Affirmed and Memorandum Opinion filed January 25, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00137-CV
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IN THE INTEREST OF H.G.H., A MINOR CHILD
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 30032
M E M O R A N D U M O P I N I O N
Appellant, Dwight Holmes, appeals from the trial court=s judgment terminating his parental rights to his daughter H.G.H. and appointing Brazoria County Children=s Protective Services (ACPS@) sole managing conservator of H.G.H. In five issues, appellant challenges the legal and factual sufficiency of the evidence underlying the findings in the termination order, and the trial court=s decision to appoint CPS managing conservator of H.G.H., rather than the child=s paternal grandmother. We affirm.
Factual and Procedural Background
Appellant is the father of H.G.H, a female child born in February of 2004. At the time of H.G.H.=s birth, appellant was incarcerated in Brazoria County for possession of a firearm. During the first six months of her life, H.G.H. resided with her mother, Angelia Gaston, and her four year-old sister, A.G.H. H.G.H. is the youngest of Gaston=s four children. Gaston has an extensive history with CPS, dating back to 2001 and including allegations of drug use, mental instability, and neglectful supervision. Gaston=s children were removed from her custody on six prior occasions, and Gaston=s parental rights to her two oldest children were terminated prior to the birth of H.G.H.
On April 6, 2004, CPS received a referral alleging Gaston had taken Xanax and fallen asleep on the couch in her home, leaving H.G.H. and A.G.H. unsupervised. CPS caseworker Jennifer Gallion contacted Gaston via telephone on April 12. Gaston stated she was not willing to participate in family-based services; however, she was willing to meet with Gallion. During April through July of 2004, Gallion visited Gaston=s residence on at least seven occasions. Some of the visits were scheduled, and some were unannounced. H.G.H. was always present when Gallion visited Gaston=s home. Gallion later testified that Gaston=s home was always clean when she visited, and H.G.H. was not in immediate danger. Gallion saw no indication appellant was parenting H.G.H., or that H.G.H. was living with appellant.
Gallion made four visits to Gaston=s residence during May and June of 2004. Gaston verbally agreed to participate in limited family-based services, including drug and alcohol assessment, in-home training, and monitoring of her prescription medication for bipolar disorder. However, Gaston failed to participate in voluntary services. During late May, Gaston=s third child, A.G.H., became the subject of a custody dispute between Gaston and A.G.H.=s father, Phillip Harris. Gaston became increasingly frustrated with CPS and, during an in-home visit on June 10, Gaston told Gallion that she was going to stop taking her bipolar medication because CPS was involved in her life. Gallion returned to Gaston=s residence on June 16 and found A.G.H. unsupervised in the courtyard of the apartment complex. When Gaston refused to discuss A.G.H.=s lack of supervision, Gallion initiated a formal CPS investigation.
On July 7, 2004, A.G.H.=s father was granted temporary custody of A.G.H. H.G.H. continued to reside with Gaston. Gallion visited Gaston=s residence three times during the month of July. On July 19, Gaston signed a written agreement to participate in family services. After a subsequent visit by Gallion on July 29, Gaston severed all contact with Gallion. CPS staffed the case for non-emergency removal of H.G.H. On August 9, 2004, Gallion executed an affidavit describing her contacts with Gaston. In her affidavit, Gallion testified she made contact with Gaston on ten occasions, and Gaston was hostile and uncooperative on eight of those ten occasions. Gallion testified Gaston exhibited mood swings, mental instability, and inappropriate behavior. Gallion also described Gaston=s history with CPS and the fact that A.G.H. had been left unsupervised in the courtyard of the apartment complex. Gallion recommended H.G.H. be placed in protective custody based on Gaston=s unwillingness to cooperate with CPS and conduct which continued to place H.G.H. at substantial risk of harm.
On August 10, 2004, Texas Department of Family & Protective Services (ADFPS@) filed its original petition for protection of a child, conservatorship, and termination of the parental rights of appellant and Gaston to H.G.H. On August 12, Gallion spoke to appellant for the first time. Although appellant had been released from jail on or about April 1, 2004, Gallion had been told on numerous occasions that appellant was still incarcerated. When Gallion spoke to appellant on August 12, she assumed appellant had just been released.[1] During their conversation on August 12, appellant told Gallion he did not know where H.G.H. was, and he was concerned she had been given away. Appellant provided his contact information, consisting of his mother=s address in Angleton and a Houston telephone number. On August 19, appellant called Gallion and stated that Gaston had left H.G.H. and all of her possessions with appellant.
