in the Interest of L.E., Z.S.A.-F. AKA Z.A., and K.A., Children ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00317-CV
IN THE INTEREST OF L.E., Z.S.A.-F. AKA Z.A., AND K.A., CHILDREN
On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. B41701-1708; Honorable Kregg Hukill, Presiding
January 3, 2020
MEMORANDUM OPINION
Before PIRTLE, PARKER, and DOSS, JJ.
Appellant, the thirty-nine-year-old mother of eight-year-old L.E., six-year-old
Z.S.A.-F., and five-year-old K.A., appeals from the trial court’s order terminating her
parental rights to her three children.1 She challenges the trial court’s order through five
issues, three challenging the sufficiency of the evidence to support the trial court’s
findings under the predicate grounds, one challenging the sufficiency of the evidence to
1 To protect the privacy of the parties involved, we refer to the mother as “the mother” and to the
children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019); TEX. R. APP. P. 9.8(b).
The parental rights of the fathers of Z.S.A.-F and K.A. were also terminated in this proceeding. They have
not filed a notice of appeal. The hearing regarding the parental rights of L.E.’s father was continued to a
future date and his rights are not at issue in this appeal.
support the trial court’s finding that termination was in the children’s best interests, and
one arguing the trial court abused its discretion by refusing to extend the dismissal date
in this case. We affirm the order of the trial court.
BACKGROUND
In July 2017, the Texas Department of Family and Protective Services received a
report concerning domestic violence between the mother and her boyfriend. Both
admitted to long-term domestic violence and illicit drug use. At the time of the final
hearing, L.E. was placed in one foster home and Z.S.A.-F. and K.A. were placed together
in another.
After receiving the report, the Department filed pleadings including an original
petition for protection of a child, for conservatorship, and for termination in suit affecting
the parent-child relationship and obtained an order for protection of a child in an
emergency. A service plan that included tasks the mother was required to perform to
secure the return of her children to her care was also put in place. The mother completed
some of the services and a monitored return service plan was given to the mother in
January 2019. The monitored placement was disrupted when the mother tested positive
for cocaine about a month after the children were returned to her care. The mother denied
use but did not appear for a test in March 2019. A week later, the mother tested positive
for alcohol. The children were removed and the next day, the mother was arrested for an
alleged assault that took place in public while she was intoxicated. The Department
requested additional services for the mother, but the mother failed to attend the required
drug and alcohol assessment and only attended one counseling session.
2
A final hearing was held in August 2019, just days before the statutory deadline
was to expire.2 At the outset of the hearing, counsel for the mother asked the court for a
continuance to allow the mother to complete the SAFP program that was part of the
Department plan as well as the terms of the community supervision imposed by another
court. The trial court denied that request. At the final hearing, the Department presented
three witnesses to provide evidence to support its alleged grounds for termination of the
mother’s parental rights. Most significant of that evidence was evidence of the mother’s
drug and alcohol use.
After hearing the evidence presented and the arguments of counsel, the trial court
found clear and convincing evidence supported termination of the mother’s parental rights
to her three children under Family Code section 161.001(b)(1) (D), (E), and (O). See TEX.
FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2019). It also found clear and
convincing evidence to support a finding that termination was in the children’s best
interests. TEX. FAM. CODE ANN. § 161.001(b)(2).
ANALYSIS
APPLICABLE LAW
The Texas Family Code permits a court to terminate the parent-child relationship
if the Department establishes one or more acts or omissions enumerated under section
161.001(b)(1) and termination of that relationship is in the child’s best interest. See TEX.
FAM. CODE ANN. § 161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976). The burden of proof is by clear and convincing evidence. TEX. FAM. CODE
2 See TEX. FAM. CODE ANN. § 263.401 (West 2019) (providing for dismissal after one year and
requirements to obtain extension of time).
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ANN. § 161.206(a-1) (West Supp. 2019). “‘Clear and convincing evidence’ means the
measure or degree of proof that 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 2019).
