In re A.M.

1

IN THE INTEREST OF A.M., A CHILD

No. 06-21-00121-CV

Court of Appeals of Texas, Sixth District, Texarkana

April 1, 2022

Date Submitted: March 31, 2022

On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 21C0048-CCL

Before Morriss, C.J., Stevens and Carter, ^[*] JJ.

MEMORANDUM OPINION

Josh R. Morriss, III Chief Justice

The Department of Family and Protective Services (the Department) brought a petition for protection of a child, for conservatorship, and for termination of Father's parental rights^[1] to his infant son, A.M.^[2] Following a bench trial, the trial court found that termination of the parent-child relationship was in B.F.'s best interest and it terminated Father's parental rights pursuant to Section 161.001(b)(1), grounds (N) and (O). See Tex Fam. Code Ann. § 161.001(b)(1)(N), (O) (Supp.). Father appeals, maintaining that (1) the trial court erred by failing to grant his motion for extension of the dismissal deadline due to extenuating circumstances, and (2) the evidence was legally and factually insufficient to support a finding that termination of his parental rights was in A.M.'s best interest. Because we find that (1) the trial court did not err when it denied Father's motion for extension and that (2) legally and factually sufficient evidence supported the best-interest finding, we affirm the judgment of the trial court.

(1) The Trial Court Did Not Err When it Denied Father's Motion for Extension

Father contends that the trial court abused its discretion when it denied his motion for extension of the dismissal deadline the basis of which was Father's desire to complete his family service plan. Father orally asked the court for the extension on the day of trial.^[3]

A trial court can grant a 180-day extension of the dismissal deadline in a suit to terminate a parent-child relationship filed by the Department on a showing that "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." Tex. Fam. Code Ann. § 263.401(b) (Supp.). "We review a trial court's decision to grant or deny an extension of the dismissal date under an abuse of discretion standard." In re A.B., No. 06-20-00073-CV, 2021 WL 1216884, at *8 (Tex. App -Texarkana Apr. 1, 2021, no pet.) (mem. op.) (citing In re A.S., No. 12-16-00104-CV, 2016 WL 5827941, at *1 (Tex. App-Tyler Sept. 30, 2016, no pet.) (mem. op.)). "The focus on granting this extension 'is on the needs of the child.'" Id. (quoting In re A.J.M., 375 S.W.3d 599, 604 (Tex. App-Fort Worth 2012, pet. denied)). If the party seeking the extension fails to show how the requested extension would have been in the child's best interests, denying an extension is not an abuse of discretion. In re D.R., 631 S.W.3d 826, 837 (Tex. App-Texarkana 2021, no pet.).

In this case, Father did not comply with Rule 251 of the Texas Rules of Civil Procedure, which states, "No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex.R.Civ.P. 251. "Where the terms and provisions of Rule 251 have not been complied with, it will be presumed that the trial court had not abused its discretion in denying continuance." Ohlausen v. Thompson, 704 S.W.2d 434, 436 (Tex. App-Houston [14th Dist] 1986, no writ). In addition, "[i]f a motion for continuance is not made in writing and verified, it will be presumed that the trial court did not abuse its discretion in denying the motion." In re E.L.T., 93 S.W.3d 372, 375 (Tex. App -Houston [14th Dist] 2002, no pet.) (citing Ohlausen, 704 S.W.2d at 436).

Because Father did not comply with Rule 251, we presume that the trial court did not abuse its discretion. Moreover, the complained-of motion for extension was the second time Father asked for additional time to complete his service plan. "Failure to begin complying with a family service plan until several weeks before trial does not constitute an extraordinary circumstance when the requirements necessary to obtain the return of the child were known well in advance of that time." In re O.R.F., 417 S.W.3d 24, 42 (Tex. App -Texarkana 2013, pet. denied). Issues that are "considered to be the parent's fault" will not generally constitute an extraordinary circumstance. In re A.J.M., 375 S.W.3d at 604.