On August 24, 2004, the trial court issued temporary orders appointing CPS temporary managing conservator of H.G.H. The trial court ordered appellant to (1) submit to a psychological evaluation, (2) successfully complete parenting classes, (3) successfully complete counseling, (4) submit to drug and alcohol abuse assessment, (5) remain drug and alcohol free during the pendency of the termination suit, (6) maintain a safe and stable home environment, (7) comply with the terms of any service plan filed during the pendency of the termination suit, and (8) pay child support in the amount of one hundred dollars per month.
During that same month, August of 2004, appellant committed burglary in Harris County. Appellant was incarcerated on January 3, 2005. He plead guilty to burglary of a habitation and remained incarcerated throughout the underlying termination suit and submission of this case on appeal. Prior to his incarceration, appellant submitted to a psychological evaluation, but failed to complete any of the other court-ordered services. Appellant has an extensive criminal history dating back to 1996 and including arrests for possession of a controlled substance (1996), possession of marijuana (2003), possession of a firearm (2003), evading arrest (2004), and burglary (2005).
During late 2004, H.G.H.=s paternal grandmother, Sherrill Mullins, became involved in the termination proceeding. Prior to August of 2004, Mullins had no relationship with H.G.H. Mullins later testified she had not bonded with H.G.H. because she did not know if appellant was H.G.H.=s biological father. In October of 2004, after CPS had been appointed temporary managing conservator, Mullins attended a family group conference and requested a home study. CPS subsequently evaluated Mullins= life circumstances and ability to care for H.G.H. On January 25, 2005, CPS filed a Kinship Caregiver Home Assessment report recommending H.G.H. not be placed with Mullins due to concerns over Mullins= physical health and financial difficulties. In June of 2005, DNA testing confirmed appellant is the biological father of H.G.H. On July 26, 2005, Mullins intervened in the termination suit and petitioned the court to be named managing conservator of H.G.H.
The termination suit was tried without a jury on January 30, 2006. CPS caseworkers Jennifer Gallion, Elizabeth Shreeves, and Carolyn Davis testified on behalf of DFPS. Gallion testified about her increasing concerns over Gaston=s behavior, and appellant=s lack of involvement with H.G.H. during the months prior to August of 2004. Shreeves testified appellant visited H.G.H. four times after CPS was appointed temporary managing conservator, and appellant failed to pay child support or complete his court-ordered family services. Davis testified that during her involvement with H.G.H.=s case, appellant had no contact with H.G.H. and failed to complete any of his court-ordered services.
Appellant testified he did not want custody of H.G.H. after being released from jail; rather, he wanted Sherrill Mullins to have custody of the child. Mullins gave testimony regarding her involvement with H.G.H. and her desire to be appointed managing conservator. H.G.H.=s foster mother testified H.G.H. had bonded with her foster family and is developing normally in her current environment. Angelia Gaston did not appear in person, but did appear by and through her legal counsel.
On February 6, 2006, the trial court signed an order terminating the parental rights of appellant and Gaston to H.G.H. and appointing CPS sole managing conservator of H.G.H. The trial court found by clear and convincing evidence that appellant endangered the physical or emotional well-being of H.G.H., and termination of appellant=s parental rights was in H.G.H.=s best interest. See Tex. Fam. Code Ann. ' 161.001(1)(D)B(E),(2) (Vernon 2002).
Termination of Appellant=s Parental Rights to H.G.H.
In his first and second points of error, appellant argues the evidence is legally and factually insufficient to establish by clear and convincing evidence that he (1) knowingly placed or knowingly allowed H.G.H. to remain in conditions or surroundings which endangered her physical or emotional well-being; or (2) engaged in conduct or knowingly placed H.G.H. with persons who engaged in conduct which endangered her physical or emotional well-being. In his third point of error, appellant contends the evidence is legally and factually insufficient to establish by clear and convincing evidence that termination of H.G.H.=s relationship with appellant is in her best interest.
