in Re A.R., a Minor Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00237-CV

IN RE A.R., A MINOR CHILD

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-98901J-13

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MEMORANDUM OPINION 1

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Following a bench trial, appellant E.R. (Father) appeals the trial court’s

order terminating his parental rights to his daughter, A.R. (Abby). 2 In his first

issue, Father contends that the evidence is legally insufficient to support the

grounds for termination pled by the Department of Family and Protective

Services (the Department). In his second and third issues, Father argues that

1
See Tex. R. App. P. 47.4.
2
To protect A.R.’s anonymity, we will use “Abby” as her alias. See Tex.
Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
the trial court abused its discretion by denying his request for a 180-day

extension of the statutory dismissal date and by denying his motion for

continuance. We affirm.

Background Facts

R.M. (Mother) gave birth to Abby in May 2013. Soon after her birth, Abby

was placed with her grandmother and then with S.M. (Great-Aunt) because her

meconium tested positive for amphetamine. An oral-fluid drug test administered

at that time to Mother returned negative for amphetamine. 3 The Department

instructed Mother to submit to subsequent drug tests, which she missed.

Eventually, Mother submitted to a hair follicle test, which also returned negative.

Despite the negative drug tests, in August 2013, the Department filed a

petition that requested temporary sole managing conservatorship of Abby and

termination of Mother’s and Father’s parental rights to her if reunification could

not be achieved. At that time, Father was incarcerated for possessing less than

one gram of methamphetamine and possessing while intending to distribute

between four and two hundred grams of gamma hydroxybutyric acid (GHB). 4

3
The clerk’s record indicates that in May 2013, Mother admitted to using
methamphetamine in 2012 and had previously tested positive for illegal drugs.
4
In March 2013, a trial court sentenced Father to eight years’ confinement
for the possession-with-intent-to-deliver offense and six months’ confinement for
the straight-possession offense. Father concedes that he was “incarcerated . . .
at all times during the pendency of this case.”

2
 The Department attached an affidavit to its petition to inform the trial court

of the events preceding Abby’s removal and of a previous case involving Abby’s

older brother, A.R. 5 The trial court named the Department as Abby’s temporary

managing conservator. Father filed an answer that contained a general denial.

The Department filed a family service plan. The plan set out a goal of

family reunification; explained the reasons for Abby’s removal; 6 and assigned

tasks to Mother and Father, including meeting Abby’s basic health and safety

needs, abstaining from drug and alcohol use and criminal activities, maintaining

legal and stable employment, and completing anger management and parenting

classes.

From October 2013 to July 2014, the Department monitored the parents’

compliance with the plan. In March 2014, the Department informed the trial court

that Father was confined from December 2012 to March 2013, was released for

about a month, and then went to prison for drug-related charges. The

Department also reported that Mother had failed a drug test in the summer of

2013 and that Father was still confined and had therefore not progressed toward

completing the requirements of the service plan. The Department changed

Abby’s permanency goal to adoption by a relative.

5
The Department removed A.R. from the home prior to Abby’s birth
because Mother and Father were “making and selling drugs and using them.”
6
The service plan stated that Abby’s parents had “put their need for drugs
above the needs of [the] child.”

3
 In July 2014, when Abby was a little over a year old, the trial court held a

bench trial. Father requested a continuance and a 180-day extension of the

statutory dismissal date 7 to allow more time to complete his prerelease programs

and possibly be paroled. In his written motion for continuance, he argued,

[Father] is enrolled in a drug intervention and rehabilitation program
. . . . He has substantially complied with requirements for services
while in [prison], including but not limited [to] counseling, [c]ognitive
intervention classes, CHANGES program (Changing Habits
Achieving New Goals to Empower Success)[,] and participation in
Pre-release Therapeutic Community. His completion of the
programming will allow for early release from jail in October 2014.
He was incarcerated at the time of removal, and was not named as a
cause of removal of the child in this case.

After Abby’s attorney ad litem objected to the continuance or extension, the trial

court denied both requests and commenced a trial on the merits.