Only one statutory ground is needed to support termination. In re K.C.B., 280
S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Notwithstanding this point,
the Texas Supreme Court has recently instructed appellate courts that due process
requires a heightened standard of review under section 161.001(b)(1)(D) or (E), even
when another ground for termination is sufficient, because of the potential collateral
consequences to an appellant’s parental rights concerning another child. See In re N.G.,
577 S.W.3d 230, 237 (Tex. 2019) (per curiam). The Court held that because section
161.001(b)(1)(M) provides for the termination of parental rights if there is clear and
convincing evidence that the parent has had his or her parental rights terminated with
respect to another child based on a finding that his or her conduct violated subsection (D)
or (E), an appellate court denies an appellant a “meaningful appeal and eliminates the
parent’s only chance for review of a finding that will be binding as to parental rights to
other children” if that court does not review a termination based upon either of those
subsections. Id. at 235 (citing In re S.K.A., 236 S.W.3d 875, 890 (Tex. App.—Texarkana
2007, pet. denied)).
Furthermore, in addition to a finding on the predicate grounds for termination, the
trial court must also find that termination is in the children’s best interests. Id. In reviewing
a termination proceeding, the standard for sufficiency of evidence is that discussed in In
re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). In reviewing a best interest finding,
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appellate courts consider, among other evidence, the factors set forth in Holley, 544
S.W.2d at 371-72.
Subsection (D) permits termination when clear and convincing evidence shows
that the parent knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child. See TEX.
FAM. CODE ANN. § 161.001(b)(1)(D). This subsection requires a showing that the
environment in which the child was placed posed a danger to the child’s physical or
emotional health, and it permits termination based on a single act or omission by the
parent. In re J.A.S., No. 07-12-00150-CV, 2012 Tex. App. LEXIS 8087, at *14 (Tex.
App.—Amarillo Sept. 25, 2012, no pet.) (mem. op.) (citing In re R.D., 955 S.W.2d 364,
367 (Tex. App.—San Antonio 1997, pet. denied)). Subsection (D) concerns the child’s
living environment, rather than the parent’s conduct, though parental conduct may
produce an endangering environment. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied). It is not necessary that the child’s living
environment directly threaten the child or that the child be injured. What is significant is
that the parent must be aware of the potential for danger to the child in such an
environment and must have disregarded that risk. In re S.M.L., 171 S.W.3d 472, 477
(Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug use and criminal activity
support a conclusion that the child’s surroundings endanger his or her physical or
emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). The relevant time frame under this subsection is prior to the child’s removal. In
re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied).
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Subsection (E) permits termination when clear and convincing evidence shows
that the parent has engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the child's physical or emotional well-being. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The relevant inquiry here 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. In re J.T.G.,
121 S.W.3d at 125. Termination under subsection (E) must be based on more than a
single act or omission. Id. A voluntary, deliberate, and conscious course of conduct by
a parent is required. Id. Thus, while both subsections (D) and (E) focus on
endangerment, they differ regarding the source and proof of endangerment. In re S.M.L.,
171 S.W.3d at 477. To support a finding of endangerment, the parent’s conduct does not
necessarily have to be directed at the child nor is the child required to suffer actual injury.
Texas Dep’t of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (reversing
appellate court’s holding that father's imprisonment did not endanger the emotional and
physical well-being of a child).
SUFFICIENCY OF EVIDENCE TO SUPPORT PREDICATE GROUNDS
Here, the mother testified at the final hearing, admitting to her drug and alcohol
use. She also admitted to instances of domestic violence and other issues with her
boyfriend. She admitted her boyfriend assaulted her by “backhand[ing] me in my mouth”
after the children were removed from her care a second time. She also told the court she
used drugs and alcohol during the pendency of the case as a way of grieving for her son
who died while in foster care. Domestic violence and drug use are circumstances a trial
court can consider as endangering a child under subsection (D) and (E). In re K.A.F., No.
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05-12-01582-CV, 2013 Tex. App. LEXIS 7350, at *33-34 (Tex. App.—Dallas June 14,
2013, no pet.) (mem. op.).
The mother further told the court she had been placed on community supervision
and that one of the terms of her supervision was her temporary confinement in a SAFP
facility. She acknowledged she would spend approximately six months in that program
and likely two to three additional months at a halfway house. Many courts have noted
that a parent’s ongoing drug use is conduct that subjects a child to a life of uncertainty
and instability, which endangers the physical and emotional well-being of the child. See
In re K.A.S., No. 07-12-00234-CV, 2012 Tex. App. LEXIS 8725, at *16-17 (Tex. App.—
Amarillo Oct. 18, 2012, no pet.) (mem. op.); In re A.B., 125 S.W.3d 769, 777 (Tex. App.—
Texarkana 2003, pet. denied) (“Drug use and its effect on a parent’s life and ability to
parent may establish an endangering course of conduct.”). “A parent’s continued drug
use demonstrates an inability to provide for the child’s emotional and physical needs and
to provide a stable environment for the child.” In re E.M., 494 S.W.3d 209, 222 (Tex.