"The statute's clear preference is to complete the process within the one-year period." Id. at 605. "Because the statutory language prefers finality to suit and because we cannot say the trial court abused its discretion in denying [Father's] extension," we overrule this point of error. Id.

(2) Legally and Factually Sufficient Evidence Supported the Best-Interest Finding

Father also claims that the evidence was insufficient to support the finding that it was in A.M.'s best interest to terminate Father's parental rights to A.M. We disagree.

Tanya Baker, a Department investigations supervisor, ^[4] testified that the Department became concerned about A.M.'s welfare after it received a report that A.M. had tested positive for methamphetamine. Baker explained that, typically, when a child tests positive at birth, the mother has been using the substance during her pregnancy. Because A.M. was born positive for drugs, he appeared to be "feeble," had withdrawal issues, experienced feeding difficulties, and had other medical concerns. A.M. was removed from the parents' care at that time. According to Baker, Father did very little to prevent A.M.'s removal. He did, however, provide a relative placement option, but that proposed placement was not approved to care for A.M.

In the initial part of the investigation, Father reported that he had a history with marihuana use but had not used any other type of illegal drugs, including methamphetamine, for the last five or six years. He also reported that he had been released from prison in 2010 for manufacturing methamphetamine.^[5] At the Department's request, Father submitted to a urinalysis drug screen, ^[6] but he refused to complete a hair-follicle test "because he had paint in his hair." He did, however, agree to take the hair-follicle test the next day. When he was contacted by investigator Williamson as to whether he had taken the test, he informed her that his attorney had advised him not to submit to it. Despite Mother testing positive for methamphetamine at the hospital, Father stated that he did not believe Mother used illegal drugs during her pregnancy and that he had never seen her use any type of illegal substances. Although A.M. was born in the latter part of December, Father had visited him on only three occasions by January 11.

In February 2021, the court entered temporary orders, setting forth the steps that Father would be required to take in order to be reunified with A.M., including, but not limited to, the following: (1) submit to a psychological or psychiatric evaluation; (2) submit to counseling to address the issues that led to the removal of A.M.; (3) attend, participate, and complete parenting classes; (4) submit to drug and alcohol testing and assessments; (5) submit to a home study; and (6) comply with the remainder of the family service plan.

In March 2021, Father attempted to execute a full relinquishment of his parental rights.^[7]In his affidavit of relinquishment, Father agreed that it would be in A.M.'s best interest for a family friend to adopt him. After a home study was completed, it was determined that the family friend would not be a suitable placement for A.M.^[8]

Jasmine Turner, a conservatorship caseworker for the Department, testified that, when she first approached Father about participating in services, he showed no interest in doing so. Turner stated that Father could have started the six-week parenting class in February 2021 but that he did not complete the class until October 2021.

According to Turner, Father was required to complete a substance-abuse assessment, which determines whether a parent needs substance abuse treatment, but he failed to participate in the assessment. Turner explained that Father was ordered to complete the assessment due to the nature of A.M.'s removal and because he had been incarcerated in Arkansas because of a drug-related conviction. Likewise, Father did not comply with the drug-testing requirements. Father was offered approximately forty-seven to fifty chances to submit to drug tests, and the only test he actually submitted to was completed on December 9, 2021.^[9] That December 9 test showed that Father was positive for amphetamine and methamphetamine and that the urine specimen he gave had been diluted. Turner was asked if there was any reason for her to believe that Father was currently using drugs, and she responded, "Yes. I've asked him several months to drug test for me, and he has not, so to me, that indicates that there's some drug usage."

Father was also required to submit to a psychological evaluation, which he did at the end of October. The evaluation recommended that he receive trauma-informed counseling, counseling with the mother, and substance-abuse treatment. According to Turner, Father did not comply with any of those recommendations. Moreover, despite being ordered to participate in weekly individual counseling in February 2021, Father did not begin participating in therapy until October 2021. Turner calculated that, had Father started attended counseling sessions at the time it was ordered, he could have attended roughly forty-nine sessions.

Father was employed, but he had not provided any...