In re Interest of C.G.

IN THE INTEREST OF C.G., C.G., AND C.G., CHILDREN

No. 02-20-00087-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

August 6, 2020

On Appeal from the 323rd District Court Tarrant County, Texas

Trial Court No. 323-110024-19

Before Kerr, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

After a bench trial, the trial court terminated Father's and Mother's parental rights to their three children David, Edward, and Felicia.¹ Both Father and Mother have appealed.

Father's Issues²

Father raises two issues:

(1) There was insufficient evidence to support the trial court's finding that terminating Father's parental rights was in the children's best interest.

(2) The court committed harmful error by admitting into evidence two drug-test reports, specifically,

• Exhibit 5 (December 2019 report showing that Father's urine sample tested outside the temperature range, Father left without providing another sample, and he had no hair for a hair sample) and

• Exhibit 13 (February 2019 report showing that Father's urine sample tested positive for marijuana and his hair sample tested positive for cocaine and marijuana).

Mother's Issues

Mother raises four issues:

(1) The trial court abused its discretion by denying her motion for continuance and to extend the dismissal date.

(2) Factually insufficient evidence supports the trial court's Section 161.001(b)(1)(O) finding.

(3) The trial court abused its discretion by admitting two drug-test reports, specifically,

• Exhibit 4 (December 2019 report showing that Mother tested positive for cocaine) and

• Exhibit 5 (Father's December 2019 report).

(4) Factually insufficient evidence supports the trial court's finding that terminating Mother's parental rights to her children was in her children's best interest.

We will discuss these issues out of order and combine Father's and Mother's issues where appropriate.

Holdings

We hold that (1) the trial court did not abuse its discretion by denying Mother's motion to continue the trial or to extend the dismissal date; (2) the admission of the drug-test reports, even if an abuse of discretion, was harmless because the same evidence came in elsewhere without objection; (3) because the trial court terminated Mother's parental rights on three grounds (Sections 161.001(b)(1)(D), (E), and (O)) and because Mother has attacked only one of those three grounds (Section 161.001(b)(1)(O)), we can affirm the trial court's judgment on those grounds that Mother does not contest and deny Mother's attack on Section 161.001(b)(1)(O) as moot; and (4) the evidence both legally and factually sufficed to support the trialcourt's findings that terminating Father's and Mother's parental rights was in their children's best interest. We thus overrule Father's and Mother's issues and affirm the trial court's judgment.

I.

The trial court did not abuse its discretion by denying Mother's motion for

continuance or to extend the dismissal deadline.

In Mother's first issue, she argues that the trial court abused its discretion by denying her motion for continuance and to extend the dismissal date. Our first concern is the scope of her issue.

Mother filed her "Motion for Continuance and Extension of Dismissal Date" on January 2, 2020. At that time, the case was set for trial January 7. The case did not go to trial on January 7 but went to trial instead on February 11, and on that date, the trial court indicated on three occasions that the only motion before it was Mother's motion to extend the dismissal date. The trial court even referred to it as Mother's January 7 motion, but there was no January 7 motion.

From this, we conclude that on January 7, the trial court granted Mother a trial continuance (from January 7 to February 11) but reserved ruling on her motion to extend the dismissal date.³ But because granting Mother a dismissal-date extension on February 11 without granting Mother a corresponding trial extension would not have benefited Mother at all, why Mother would pursue and why the trial court wouldentertain only a motion to extend the dismissal date leaves us confused. In any event, because the standard of review for both a continuance and a dismissal-date extension is the same, we review both.

A. Standard of Review

1. Continuance

We review the trial court's denial of a motion for continuance for an abuse of discretion. See In re S.M.H., 523 S.W.3d 783, 797 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)). A trial court abuses its discretion only if its ruling was arbitrary, unreasonable, or without reference to any guiding rules or principles. See id. (citing Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex. App.-Houston [14th Dist.] 2006, no pet.)).

