriend was accused of sexual
assault on his own child. Phillip contended that he did not know of the drug use or the
boyfriend's charges until a hearing in 2021.
Phillip was convicted of possession of a controlled substance in 2013 and placed
on community supervision. He admitted that when he committed the offense of assault
on a public servant, which occurred after P.R.'s birth, he was struggling with his addiction
which was severe at that time. He was sentenced to prison for four years but was paroled
in early 2021. He was arrested at the end of July of 2021 for resisting arrest and public
2 Phillip argues that although the trial court took judicial notice of all of the contents of its file after the
department requested the trial court to take judicial notice of the entire file, including any exhibits that had
been previously admitted, it was not allowed to consider the video that had been admitted as an exhibit in
a prior hearing and cites to this Court's opinion in Davis v. State, 293 S.W.3d 794 (Tex. App.—Waco 2009,
no pet.) as support of his proposition. However, Phillip's counsel specifically stated, "No objection" on both
occasions when the trial court asked the parties if they had any objections. The trial court specifically stated
the second time it was asked to take judicial notice of the file and its contents and exhibits that it was taking
judicial notice of the video in question and Phillip did not object. It was clear by the references to the
substance of the video that the parties knew that the trial court was taking judicial notice of the substance
of the video. Because Phillip did not object to the trial court's taking judicial notice of the file, including the
exhibits, Phillip has waived any complaint regarding judicial notice. See TEX. R. APP. P. 33.1(a).
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intoxication. In early August of 2021, he was arrested again for unlawful possession of a
firearm by a felon and deadly conduct for discharging the firearm. At the time of trial in
December of 2021, he was still incarcerated on those charges but also had a blue warrant
for violating his parole. Phillip acknowledged that he was unable to provide P.R. with a
safe and suitable home at the time of the trial in December of 2021 due to his incarceration.
The video in question depicted Phillip holding P.R. as a baby. Phillip held a naked
Barbie doll's genital area with its legs spread over P.R.'s mouth where she licked it for a
few seconds. He moved the doll and bent it into another position, and again placed the
Barbie doll's genital area over P.R.'s mouth. P.R.'s mother was making the video and both
she and Phillip were laughing in the video.
Viewing the evidence with the appropriate standards, we find that the evidence
was legally and factually sufficient for the trial court to have found by clear and
convincing evidence that Phillip engaged in conduct which endangered P.R.'s physical
and emotional well-being pursuant to Section 161.001(b)(1)(E). This is not a case
involving "mere imprisonment" as Phillip alleges, which had no impact on P.R. Instead,
Phillip's ongoing, severe drug use and addiction led to his incarceration after P.R.'s birth.
Phillip's subsequent imprisonment made it impossible for him to ensure P.R.'s safety,
which was clearly jeopardized by her mother's drug use and choice of boyfriends. Then,
during the pendency of the proceedings when he should have been working to create a
safe home for P.R., he was arrested twice for committing new, serious criminal offenses
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that could lead to extended time in prison in addition to the revocation of his parole. The
video was clearly sexual in nature and highly inappropriate conduct to engage in with a
young child. We overrule issue three.
Because we found the evidence sufficient pursuant to Section 161.001(b)(1)(E), we
do not need to address Phillip's second issue pursuant to Section 161.001(b)(1)(D). 3
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 24, 2022
[CV06]
3 Phillip complains of the sufficiency of the evidence pursuant to Section 161.001(b)(1)(D) in his second
issue and asks this Court to delete that finding even if the judgment is affirmed pursuant to Section
161.001(b)(1)(E). We are required to address challenges to the sufficiency of the evidence pursuant to
Section 161.001(b)(1)(D) or (E) when raised due to the potential for collateral consequences in a future
termination of parental rights. See In re N.G., 577 S.W.3d 230, 235-36 (Tex. 2019). However, we have
previously determined that it is only necessary to address one of the two grounds in our review because
Section 161.001(b)(1)(M), which allows for termination of parental rights based on a prior termination
pursuant to Section 161.001(b)(1)(D) or (E), only requires a finding as to one provision, not both of them.
TEX. FAM. CODE ANN. § 161.001(b)(1)(M); see, e.g., In re H.H., No. 10-21-00040-CV, 2021 Tex. App. LEXIS
4225 *1, n.1, 2021 WL 2252707 (Tex. App.—Waco May 27, 2021 pet. denied) (mem. op.); see also TEX. R. APP.
P. 47.1, 47.4.
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