App.—Waco 2015, pet. denied) (citing In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App.
LEXIS 234, at *4 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)). In this case,
the trial court could have been persuaded that the mother’s drug use and history of
domestic violence was sufficient to establish the predicate grounds set forth under
sections 161.001(b)(1)(D) and (E) of the Texas Family Code.
Additionally, the trial court could have seen the mother’s failure to complete
additional requirements of her service plan as part of the endangering conduct analysis
under subsection (E). In re X.S., No. 07-17-00422-CV, 2018 Tex. App. LEXIS, at *9-10
(Tex. App.—Amarillo April 18, 2018, no pet.) (mem. op.); Robinson v. Tex. Dep’t of
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Protective & Regulatory Servs., 89 S.W.3d 679, 686-87 (Tex. App.—Houston [1st Dist.]
2002, no pet.). A Department caseworker, Samantha Yancey, testified the children were
removed due to concerns over domestic violence and drug use by the mother and her
boyfriend. Yancey told the court that the mother’s oldest child unexpectedly passed away
during the pendency of the case. The Department offered to the mother grief counseling
to help her cope with the loss. After the mother had made sufficient progress, the children
were returned to her care under a monitored plan. As part of that plan, the mother was
subject to four continuing required services. She was required to comply with the terms
of her community supervision, to maintain employment, to maintain appropriate housing,
and to submit to random drug tests. The caseworker testified the mother tested positive
for cocaine on February 21, 2019. The mother failed to appear for subsequent tests;
however, she did appear for the tests on March 14. This time the laboratory also tested
the sample to ascertain the mother’s blood alcohol level.
Yancy testified that after the positive tests for cocaine and alcohol use and the
mother’s admission that she had used both, the Department added requirements to her
reunification plan. Those additional requirements included her submission to a new drug
and alcohol assessment, re-engagement in individual counseling, and following
recommendations from either of those services. Yancey told the court the mother missed
one appointment for the drug and alcohol assessment and failed to schedule another and
that she attended one individual counseling session after the children were removed from
her care under the monitored plan. From Yancey’s testimony, the trial court could have
found sufficient evidence to support a finding that the mother’s rights should be terminated
under section 161.001(b)(1)(D) and (E).
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The trial court also had before it the testimony of Sharon Hensley, a licensed
professional counselor who engaged in therapy with Z.F.A.-F. and K.A. She testified that
the boys told her their mother fought with other people. They told her about their
grandmother being mad at their mother and fighting and “bad words from everybody.
Uncle V. using the middle finger at Mom . . . .” After K.A. called his foster mother a
“motherf**king b*tch,” Hensley asked him where he heard those words. He responded
that his “mother yelled them at the police.” Hensley told the court that “the trauma [the
boys] described to me is damaging.” This again is evidence from which the trial court
could have found the mother engaged in endangering behavior or conduct or placed her
children in endangering circumstances.
Viewing the evidence before us as a whole under the requisite standards, we find
sufficient clear and convincing evidence to support the trial court’s finding that the mother
engaged in conduct or knowingly placed the children with persons who engaged in
conduct which endangered the physical or emotional well-being of her children.
Accordingly, we overrule the mother’s first three issues.
BEST INTEREST
In addition to the finding of at least one predicate ground for termination, the
Department was also required to prove by clear and convincing evidence that termination
of the mother’s rights was in her children’s best interests. TEX. FAM. CODE ANN. §
161.001(b)(2); In re K.M.L., 443 S.W.3d at 116. Only if no reasonable fact finder could
have formed a firm belief or conviction that termination of the mother’s parental rights was
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in the children’s best interests can we conclude the evidence is insufficient. Id. (citing In
re J.F.C., 96 S.W.3d at 266).
In our evaluation of a child’s best interest, there is a strong presumption that the
best interest of the child will be served by preserving the parent-child relationship. 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. See TEX. FAM.