2. Dismissal Deadline

Termination proceedings have a dismissal deadline. See Tex. Fam. Code Ann. § 263.401(a). Section 263.401(b) governs extending that deadline. See id. § 263.401(b). An appellate court reviews the trial court's decision to grant or deny an extension requested under Section 263.401(b) for an abuse of discretion. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth), pet. denied, 260 S.W.3d 462 (Tex. 2008) (per curiam). The focus is on

• the child's needs,• whether extraordinary circumstances necessitate the child's remaining in the temporary custody of the Texas Department of Family and Protective Services, and

• whether continuing that temporary custody is in the child's best interest.

In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied) (op. on reh'g).

B. Discussion

Mother wanted a continuance and a dismissal-date extension so that she could show her sobriety. As we explain below, the trial court did not abuse its discretion by denying her motions.

Mother herself did not appear for the February 11, 2020 trial setting. At the preliminary hearing that day on Mother's motion, Mother's counsel acknowledged having lost contact with Mother for about three weeks. Only that morning, Mother had texted her attorney that she was in a drug-treatment program. This was news to the Department's caseworker, who stated that she could not verify whether Mother was really in a drug-treatment program. Even if true, Mother had not entered the program ordered by the court.

Opposing Mother's motion, the State had the caseworker testify, and she explained that in February 2019 (when the Department first removed the children), Mother was in jail, where she remained until March. Mother was not in jail in April, May, June, July, or August, and during that time Mother could have received drug treatment but did not. Then, from the end of August through the end of November,Mother was again in jail. Released for all of December, all of January 2020, and through February 11 (the date of trial), Mother could have but again had not engaged in any drug treatment.

The caseworker added that even before the present case, the Department had offered Mother help for her drug addiction through Family Based Safety Services. Despite everything, according to the caseworker, Mother had not made any progress.

Acknowledging that giving Mother more time would not harm the children, the caseworker nevertheless asserted that proceeding to trial was in their best interest so that they could have permanency. The caseworker noted that since the previous trial date on January 7, Mother had missed three of four possible visits with the children.

Mother's two incarcerations, standing alone, were not sufficient reason for a continuance. A parent's confinement or incarceration is generally considered to be the parent's fault and not an extraordinary circumstance. In re M.S., No. 06-19-00110-CV, 2020 WL 1312937, at *2 (Tex. App.—Texarkana Mar. 20, 2020, no pet.). And a parent's inability to complete services due to confinement is not an extraordinary circumstance but is instead the consequence of poor choices. Id. Generally, parents cannot blunder their way into extraordinary circumstances. See id.

Even when not incarcerated, Mother made no progress. The trial court could have viewed Mother's unverified assertion that she was in a drug-treatment program—made just that morning—as a ruse. As the sole arbiter assessing a witness's credibility, the trial court is free to discredit self-serving testimony. See In re M.T.R.,579 S.W.3d 548, 570 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). The caseworker could not verify whether Mother was actually in a drug-treatment program. Under an abuse-of-discretion standard, the trial court judges the witness's credibility and resolves any conflicting testimony. See In re J.G., 412 S.W.3d 83, 89 (Tex. App.—Fort Worth 2013, no pet.) (citing Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290 (Tex. App.—Dallas 2012, no pet.)).

We hold that the trial court did not abuse its discretion by denying Mother's motion for a continuance and for a dismissal extension. The children needed permanency, no extraordinary circumstances existed, and proceeding was in the children's best interest. See A.J.M., 375 S.W.3d at 604.

Mother raises one other argument that we address briefly. She contends that the trial court, when ruling, improperly relied on Section 263.401(b-2), which requires the trial court to consider whether a parent made a good-faith effort to complete a court-ordered substance-abuse-treatment program. She contends that Section 263.401(b-2) applies only to cases filed after September 1, 2019, and because the Department filed its case in February 2019, Section 263.401(b-2) was inapplicable. See Act of May 22, 2019, 2019 Tex. Sess. Law Serv. Ch. 783, §§ 2-3 (codified at Tex. Fam. Code Ann. § 263.401(b-2)).

True enough, the trial court appears to have relied on Section 263.401(b-2) when denying her motion. But the trial court was not alone. We note that in Mother's motion, she too relied specifically on the inapplicable Section 263.401(b-2). The errorabout which Mother complains thus appears invited....