Ronald Dunbar v. State

Dunbar v. State

IN THE

TENTH COURT OF APPEALS

No. 10-97-112-CR

     RONALD DUNBAR,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 87th District Court

Freestone County, Texas

Trial Court No. 90-083-CR

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      According to the appellant, Ronald Dunbar, on June 6, 1991, his probation was revoked on an underlying conviction for aggravated assault that had been issued eleven months earlier. See Tex. Penal Code Ann. § 22.02(a)(1) (Vernon 1994). The trial court, as a result of its order revoking Dunbar's probation, sentenced him to ten years' incarceration in the Texas Department of Criminal Justice-Institutional Division.

      On March 17, 1997, Dunbar filed a "Motion to File an Out of Time Appeal," which we will construe as a motion to extend the time to file his notice of appeal. On the same date we received Dunbar's motion, we notified him by letter that we may dismiss his cause for want of jurisdiction unless within ten days he demonstrated sufficient grounds for continuing the appeal. See Tex. R. App. P. 41(b). In a response filed March 27, 1997, Dunbar requested that we extend the time for him to perfect his appeal because the reason for its untimeliness was the ineffectiveness of his trial counsel. We will dismiss the cause for want of jurisdiction.

      A timely notice of appeal is necessary to invoke a court of appeal's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). To be timely, a notice of appeal must be filed within thirty days after the sentence is imposed, or within ninety days if a timely motion for new trial is filed. See Tex. R. App. P. 41(b)(1). Although it is not apparent in the documents submitted to us by Dunbar, we will assume that he filed a motion for new trial and that, as a consequence, his notice of appeal was due September 4, 1991.

      Provision is made in the appellate rules for the untimely filing of a notice of appeal. Rule 41(b)(2) provides that "[a]n extension of time for filing notice of appeal may be granted by the court of appeals if such notice is filed within fifteen days after the last day allowed and within the same period a motion is filed in the court of appeals reasonably explaining the need for such extension." Id. 41(b)(2).

      Dunbar filed his motion to extend the time to file his notice of appeal on March 17, 1997. By operation of Rule 41(b)(2), his motion for extension was due in this court on September 19, 1991. This court has no authority to grant an untimely motion to extend the time to file a notice of appeal. Olivo, 918 S.W.2d at 522. Therefore, Dunbar's motion to file an out of time appeal is denied.

      Without a timely filed notice of appeal, or a timely filed motion to extend the time to file a notice of appeal, the appellate court has no jurisdiction over an appeal. Id. at 522-23. Dunbar has not filed a notice of appeal, and as held above, his motion to extend the time to file a notice of appeal is untimely. Therefore, this court has no jurisdiction over his appeal, and it must be dismissed.

      The cause is dismissed for want of jurisdiction.

    

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Chief Justice McDonald (Retired)

Dismissed for want of jurisdiction

Opinion delivered and filed April 9, 1997

Do not publish

well-being of the child.  Tex. Fam. Code Ann. § 161.001(1)(D).  “Endanger” means to expose to loss or injury or to jeopardize.  Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  Threat means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.  Id.  Although subsection D addresses the child’s surroundings rather than the parent’s conduct, conduct by a parent or other resident of a child’s home can produce an environment that endangers the physical or emotional well-being of a child.  See In the Interest of C.L.C., 119 S.W.3d 382, 392-93 (Tex. App.—Tyler 2003, no pet.).

The Department first encountered Thomas when her first child, C.T., tested positive for marihuana at birth.  C.T. was removed from Thomas’s care and placed with her grandmother.[1]  A.R.R. tested positive for cocaine at birth and was likewise removed from Thomas’s care and placed with her grandmother.  Two years later, D.M.T. tested positive for marihuana at birth.  A.R.R. was living in Thomas’s home at this time.  The Department took custody of A.R.R. and D.M.T.