CODE ANN. § 263.307(a) (West 2019). Section 263.307(b) provides a non-exhaustive list
of factors to consider in deciding best interest. Similarly, the Supreme Court has set out
other factors to consider when determining the best interest of a child. See Holley, 544
S.W.2d at 371-72. Those factors include (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 individual seeking
custody; (5) the programs available to assist the individual to promote the best interest of
the child; (6) the plans for the child by the individual 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. Importantly, the absence of
evidence about one or more of these considerations does not preclude a fact finder from
reasonably forming a strong conviction or belief that termination is in the child’s best
interest. In re C.H., 89 S.W.3d at 27; In re A.C., 394 S.W.3d 633, 642 (Tex. App.—
Houston [1st Dist.] 2012, no pet.).
Evidence that supports one or more statutory grounds for termination may also
constitute evidence illustrating that termination is in the child’s best interest. See In re
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C.H., 89 S.W.3d at 28. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013). The
best interest analysis may consider circumstantial evidence, subjective factors, and the
totality of the evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d 667, 677
(Tex. App.—Amarillo 2011, no pet.). Additionally, a child’s need for permanence through
the establishment of a “stable, permanent home” has been recognized as the paramount
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
Significant here is the mother’s continued drug use, even after the monitored return
of her children, and her reliance on alcohol. Furthermore, the volatile relationship with
her boyfriend led to an unstable environment for her children.
The witnesses testified the children were bonded to their mother, that she loves
the children, and they love her. While the children indicated they wanted to live with their
mother, Hensley told the court the children “just wanted out of foster care.” The mother
attended her visits with her children and the visits went well; however, according to
Hensley, K.A.’s behavior was better when he had breaks from seeing his mother. Out of
the three children, K.A.’s behavior was the most problematic. He had been expelled from
school as a result of behavioral issues. The counselor testified Z.S.A.-F. and K.A. were
participating in trauma therapy due to the domestic violence they had seen.
The caseworker, Yancey, testified to the effects of the mother’s visitation with the
children on K.A. She said K.A. showed agitation after the visits and would engage in
inappropriate behavior such as “smear[ing] feces on the bathroom walls . . . curs[ing] at
the faster [sic] mother . . . and damag[ing] property.” She also told the court that K.A.
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“physically attacked me after a visit and we had to call the police on one occurrence. He
also attacked the police officer at that time. And it takes several days for him to kind of
reel things back in and get back to a normalcy.” Yancey said these behaviors were worse
after the children were removed the second time.
At the time of the final hearing, the Department was working toward placement of
all three children with Z.S.A.-F.’s paternal grandmother. She lived in Colorado and the
Department was waiting on approval from that state. The grandmother was wiling to
adopt all three children, even though L.E. and K.A. were not her biological grandchildren.
The caseworker and counselor told the court the children appeared excited about the
possibility of going to live with the grandmother. The mother, however, expressed some
concern because she said her children did not want to move so far away. And, the mother
was worried that L.E. and K.A. would be treated differently because they were not
biologically related to Z.S.A.-F.’s grandmother.
As for the mother’s plans, the record showed she completed many of her services,
was employed, and had suitable housing for the children. All she requested was
additional time to complete SAFP.
Both the attorney ad litem for the children and the mother’s attorney told the court
they did not recommend termination of the mother’s parental rights. The trial court noted
the statutory time period was about to expire and told the mother that extending that time
for nine to eighteen months was not just merely bending the rule, but “bending it a whole
lot.” The court went on to say that extending the case for that period of time was not, in
its opinion, “what the legislature intended.”
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Despite some evidence to the contrary, viewing the evidence in the light most
favorable to the judgment for our legal-sufficiency analysis and all of the evidence equally
for our factual-sufficiency analysis, we are led to a conclusion that a reasonable fact finder
could have formed a firm belief or conviction that termination of the mother’s parental
rights was in the children’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2).
REFUSAL OF COURT TO EXTEND DISMISSAL DATE
At the final hearing, counsel for the mother repeated the mother’s request that the
court extend the dismissal date for the case under section 263.401 of the Family Code.
TEX. FAM. CODE ANN. § 263.401. As grounds for that request, counsel reminded the court
that the mother had complied with her service plan, resulting in the return of her children
to her care. While the children were later removed when the mother relapsed, counsel
noted that she continued to participate in the court-ordered services in her reunification
plan. At the time of the final hearing, the mother was awaiting transport to a drug
treatment facility, something required by both her community supervison order and her
reunification plan. Counsel requested extension of the dismissal date to permit the
mother to complete her treatment.
