In re A.J.M.

375 S.W.3d 599

In the Interest of A.J.M. and E.A.M., Children.

No. 02–11–00137–CV.

Court of Appeals of Texas, Fort Worth.

July 16, 2012.

Review Denied Sept. 14, 2012.

Prior Version Recognized as Unconstitutional

V.T.C.A., Family Code § 263.405Dean M. Swanda, Swanda & Swanda, P.C., Arlington, TX, for Appellant.

Fred M. Barker, Assistant County Attorney for Parker County, Weatherford, TX, for Texas Department of Family and Protective Services.

Lisa A. Crow, Weatherford, TX, Ad Litem.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING AND MOTION FOR EN BANC RECONSIDERATION¹

TERRIE LIVINGSTON, Chief Justice.

After granting appellant's motion for rehearing and motion for en banc reconsideration, we withdraw our prior opinion and judgment and rewrite this court's opinion to address appellant's first issue on its merits.

Appellant appeals from the trial court's judgment terminating his parental rights to daughters A.J.M. and E.A.M. In four issues, he complains that the trial court erred by denying his motion to extend the dismissal deadline and that the evidence is factually insufficient to support the termination findings. We hold that appellant did not forfeit his issue on appeal regarding the trial court's denial of his motion to extend the dismissal deadline but that the trial court did not abuse its discretion in denying his motion. We also hold that the evidence is factually sufficient to support the endangerment and best interest findings. We therefore affirm the trial court's judgment.

I. The trial court did not abuse its discretion by denying appellant's motion to extend the one-year dismissal deadline.

In his first issue, appellant argues that the trial court erred by denying his motion to extend the mandatory statutory one-year dismissal date. Under former section 263.405(i) of the family code, the law in effect when the trial court rendered this judgment, appellant was required to raise this issue in his statement of points.² However, because we have held former section 263.405(i) to be facially invalid, we address his issue.³

Appellant argues that the trial court erred when it denied his motion to extend the dismissal date under family code section 263.401. SeeTex. Fam.Code Ann. § 263.401(a), (b) (West 2008). In our original opinion, we incorrectly held that appellant had forfeited this issue because he had not included this particular issue in his statement of points on appeal as required under former section 263.405(i). In re A.J.M., No. 02–11–00137–CV, 2011 WL 5984540, at *1 (Tex.App.-Fort Worth Dec. 1, 2011, no pet.) (mem. op.); see Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (repealed 2011). The holding in our original opinion is incorrect because this court has previously held that former section 263.405(i) violates the Separation of Powers Clause of the Texas constitution in that it prevents an appellant from pursuing an issue on appeal that has been properly preserved in the trial court; thus, it unconstitutionallyinterferes with our constitutionally conferred power to review the issue on the merits on appeal. D.W., 249 S.W.3d at 640, 645. Therefore, we have the power to review this issue on appeal.

Here, appellant moved to extend the dismissal deadline of the underlying termination suit for 108 days because he was still incarcerated in the Parker County jail and would not be released until shortly before the scheduled trial date of February 9, 2011. SeeTex. Fam.Code. Ann. § 263.401. He specifically asked that the case be reset to October 7, 2011 so that after his release he could attend the trial and also complete the parenting class and other services required by his service plan.

First, we note that appellant preserved this issue for appeal by bringing his request to the trial court's attention by written motion dated January 11, 2011. See Tex.R.App. P. 33.1. Furthermore, appellant properly raised the issue on appeal in his first issue: “The trial court erred by denying appellant's motion to extend the dismissal date.”

Appellant's requested extension date of October 7, 2011 is within the 180–day permissible extension when counting from the Monday following the one-year anniversary of any temporary order appointing the Texas Department of Family and Protective Services (the Department) as managing conservator. SeeTex. Fam.Code Ann. § 263.401(a). Section 263.401(b) allows the trial court to extend the dismissal deadline if the movant shows “extraordinary circumstances [that] 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.” Id. § 263.401(b).

At the January 14, 2011 hearing on his motion for continuance, appellant claimed his incarceration had prevented his ability to comply with his service plan and his ability to show his willingness to work to get his children back. He also agreed that their current placement was not harmful and that the children were not readily adoptable at that time. Conversely, the children's ad litem testified that any delay in termination would delay an anticipated lengthy adoption, that she could not recommend returning the children to the parents regardless, and that incarceration was not an “extraordinary circumstance” justifying extension under the statute.

We review a trial courts decision to grant or deny an extension of the dismissal date under the abuse of discretion standard. D.W., 249 S.W.3d at 647. 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. Tex. Fam.Code Ann. § 263.401(b). The trial court is further directed to make such findings and include them in any order granting the extension, along with the new trial date and any further necessary temporary orders. Id.

Appellant attended the continuance hearing and the permanency hearing held at the same time, with trial counsel. At the end of the permanency hearing, the trial court found that appellant had “not demonstrated adequate and appropriate compliance with the service plan.” The trial court further declared appellant to be the father of both children and named him a temporary possessory conservator. Moreover, the trial court found the guidelines for possession and access to the children were not in their best interest and granted appellant supervised visitation of one hour per week. Pursuant to section 263.306(a)(13), the trial court set the next dismissal date as April 11, 2011 and confirmed the February 9, 2011 trial date. Tex. Fam.Code Ann. § 263.306(a)(13) (West Supp.2012).

In his brief on appeal, appellant argues that the trial court erred in failing to grant his extension. Appellant had said at the January 14 hearing that he might be released on January 28, 2011 or April 20, 2011 and argued to keep the children in their current placement because they were “not immediately adoptable anyway.” Thus, he contended that his incarceration, the search for a “suitable relative placement,” and continuing the Department's managing conservatorship was in the children's best interest.

Notably, the children's ad litem attorney argued against an extension because of the children's long-term emotional and developmental needs. Both the ad litem and the Department's caseworker contended that visits with appellant had actually been detrimental to E.A.M. in particular.

This is all that appellant points to in support of either “extraordinary circumstances” or the children's alleged “best interest.” The statute's clear preference is to complete the process within the one-year period. The legislature's use of the language, “unless the court has commenced a trial on the merits or granted an extension ... the court shall dismiss ...,” is mandatory. Id.§ 263.401(a); see In re Tex. Dep't of Family & Protective Servs., 348 S.W.3d 492, 497 (Tex.App.-Fort Worth 2011, orig. proceeding). Furthermore, when section 263.401(a) is read with section 263.401(b)'s language—“the court may not retain”—it is clear that the legislature preferred and directed trial courts to complete their state-involved terminations by the one-year anniversary. Tex. Dep't of Family & Protective Servs., 348 S.W.3d at 497. We have already determined and held that the term “shall” is generally a mandatory term and that the exception in section 263.401(b) must be closely followed. Id. Because the statutory language prefers finality to suit and because we cannot say the trial court abused its discretion in denying appellant's extension, we overrule appellant's first issue.

II. The evidence is factually sufficient to support the trial court's endangerment finding.

In his third issue, appellant contends that the evidence is factually insufficient to support the trial court's endangerment finding. As we have explained in a similar case,

Endangerment means to expose to loss or injury, to jeopardize....

....

.... Under subsection (E), the relevant inquiry 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. Termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required.

To support a finding of endangerment, the parent's conduct does not necessarily have to be directed at the child, and the child is not required to suffer injury. The specific danger to the child's well-being may be inferred from parental misconduct alone, and to determine whether termination is necessary, courts may look to parental conduct both before and after the child's birth.... As a general rule, conduct that subjects a child to a life of uncertainty...