Thomas contends that D.M.T. was removed from her care shortly after birth and A.R.R. was healthy, clean, and cared for when the Department intervened; thus, the children were never placed in living conditions that endangered their well-being.  However, Thomas admitted using drugs during pregnancy, despite her knowledge that prenatal drug use could cause harm to an unborn child.  The record also indicates that Thomas used drugs while in possession of A.R.R.

A parent’s illegal drug use “supports the conclusion that the children’s surroundings endangered their physical or emotional well-being.”  In the Interest of D.C., 128 S.W.3d 707, 715-16 (Tex. App.—Fort Worth 2004, no pet.).  The fact that A.R.R. was not physically neglected does not negate a finding that her environment endangered her physical and emotional well-being.  See In the Interest of A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied) (substance abuse “lends itself to an unstable home environment”).  Nor does the fact that neither child was born with defects negate a similar finding.  Both children tested positive for narcotics at birth.[2]  Thomas’s prenatal use of narcotics exposed her children to injury.  See also Boyd, 727 S.W.2d at 533.

Thomas claims that she is “changing her environment” and avoiding drugs and “drug-type people.”  Richard Boyer, Thomas’s counselor, testified that this indicates that Thomas is overcoming her addiction.  Both Boyer and Dr. Douglas Cheatham, who performed Thomas’s psychological evaluation, believe that with intervention and cooperation Thomas can make progress.

However, Thomas does not appear to be highly motivated to change.  About four months before trial, she tested positive for marihuana.  The month before trial, Thomas tested positive for a painkiller prescribed to her mother-in-law.  Although several other tests yielded negative results, one was undeterminable because Thomas’s system was depleted.  Caseworker Jackie Geer testified that Thomas refused several tests and delayed others.  Former caseworker Joanie Brown testified that Thomas admittedly refused one such test because she expected to test positive.

Neither has Thomas taken advantage of the opportunities to overcome her addiction.  Boyer provided Thomas with a 12-step manual that he does not believe Thomas ever used.  As of trial, Thomas had a pending appointment with a drug treatment facility, but had neither begun nor completed treatment.  Despite Thomas’s abstinence claims, the trial court could have formed a firm belief or conviction that Thomas’s drug use jeopardized or exposed her children to loss or injury and that, based on her past conduct endangering the children’s well-being, similar conduct will recur if the children are returned to her.  See Boyd, 727 S.W.2d at 533; see also In the Interest of B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2003, pet. denied); In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved on other grounds by C.H., 89 S.W.3d at 26.

Thomas also has an extensive criminal history, including charges for assault, shop lifting, theft, possession of cocaine, and possession of marihuana.  Shortly before trial, she and her husband were arrested for prescription fraud in which Thomas denies involvement.  Thomas had recently served time in jail for unresolved traffic tickets and was also on probation.  When parents “repeatedly commit criminal acts that subject them to the possibility of incarceration, that can negatively impact a child’s living environment and emotional well-being.”  In the Interest of S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  “[D]rug-related criminal activity by parents and caregivers also supports the conclusion that the children’s surroundings endangered their physical or emotional well-being.”  D.C., 128 S.W.3d at 715-16.  The trial court could have formed a firm belief or conviction that Thomas’s criminal behavior, particularly that involving narcotics, jeopardized or exposed her children to loss or injury.  See Boyd, 727 S.W.2d at 533.

In summary, Thomas’s history of substance abuse and criminal behavior, both of which continued after the removal of the children from her care, creates conditions or surroundings that endanger her children’s physical or emotional well-being.

An environment which routinely subjects a child to the probability that she will be left alone because her parents are once again jailed, whether because of the continued violation of probationary conditions or because of a new offense growing out of a continued use of illegal drugs, or because the parents are once again committed to a rehabilitation program, endangers both the physical and emotional well-being of a child. 

 

In the Interest of S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).  The evidence is factually sufficient to support the trial court’s finding that Thomas knowingly placed or knowingly allowed her children to remain in conditions or surroundings which endanger their physical or emotional well-being.  Tex. Fam. Code Ann. § 161.001(1)(D).  We need not address the factual sufficiency of the evidence to support the other predicate grounds for termination.  See T.N.F., 205 S.W.3d at 629.