This court reviews the trial court’s grant or denial of a motion pursuant to section
263.401 under an abuse of discretion standard. In re D.S., 455 S.W.3d 750, 751 (Tex.
App.—Amarillo 2015, no pet.); In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth
2012, pet. denied) (en banc). Under an abuse of discretion standard, an appellate court
may reverse the trial court’s ruling only if the trial court acted without reference to any
guiding rules and principles, such that its ruling is arbitrary and unreasonable. In re E.F.,
No. 07-18-00281-CV, 2018 Tex. App. LEXIS 8389, at *2 (Tex. App.—Amarillo Oct. 15,
13
2018, pet. denied) (mem. op.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985), 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986)).
Pursuant to section 263.401, a trial court must dismiss a suit brought by the
Department if trial has not commenced by the mandatory dismissal date unless an
extension has been granted under section 263.401(b). TEX. FAM. CODE ANN. § 263. 401.
The trial court is permitted to extend the dismissal deadline if the movant shows
“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.” In re E.F., 2018
Tex. App. LEXIS 8389, at *3 (citing TEX. FAM. CODE. ANN. § 263.401(b)). “The focus is on
the needs of the child, whether extraordinary circumstances necessitate the child
remaining in the temporary custody of the Department, and whether continuing such is in
the best interest of the child.” Id. (citing In re A.J.M., 375 S.W.3d at 604). Actions that
are “‘considered to be the parent’s fault’ will generally not constitute an extraordinary
circumstance.” Id. (citing In re O.R.F., 417 S.W.3d at 42). While a trial court has
discretion to grant an extension, the language in section 263.401 “prefers finality to suit.”
In re A.J.M., 375 S.W.3d at 605.
The record before us shows the trial court extended the dismissal date three times.
The first was on July 27, 2018, when it entered an order to retain the case pursuant to
section 263.401(b) of the Family Code. See TEX. FAM. CODE ANN. § 263.401(b). The
second was when it entered an order for a monitored placement of the children with the
mother pursuant to section 263.403(a) and (b) of the Family Code on January 25, 2019.
See TEX. FAM. CODE ANN. § 263.403(a), (b). The third occurred on March 5, 2019, when
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the trial court entered an order to return the children to foster care.3 See TEX. FAM. CODE
ANN. § 263.403(c).
Consequently, this case remained pending on the trial court’s docket for over two
years. During that time, the children were placed in foster care, returned to their mother’s
care, then re-removed after she again used cocaine and alcohol. By the time of the final
hearing, the mother had been arrested for assault and, as part of her court-ordered
community supervision, she was required to attend SAFP. The time during which she
would be in the program, followed by the time required for her to be in a halfway house,
and the time after her release that would be required for her to participate in services to
secure the return of her children, is significant. The mother’s request that the trial court
grant an extension of time under section 263.401 for an indeterminate period of time was
a request that the court extend the time for disposition well beyond what the Legislature
seemingly intended when it implemented those timelines. Furthermore, section 263.402
specifically precludes parties from extending deadlines by agreement. In re Dep’t of
Family & Protective Servs., 273 S.W.3d 637, 643 (2009) (citing TEX. FAM. CODE ANN. §
263.402). As such, the mother did not present any persuasive evidence that such an
indeterminate delay was in the best interests of her children. See, e.g., In re J.S.S., No.
10-19-00102-CV, 2019 Tex. App. LEXIS 8585, at *10 (Tex. App.—Waco Sept. 18, 2019,
no pet.) (mem. op.) (citing In re E.F., 2018 Tex. App. LEXIS 8389, at *4-5; In re L.T., No.
02-10-00094-CV, 2011 Tex. App. LEXIS 1313 (Tex. App.—Fort Worth Feb. 17, 2011, no
pet.) (mem. op.)).
3 The trial court signed a Nunc Pro Tunc Order Returning Children to Care on April 2, 2019, to
correct the omission in the March 2019 order of the new dismissal date and subsequent hearing dates.
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We find the trial court did not abuse its discretion in denying the mother’s request
for an additional extension under section 263.401 and overrule the mother’s final issue.
CONCLUSION
Having resolved each of the mother’s issues against her, we affirm the order of the
trial court.
Patrick A. Pirtle
Justice
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