Father did not appear at the trial, but the State presented testimony from

the Department’s caseworker and Great-Aunt to support termination of his

parental rights. The trial court terminated his parental rights to Abby and

appointed the Department as permanent managing conservator. In the order,

the trial court found that termination was in Abby’s best interest; that Father had

knowingly engaged in criminal conduct that had resulted in his conviction,

confinement, and inability to care for Abby for two years from the date the

Department filed his petition; and that Father had engaged in conduct or

7
See Tex. Fam. Code Ann. § 263.401 (West 2014).

4
knowingly placed Abby with persons who had engaged in conduct that had

endangered her physical or emotional well-being. Father brought this appeal. 8

Sufficient Evidence for Termination

In his first issue, Father argues that the evidence is legally insufficient to

support termination because, in part, the Department failed to prove that

termination is in Abby’s best interest and that he “knowingly engaged in criminal

conduct that has resulted in [his] . . . (i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child for not less

than two years from the date of filing the petition.” Tex. Fam. Code Ann.

§ 161.001(1)(Q), (2) (West 2014).

In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92

(1982)). We strictly scrutinize termination proceedings in favor of the parent.

8
The trial court also terminated Mother’s parental rights based on her
voluntary relinquishment; she has not appealed.

5
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55;

Holick, 685 S.W.2d at 20–21.

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); E.N.C., 384 S.W.3d at 802.

Due process demands this heightened standard because “[a] parental rights

termination proceeding encumbers a value ‘far more precious than any property

right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102

S. Ct. at 1397); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and

convincing if it “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.” Tex. Fam.

Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802. For a trial court

to terminate a parent-child relationship, the party seeking termination must

establish that the parent’s actions satisfy one ground listed in family code section

161.001(1) and that termination is in the best interest of the child. Tex. Fam.

Code Ann. § 161.001; E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84

(Tex. 2005).

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We

review all the evidence in the light most favorable to the finding and judgment.

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder

6
could have done so. Id. We disregard all evidence that a reasonable factfinder

could have disbelieved. Id. We consider undisputed evidence even if it is

contrary to the finding. Id. That is, we consider evidence favorable to

termination if a reasonable factfinder could, and we disregard contrary evidence

unless a reasonable factfinder could not. See id.

Section 161.001(1)(Q)

The Department may seek termination when a parent has knowingly

engaged in criminal conduct that resulted in the parent’s conviction,

imprisonment, and inability to care for the child “for not less than two years from

the date of filing the petition.” Tex. Fam. Code Ann. § 161.001(1)(Q). In other

words, subsection (Q) applies when a “parent is convicted and sentenced to

serve at least two years and will be unable to provide for his or her child during

that time.” In re A.V., 113 S.W.3d 355, 356, 360 (Tex. 2003) (holding that the

time period in subsection (Q) is prospective). Termination under subsection (Q)

ensures that the child will not be neglected during the time the parent is

incarcerated. Id.

Father contends that the Department could not sustain its burden under

subsection (Q) because he was eligible for parole before the expiration of two

7
years from August 2013, when the Department filed its original petition. 9

Supreme court precedent precludes this argument.

In In re H.R.M., while addressing subsection (Q), the supreme court

discussed the possibility of parole and the ability of a parent to care for a child

while incarcerated. 209 S.W.3d 105, 108–09 (Tex. 2006). The court determined

that evidence of the availability of parole is relevant to determine whether the

parent will be released within two years; however, the possibility of parole does

not prevent a finding that the parent will remain incarcerated and unable to care

for the child. Id. at 109. The court noted that parole decisions are “inherently

speculative” and that the final decision regarding parole belongs to the parole

board. Id. The court reasoned that if the possibility of parole prevented a

factfinder from forming “a firm belief or conviction” that the parent would remain

in jail and be unable to care for the child, termination under subsection (Q) could

only occur when there was no possibility of parole. Id. Thus, the party seeking

termination would have to show that there is no chance of early release, which

would change the burden of proof from clear and convincing to beyond a

reasonable doubt. Id.; see In re K.D.B., No. 01-14-00041-CV, 2014 WL

2936008, at *5 (Tex. App.—Houston [1st Dist.] June 26, 2014, no pet.) (mem.

op.) (“While the evidence illustrated the possibility of Father’s release prior to

9
A document in the clerk’s record lists Father’s parole-eligibility date as
December 7, 2013; his projected-release date as April 24, 2016; and his
maximum-sentence date as January 5, 2021.