Best Interest of the Children

“[T]here is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship.”  T.N.F., 205 S.W.3d at 633.  Several factors assist with determining when termination is in a child’s best interest: (1) desires of the child; (2) emotional and physical needs of the child now and in the future; (3) emotional and physical danger to the child now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the child; (6) plans for the child by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts/omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts/omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  This list is not exhaustive, but includes the most important considerations.  Swate v. Swate, 72 S.W.3d 763, 767 (Tex. App.—Waco 2002, pet. denied).  Although no single consideration is controlling, the analysis of one factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child.  Id.      

Desires of the children.

Due to the children’s young age, the record contains no direct evidence of their desires.

Emotional and physical needs of the children now and in the future.

 

Thomas was able to keep A.R.R. healthy and clean, but has been unable to maintain stable employment.  In the twelve months before trial, she held three separate jobs each lasting no more than a few weeks.  When employed, Thomas provided financial support to the children.

Thomas initially refused to perform services because she was “undecided” about fighting for her children.  Dr. Cheatham believes that Thomas has a “real and genuine concern” for her children, but Thomas’s initial indifference causes him to question her attachment to the children.  Cheatham stated that Thomas “cannot weigh the needs of the child[ren] and sacrifice at a level that is necessary for their well-being” and “has difficulties prioritizing the needs of her children over her own needs.”  Boyer testified that Thomas focuses more on herself than “being sensitive to the needs of her children.”    

During visits, Geer observed Thomas interact more with the older children than with D.M.T.  Thomas sometimes became upset and ended her visits with the children unless accompanied by a relative.  Supervisor Paula Lee stated that Thomas seemed unable to care for the children unless someone was available to help her.  Thomas’s behavior caused Geer to question Thomas’s attachment to the children.  The record reflects that Thomas’s interaction with the children did improve.

Emotional and physical danger to the children now and in the future; acts/omissions of the parent which may indicate that the existing parent-child relationship is not proper.

 

Thomas admitted using and handling drugs during her pregnancies and while in possession of A.R.R., using drugs even though she knew prenatal drug use may harm an unborn child, and using drugs to cope with stress.  The record contains evidence that Thomas continued using drugs after her children were removed from her care.  Despite her claims of being drug free, Thomas admitted that she has not been able to overcome her addiction in the past.  Her criminal history includes drug related charges.  Thomas did not complete drug treatment as required by the Department and discontinued counseling.

 

Parental abilities of the individuals seeking custody.

 

Thomas completed parenting classes and appears to have some level of parenting skills.  Thomas did not neglect A.R.R. and testified that she can take care of her children.  She views the return of her children as a motivating factor for change.

Dr. Cheatham testified that Thomas’s “ability to modulate, manage, and deal with her own emotional state is not functioning where we need it to function for her to be a minimally adequate provider.”  With intervention and cooperation, Cheatham believes that Thomas could provide a “minimal level of adequate parenting,” but she does not seem to be as motivated as other parents.

Boyer testified that Thomas complained about the service plan and believed that exercising “good faith” was sufficient to keep her children, regardless of her behavior or “where she was in terms of completing her plan.”  Boyer did not observe Thomas accept any responsibility for the risks to her children.  Boyer testified that Thomas has made progress and could continue to do so.  As of his final session with Thomas, he could not say that Thomas possessed the commitment to improve or that the improvement she had made was so significant that she no longer posed a risk to her children.  He did not believe that Thomas could provide for the children’s minimal needs unless she continued receiving therapy.

Programs available to assist these individuals to promote the children’s best interest.

 

The Department required Thomas to undergo a psychological evaluation, drug assessment, drug treatment, random drug screening, parenting classes, and counseling.  Dr. Cheatham recommended that Thomas obtain her GED and vocational training, improve her parenting skills, complete drug rehabilitation, and seek individual psychotherapy.  Thomas completed a psychological evaluation and parenting classes.  She began GED classes a few days before trial.

