In re O.H.

1

IN THE INTEREST OF O.H., A CHILD

No. 14-22-00377-CV

Court of Appeals of Texas, Fourteenth District

November 15, 2022

On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2021-00604J

Panel consists of Justices Spain, Poissant, and Wilson.

MEMORANDUM OPINION

Margaret "Meg" Poissant Justice

Appellant A.E.M. ("Mother") appeals the trial court's final order terminating her parental rights to her child O.H. In three issues we have reorganized, Mother argues that (1) the evidence is legally and factually insufficient to support a finding that she failed to comply with the provisions of a court order to obtain the return of O.H.; (2) the evidence is legally and factually insufficient to support a finding that termination of Mother's parental rights is in the best interest of O.H.; and (3) the trial court abused its discretion by not granting Mother's motion for continuance. We affirm.

I. Background

On April 19, 2021, the Department of Family and Protective Services ("the Department") filed its original petition seeking the conservatorship of O.H. and the termination of Mother's parental rights to O.H.^[1] The Department alleged Mother's parental rights should be terminated because Mother: (1) knowingly placed or knowingly allowed O.H. to remain in conditions that endangered the physical and emotional well-being of O.H.; (2) engaged in conduct or knowingly placed O.H. with persons who engaged in conduct which endangered the physical or emotional well-being of O.H.; (3) constructively abandoned O.H., who had been in the permanent or temporary managing conservatorship of the Department for at least six months, and although the Department made reasonable efforts to return O.H. to Mother, Mother did not regularly visit or maintain significant contact with O.H. and demonstrated an inability to provide O.H. with a safe environment; and (4) failed to comply with the provisions of a court order that established the actions needed to obtain the return of O.H., who had been in the permanent or temporary managing conservatorship of the Department for at least nine months as a result of O.H.'s removal under Family Code Chapter 262 for abuse or neglect of a child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O).

The final hearing on the Department's petition began on March 30, 2022. The trial court heard testimony from Shamaila Khan, the Department's supervisor for this case; Jessica Dunlap, the child advocate assigned to the case; and Sandra Hall, the paternal grandmother.

A. Khan

Khan testified that O.H. was taken into the Department's care when O.H. was five months old.^[2] At that time, O.H. was found inside a motel room, in his car seat, one hour after Mother was found unconscious in the motel's parking lot due to a drug overdose. O.H. was placed with Hall in August 2021. In May of 2021, the Department created a family service plan ("FSP"). The FSP required Mother to sign a release of information, obtain stable housing and employment, participate in drug testing, complete a substance abuse assessment and follow recommendations, complete a psychological assessment and follow recommendations, avoid criminal activity, complete a psychiatric evaluation and follow recommendations, and complete parenting classes. Khan testified that Mother "did not sign the family service plan, but she was provided the family service plan a few times."

Khan testified that Mother "has engaged in assessments, but she has failed to follow through with the recommendations having been discharged a few times from the service providers." Khan explained Mother was discharged because "she was a no-show no-call to most of her appointments." Additionally, Khan testified that Mother did not complete the parenting classes, did not provide any proof of stable housing or employment, and did not sign the release of information until the Friday before trial began. Mother was diagnosed with alcohol use disorder, moderate dependence, cocaine dependence abuse, and bipolar affective manic disorder. Mother did not follow the recommendations that she complete individual counseling once a week, attend anger management for fourteen weeks, complete a parenting skills program, and participate in random drug testing.^[3] Mother submitted to drug tests on June 15, 2021, testing positive for cocaine; on July 16, 2021, testing positive for ethyl glucuronide and ethyl sulfate; August 2021, testing positive for ethyl glucuronide and ethyl sulfate; October 15, 2021, testing positive for cocaine; and February 11 or February 20, testing positive for cocaine, benzoylecgonine, heroin, and opiates.^[4]

Khan testified that Mother avoided criminal activity and that Mother notified Khan that she was employed, but Mother failed to provide any proof of employment. Further, Mother contacted Khan throughout the duration of the case regarding her desire to visit O.H.

Khan testified that Mother has not visited O.H. since O.H. was in the Department's care, has not provided any financial assistance, and has not provided any food or clothing for O.H.

Khan testified O.H. was currently placed with Hall; that the placement was meeting all of O.H.'s physical and emotional needs; that O.H.'s three brothers also lived with Hall; and that O.H. is bonded with Hall, Hall's husband, Hall's daughter, and O.H.'s brothers. Khan testified that the Department was requesting that Mother's parental rights be terminated and that Hall wishes to adopt O.H. As a result of the placement with Hall, O.H. was current on doctor and dental visits. Khan stated that Hall's home was safe, stable, and is a nurturing environment, and that Hall provided appropriate play and educational services. Hall's husband owns his own business and Hall is a stay-at-home parent. Hall has a daughter that lives in the home and works for Texas Children's Hospital.

B. Dunlap

Dunlap testified that O.H. does very well when she visits him in Hall's home, that the visits "have gone very well," that O.H. is "a very happy, happy child" and is "thriving" in the current placement, that she has no concerns about the placement with Hall, that it is a protective environment, that Hall can provide financially for O.H. and for O.H.'s physical and emotional needs, and that Hall has done a "phenomenal job with" O.H. O.H. does not have any special needs, is current on all medical appointments, and is developmentally on target. Dunlap testified that O.H. has never bonded with Mother. Dunlap requested the termination of Mother's parental rights and the adoption of O.H. by Hall.

C. Hall

Hall is sixty-one years old. She testified O.H. is doing well, is developmentally on target, is currently placed with his three brothers, and does not have any special needs. Hall's daughter sold her house and moved in with Hall to help and is "very much so" bonded with O.H. Hall testified that she and her husband can financially provide for O.H. and are willing to adopt him. Hall believes it was in O.H.'s best interest to terminate Mother's parental rights. Hall explained that her plan for O.H. was that he be healthy and "go out in society and do what he needs to do to be a good citizen and make sure that he can provide for himself when he gets older and take care [sic] of himself . . . ."

D. Trial Court's Ruling

On May 3, 2022, the trial court signed a final order terminating Mother's parental rights to O.H, finding that Mother failed to comply with the provisions of a court order that established the actions needed for the return of O.H., and that termination of Mother's parental rights was in the O.H.'s best interest.^[5] This appeal followed.

II. Section 161.001(b)(1)(O)

In her first issue, Mother argues there was legally and factually insufficient evidence to support the trial court's finding that termination was proper pursuant to predicate ground (O).

A. Applicable Law & Standard of Review

Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex 1985); see Stantosky v Kramer, 455 U.S. 745, 753 (1982) "Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases" In re KML, 443 S.W.3d 101, 121 (Tex 2014) (Lehrmann, J, concurring). Accordingly, termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due process requires application of the "clear and convincing" standard of proof. Id. (citing Stantosky, 455 U.S. at 769; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)).

This intermediate standard falls between the preponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). "'Clear and convincing evidence' means a '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.'" In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting Tex. Fam. Code Ann. § 101.007); see In re K.M.L., 443 S.W.3d at 112-13 ("In cases requiring clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true.").

The trial court may order the termination of the parent-child relationship if the court finds by clear and convincing evidence that: (1) the parent committed an act or omission described by Family Code § 161.001(b)(1...