8
November 2014, as the court determined in H.R.M., such evidence did not

prevent the trial court from forming a firm belief or conviction he would remain

incarcerated after that date.”); In re N.R.T., 338 S.W.3d 667, 675 n.5 (Tex.

App.—Amarillo 2011, no pet.) (holding similarly).

The supreme court went on to consider how a parent can care for a child

while incarcerated. H.R.M., 209 S.W.3d at 110. The court stated in part, “Absent

evidence that [a caregiver] agreed to care for the child on behalf of the

incarcerated parent, merely leaving a child with a [caregiver] does not constitute

the ability to provide care.” Id.

Father offered evidence to show he might be released from prison within

the relevant two-year period but not evidence of his ability to care for Abby while

he is incarcerated. In his brief, Father states that he received an eight-year

sentence but was eligible for parole four months after the Department began

termination proceedings. Additionally, at the bench trial, Father offered

Exhibit B—operating procedures for the Changes Program—in support of his

potential early release from prison. In H.R.M., the supreme court stated that

parole eligibility and potential release within the two-year period is relevant, but

the court also observed that parole dates are purely speculative. See id. at 109.

Because Father’s early release is speculative and because his eight-year

sentence extends beyond the relevant two-year period, a factfinder could have

formed a firm belief or conviction that he would not be paroled and would remain

incarcerated for two years following the initial termination filing. See id.

9
 Also, Father did not suggest any placements or provide proof that he is

capable of caring for Abby while he is incarcerated. Great-Aunt testified that she

was caring for Abby because she wanted to be Abby’s “forever parent” and

because it was in Abby’s best interest to be in a safe environment following her

removal from Mother’s care. Great-Aunt did not testify that in caring for Abby,

she was acting on Father’s behalf. Great-Aunt also testified that Father has not

provided any financial support for Abby and that she believes he is unable to take

care of her. She explained, “[T]he whole reason that [Abby’s brother] was taken

in the beginning is because he was living in a home with two parents who were

making and selling drugs and using them. And so the fact that [Father] had his

son living in that environment speaks volumes to me.”

Reading the record in the light most favorable to the verdict, we hold that

the evidence is such that a factfinder could reasonably reach a firm belief or

conviction that Father would be imprisoned and unable to care for Abby for two

years from the original filing date in August 2013. Thus, we overrule Father’s

legal sufficiency challenge concerning the trial court’s finding under

subsection (Q). 10

10
In holding that the evidence is legally sufficient to support termination
under section 161.001(1)(Q), we need not address Father’s legal sufficiency
argument concerning the trial court’s finding under section 161.001(1)(E). See
Tex. R. App. P. 47.1; A.V., 113 S.W.3d at 362 & n.39; In re E.M.N., 221 S.W.3d
815, 821 (Tex. App.—Fort Worth 2007, no pet.).

10
Abby’s best interest

Father also contends in his first issue that the Department failed to prove

by clear and convincing evidence that termination is in Abby’s best interest.

There is a strong presumption that keeping a child with a parent is in the child’s

best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review the entire

record to determine best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.

2013). The same evidence may be probative of both the subsection (1) ground

and best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); see E.C.R., 402

S.W.3d at 249.

In determining the best interest of the child, we may consider the desires of

the child, the emotional and physical needs of the child now and in the future, the

emotional and physical danger to the child now and in the future, the parental

abilities of the individuals seeking custody, the programs available to assist these

individuals to promote the best interest of the child, the plans for the child by

these individuals or by the agency seeking custody, the stability of the home or

proposed placement, the acts or omissions of the parent which may indicate that

the existing parent-child relationship is not a proper one, and any excuse for the

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest

finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384

S.W.3d at 807.

