In re Interest of A.B.

IN THE INTEREST OF A.B., A CHILD

No. 06-20-00073-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: February 11, 2021

April 1, 2021

On Appeal from the County Court at Law Bowie County, Texas

Trial Court No. 18C0519-CCL

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

In a suit affecting the parent-child relationship brought by the Department of Family and Protective Services (the Department), the County Court at Law of Bowie County entered an order terminating Mother's parental rights to A.B. pursuant to Section 161.001, subsections (b)(1)(D), (E), and (O), of the Texas Family Code, finding that termination was in the child's best interests and naming the Department as the child's permanent managing conservator.¹

On appeal, Mother argues that the evidence was legally and factually insufficient to support termination under subsections (D), (E) and (O), that evidence was legally and factually insufficient to show that termination was in the child's best interests, and that the trial court erred in denying her motion to extend the dismissal deadline.

We affirm the trial court's order because the evidence was legally and factually sufficient to show that termination of Mother's parental rights was justified under subsections (D) and (E), that termination was in the child's best interests, and that the trial court did not err in denying Mother's motion to extend the dismissal deadline.

I. Factual and Procedural Background

Mother is the biological mother of A.B. and Addy. While Addy was the subject of a previous and related action by the Department and was initially part of this case, she was not a part of the trial court's order terminating Mother's parental rights in this case and is not the subject of the order being appealed. A.B., the child at issue in this case, was born in 2005.

On April 26, 2018, the Department filed a petition for the protection of a child, for conservatorship, and for termination of Mother's parental rights. Judy Townsend, a special investigative supervisor for the Department, got involved in the case because Mother had reported that A.B. and Addy "had been in a situation where there were drugs and aggravated sexual assault on [A.B.]." Townsend testified that, while Mother was in jail in Arkansas, she had left her children with her mother (Grandmother), who in turn often left the children with John Littleton, the man accused of assaulting A.B.

Although Mother confirmed that Grandmother had custody of the children,² she claimed to have left them with her brother (Brother) while she was in prison. When she got out of jail, she learned that Brother had left the children with Grandmother. Mother admitted that she had been trafficked to Littleton by Grandmother when she was younger. The Department was aware that Grandmother and Littleton "were sex trafficking kids and also running drugs." Mother acknowledged that she had knowingly placed the children in dangerous circumstances.

A final hearing in the case was held on December 6, 2018. The trial court named a family friend of Mother's—whom we refer to as Neighbor—as permanent managing conservator of the children. The trial court also named Mother as possessory conservator, and the Department closed its case. Townsend testified that the Department soon learned that Neighbor had allowed the children to return to Mother's house and live with her. Neither Mother nor Neighbor informed the Department of the change. Also, as part of the Department'sinvestigation, the Department required Mother to take a drug test, and she tested positive for methamphetamine.

Based on Mother's failed drug test and continuing concerns that she was exposing her children to the risk of sex trafficking, the Department removed the children from the care of Mother and Neighbor. The Department then filed an amended petition seeking to consolidate the action with the previous action involving A.B. and to terminate Mother's parental rights. The final termination hearing on the amended petition was held on September 17, 2020. The witnesses at that hearing included the Department workers Judie Townsend and Jasmine Turner, Mother, and Joey Elliott, the advocate coordinator for Bowie County Court Appointed Special Advocates (CASA).

Turner testified that Mother failed to complete any of her court-ordered services, that she failed to appear for four out of her five psychological evaluation appointments, and that, while she had completed her psychological evaluation a week before the hearing, the results were still pending at the time of trial. Turner also testified that Mother was in and out of jail during the case, as the evidence showed that Mother was in two different jails from April 2020, through early July 2020. At the time of trial, Mother faced several charges in Cass County, including endangering A.B. and interfering with child custody, harboring a runaway in Bowie County, and aggravated robbery in Arkansas. Turner also testified that several of Mother's drug tests were positive for illegal drugs and that she failed to appear for drug testing from October 2019 through March 2020.

Mother testified that, since she was released from jail in July 2020, she had completed a drug assessment, a psychological evaluation, and about half of the required parenting classes. Mother also claimed that she had remained drug free "recently" and had not used drugs since being released from jail in July 2020.

At the conclusion of the hearing, the County Court at Law of Bowie County entered an order terminating Mother's parent's rights to A.B. pursuant to Section 161.001, subsections (b)(1)(D), (E), and (O), of the Texas Family Code, finding that termination was in the child's best interests, and naming the Department as the child's permanent managing conservator. Mother appealed from the trial court's order.

II. Standard of Review

"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). "Indeed, parents have a fundamental right to make decisions concerning 'the care, custody, and control of their children.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. (quoting A.B., 437 S.W.3d at 500). "[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. (quotingIn re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20)).

"In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." Id. (citing TEX. FAM. CODE ANN. § 161.001; In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). "'Clear and convincing evidence' is that '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.'" Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). "This standard of proof necessarily affects our review of the evidence." Id.

"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing J.P.B., 180 S.W.3d at 573).

"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M., 209S.W.3d 105, 109 (Tex. 2006) (per curiam)). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine 'whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations.'" Id. (quoting In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)))). "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, then the evidence is factually insufficient." Id. (quoting J.F.C., 96 S.W.3d at 266). In making this determination, we must undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting C.H., 89 S.W.3d at 26)).

"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, 'the rights of natural parents are not absolute; protection of the child is paramount.'" Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))) (citing In re...