Plans for the children by these individuals or by the agency seeking custody; stability of the home or proposed placement.

           

Thomas loves and wants her children.  She believes it is in the children’s best interest to know Thomas and C.T. and grow up with their own family and race.  Thomas plans for the children to live with her aunt until Thomas completes rehabilitation.  Thomas’s aunt failed her first home study because of inadequate housing.  A second home study was approved, but Thomas’s aunt subsequently lost her job.  Thomas’s aunt testified that she is seeking employment and has a “good chance” of obtaining employment.  Caseworker Haywood Thomas testified that the children would have been placed with Thomas’s aunt had she not lost her job.

After she completes rehabilitation, Thomas plans for the children to reside with her.  Both Thomas and her aunt testified that Thomas has a good support group.  Jock was concerned about the stability of Thomas’s living arrangements.  Boyer observed “conflict, arguing, fighting, [and] disagreements” between Thomas and her husband.  Dr. Cheatham testified that stress from Thomas’s interpersonal relationships causes her to “think and do things that are not necessarily good for her or her family.”  However, Thomas, and her husband, had begun to make some progress.

Geer testified that A.R.R. was quiet, shy, and withdrawn when removed from Thomas’s home.  Lee testified that the children are thriving in their foster home.  D.M.T. is walking, active, and mobile.  A.R.R. knows her colors, enjoys reading, and is alert and talkative.  Geer testified that the children’s needs are being met and they are healthy, well adjusted, and doing well.  Lee believes that the children are “good candidates for adoption.”  Both Lee and Geer indicated that the Department would attempt to locate an adoptive home for both children.

Any excuse for the acts/omissions of the parent.

            Thomas offered no excuse for her drug addiction or criminal behavior.  She explained that her inability to maintain employment results from one business being bought out, one employer conducting a lay off, and her relocation to another city.  Thomas did not continue counseling after she relocated, contending that Boyer did not answer his telephone or return her calls.  Thomas testified that she missed her first appointment with a rehabilitation facility because she received incorrect directions.  Thomas has scheduled another appointment.

Conclusion  

Thomas’s substance abuse and criminal behavior give rise to a lifestyle that demonstrates her inability to provide a stable environment for the children and to provide for their emotional and physical needs.  Her “recent efforts to remain drug free” do not “totally offset” her history of substance abuse.  In the Interest of A.D., 203 S.W.3d 407, 414 (Tex. App.—El Paso 2006, no pet.).  A trial court may “measure the future conduct of parents by their recent past conduct, but is not required to believe that there has been a lasting change in a parent’s attitude since his children were taken.” K.A.S., 131 S.W.3d at 229-230.  Thomas has not demonstrated a willingness to place her children’s needs above her own.

Accordingly, the trial court could reasonably form a firm belief or conviction that termination of the parent-child relationship is in the children’s best interest.  See In the Interest of D.S., 176 S.W.3d 873, 879 (Tex. App.—Fort Worth 2005, no pet.) (drug use, unstable lifestyle, and failure to comply with service plan, complete drug treatment, provide stable home, and maintain employment can support a finding that termination is in the child’s best interest).  We overrule Thomas’s sole point of error and affirm the trial court’s judgment.

 

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 1, 2007

[CV06]

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[1]               C.T. is not involved in this proceeding.

[2]               Thomas contends that the Department presented no medical evidence that the children tested positive for narcotics at birth.  However, caseworkers Laura White and Dawn Jock testified that A.R.R. and D.M.T. both tested positive at birth.  Thomas did not object to this testimony.  Moreover, the court was entitled to disbelieve Thomas’s denials that the children tested positive for narcotics.  See In the Interest of K.A.S., 131 S.W.3d 215, 229 (Tex. App.—Fort Worth 2004, pet. denied).