11
 Father argues that the evidence is legally insufficient to satisfy several of

the Holley factors. But we conclude that Father’s criminal acts and instability,

along with Abby’s positive developments with Great-Aunt, support the trial court’s

finding that it is in Abby’s best interest to terminate Father’s parental rights and to

proceed with the Department’s permanency plan.

At the time of the termination trial, Father was incarcerated for possessing

and manufacturing controlled substances. His eight-year sentence was just the

most recent result from a series of criminal acts. He was previously convicted of

assaulting a woman by hitting her with a beer bottle, providing false identification,

displaying counterfeit insurance, and fraudulently using or possessing identifying

information.

Father’s most recent arrest occurred during a drug raid while Mother was

pregnant with Abby and in the presence Abby’s brother. Father and Mother were

manufacturing GHB and were also in possession of methamphetamine. Julie

Haenes Jacobson, the Department’s caseworker, testified that Father’s criminal

behavior and continued incarceration demonstrate his inability to parent and

expose Abby to potential danger.

At the termination trial, Jacobson suggested adoption by a related

caregiver as a permanent plan for Abby. The Department placed Abby with

Great-Aunt when she was only twenty-two days old. Great-Aunt and Jacobson

testified that Abby is thriving and that she has bonded with Great-Aunt and

Abby’s brother, who is also in Great-Aunt’s care. Jacobson testified that Abby is

12
in a safe and stable environment and that it is in her best interest to remain in

that environment. Jacobson testified that because Father is currently

incarcerated and can only speculate about his potential release date, he lacks

the stability Abby needs. Jacobson said that Great-Aunt provides Abby’s “sense

of stability and security.”

Great-Aunt testified that she is currently in the process of adopting Abby’s

brother and that she would like to adopt Abby as well. She testified that she

expected to be able to benefit from an adoption assistance program offered by

the Department. Also, Great-Aunt testified that Father wrote her a letter stating

that he approves of her raising Abby and her brother. Great-Aunt described

Abby as healthy, happy, loving, and developmentally on target.

We conclude that although the record contains some evidence that a

factfinder could have weighed against a decision to terminate, 11 the trial court

could have formed a firm belief or conviction that termination is in Abby’s best

interest from the evidence of Father’s lengthy criminal history (including drug-

related offenses and a violent offense), continued incarceration, and lack of

stability and ability to care for Abby now and in the future. See In re M.R., 243

S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (concluding that

11
For example, Great-Aunt testified that she sends Father pictures and
updates on Abby and her brother and that Father asks about Abby’s welfare.
The record also suggests that Father accepted greater punishment for his
involvement in the drug charges so that Mother could avoid jail time and give
birth to Abby.

13
incarceration can be considered as endangering conduct when it affects a

parent’s ability to provide safe living conditions or to ensure the safety and well-

being of the child); In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth

2003, no pet.) (concluding that a parent’s continuous drug use, unstable lifestyle,

and criminal record threatened the physical well-being of a child and put the child

at risk of injury). Additionally, the trial court’s decision to terminate could have

been guided by the evidence of Great-Aunt’s bond with Abby, Abby’s bond with

her brother, and Great-Aunt’s ability to properly care for her. 12 See In re Z.C.,

280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (stating that

stability and permanence are important to the growth of a child and affirming a

finding that termination was in the child’s best interest when the child was thriving

in foster care); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (op. on reh’g) (considering a child’s bond with a foster family

as a factor supporting the child’s best interest).

We hold the evidence to be legally sufficient to support both the

termination ground under section 161.001(1)(Q) and the best-interest

requirement of section 161.001(2). We overrule Father’s first issue.

12
Father concedes on appeal that Great-Aunt provides Abby with a “safe
and stable home.”

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 No Abuse of Discretion by Denying Request for
Extension and Continuance

In his second and third issues, Father argues that the trial court abused its

discretion by denying his request for a 180-day extension of the statutory

dismissal date and by denying his motion for continuance.

Motion for extension under section 263.401

The family code requires a trial court to commence a termination trial on

the merits, grant an extension, or dismiss a termination suit by the first Monday

after the first anniversary of the date the court rendered a temporary order

appointing the Department as temporary managing conservator. 13 Tex. Fam.

Code Ann. § 263.401(a)–(b). The extension, not to exceed 180 days, may be

granted if “the court finds that extraordinary circumstances necessitate the child

remaining in the temporary managing conservatorship of the [D]epartment and

that . . . [the extension] is in the best interest of the child.” Id. § 263.401(b); see

In re A.J.M., 375 S.W.3d 599, 605 (Tex. App.—Fort Worth 2012, pet. denied) (en

banc) (op. on reh’g) (“[I]t is clear that the legislature preferred and directed trial

courts to complete their state-involved terminations by the one-year

anniversary.”).

In the trial court, Father argued (through counsel) that he was entitled to an

extension because he had taken “both his own charges and [Mother’s charges]

so that [she] could deliver” Abby; because he had participated in rehabilitation

13
The trial court rendered such an order in September 2013.

15
programs while confined; and because he could be released during the extension

period, therefore allowing him an opportunity to “prove himself, get a job, get

housing, and show the Department that he was prepared to take care of his

child.” The Department responded by contrasting Father’s uncertainty with

Abby’s need for permanency and by contending that Father could be confined

until 2021 based on his sentence. Mother and Abby, through her attorney ad

litem, also opposed the extension. The trial court denied Father’s motion. On

appeal, he contends that the trial court should have extended the dismissal date

to “determine whether [he] was a viable placement option for [Abby].”

We apply an abuse of discretion standard when reviewing a trial court’s

refusal to extend the dismissal date. See A.J.M., 375 S.W.3d at 604; In re D.W.,

249 S.W.3d 625, 647 (Tex. App.—Fort Worth), pet. denied, 260 S.W.3d 462

(Tex. 2008). We must decide whether the trial court acted without reference to

any guiding principles or whether the act was arbitrary or unreasonable. D.W.,

249 S.W.3d at 647.

In his brief, Father contends that he could have been released as early as

October 2014, but as we explained above, his release was ultimately contingent

on the parole board’s decision. See H.R.M., 209 S.W.3d at 109. Also, Jacobson

explained that it is in Abby’s best interest to be placed in the care of the

Department pending adoption by Great-Aunt. Jacobson testified that Abby

“deserves permanency now” and that Father “is unavailable to provide her with

that permanency, [or] to provide her with a social and home environment which

16
would be safe and stable.” The family code presumes that “the prompt and

permanent placement of the child in a safe environment” is in the child’s best

interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).

The trial court could have reasonably given weight to Abby’s need for

permanence and could have rationally determined that Father’s speculative

possibility of parole within the 180 days was not an extraordinary circumstance

that justified an extension. See Tex. Fam. Code Ann. § 263.401(b); see also

In re A.C.H., No. 02-11-00072-CV, 2012 WL 1345759, at *15 (Tex. App.—Fort

Worth Apr. 19, 2012, no pet.) (mem. op.) (holding that a trial court did not abuse

its discretion by denying an extension when the mother was scheduled to be

released from jail soon but had a pending criminal case that may have resulted in

more incarceration). Thus, we hold that the trial court did not abuse its discretion

by denying Father’s request for the extension. We overrule his second issue.

Motion for continuance

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800

(Tex. 2002). We must determine whether the trial court’s action was so arbitrary

and unreasonable as to amount to a clear and prejudicial error of law. Joe v.

Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). Father again

argues that a continuance would have given him the opportunity to complete his

prerelease services and possibly be paroled. As discussed above, the trial court

considered the motion under guiding principles and determined that a

17
continuance was not needed. See id. The court’s denial was not unreasonable.

See id. Because the trial court acted reasonably and under the appropriate

guiding principles, including the family code’s preference for a prompt and

permanent placement, we hold that the trial court did not abuse its discretion by

denying Father’s motion for continuance. Thus, we overrule Father’s third issue.

Conclusion

Having overruled all of Father’s issues, we affirm the trial court’s order

terminating his parental rights to Abby.

/s/ Terrie Livingston

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: January 15, 2015

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