I. Standard of Review
The burden of proof in parental termination cases is by clear and convincing evidence. See Tex. Fam. Code Ann. ' 161.001; In re J.F.C., 96 S.W.3d 256, 265B66 (Tex. 2002). AClear and convincing evidence@ means the measure or degree of proof that 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 (Vernon 2002).
When reviewing the legal sufficiency of the evidence under this standard, we look at all the evidence in the light most favorable to the finding Ato determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.@ In re J.F.C., 96 S.W.3d at 266. We must assume the factfinder resolved disputed evidence in favor of its finding if a reasonable factfinder could do so. Id. We must disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id. However, because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. See id. (ADisregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.@). If, after conducting our review, we determine that a reasonable factfinder could not form a firm belief or conviction that the allegations were true, then we must conclude the evidence is legally insufficient. Id.
When reviewing a factual sufficiency challenge, the analysis is slightly different because we must consider all the evidence equally, both disputed and undisputed. Id. The court of appeals should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of the finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
II. Discussion
In Texas, to terminate a parent-child relationship, a trial court must find by clear and convincing evidence that the parent engaged in one of the grounds for termination listed in section 161.001(1) of the Texas Family Code, and that termination is in the best interest of the child. Tex. Fam. Code Ann. ' 161.001(1)B(2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
In this case, the trial court found two grounds supporting termination under section 161.001(1). First, it found appellant knowingly placed or knowingly allowed H.G.H. to remain in conditions or surroundings which endangered her physical or emotional well-being; and second, it found appellant engaged in conduct or knowingly placed H.G.H. with persons who engaged in conduct which endangered her physical or emotional well-being. See Tex. Fam. Code Ann. ' 161.001(1)(D)B(E). The court also found termination was in the best interest of the child. Id. ' 161.001(2).
A. Child=s Best Interest
In his third issue, appellant asserts there is legally and factually insufficient evidence to support the trial court=s finding that termination of appellant=s parental rights is in the best interest of H.G.H. The Texas Supreme Court has always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). The presumption is based upon a logical belief that the ties of the natural relationship of the parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible. Id. The natural right which exists between parents and their children is one of constitutional dimensions. Id. In order to rebut this presumption, there must be clear and convincing evidence of the natural parent=s present unfitness. In re U.P., 105 S.W.3d 222, 230 (Tex. App.CHouston [14th Dist.] 2003, pet denied).
The Texas Supreme Court has considered the following factors in determining whether the best interest of a child is served by keeping the child with its natural parent: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future physical and emotional danger to the child; (4); the parental abilities of the person seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) plans for the child by the individuals or agencies seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent=s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not exhaustive, nor is evidence required on all nine factors for the court=s finding. Id.
With these factors in mind, we review the evidence regarding H.G.H.=s best interest. H.G.H. is too young to express her desires. However, H.G.H. has bonded with her foster parents and eight year-old foster sister, and expresses a great deal of affection toward them. At the time of trial, H.G.H. had resided with her foster family for seven months. Her foster mother testified H.G.H. is on track developmentally, learning to speak and engaging in educational and social activities appropriate for a child her age. H.G.H.=s foster mother also testified that she and her husband have a stable home, love H.G.H., and wish to adopt her. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding evidence about placement plans and adoption are relevant to the best interest).
Appellant=s life choices have left him unable to provide a safe and stable home for H.G.H. The undisputed evidence establishes not only that appellant is unable to care for H.G.H., but that he has exhibited a pattern of conduct inconsistent with the very idea of child-rearing. See id. (finding termination in the best interest of the child where father failed to provide emotional or financial support and had an extensive criminal history which continued after child=s birth). Appellant has been incarcerated during the majority of H.G.H.=s life for crimes committed both before and after her birth. His offenses include possession of drugs, possession of a firearm, and, most recently, burglary. Appellant=s pattern of criminal conduct makes it likely that he will face incarceration again in the future. See In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Appellant has admittedly failed to maintain a stable home environment during the time when he was not incarcerated. CPS caseworkers had difficulty contacting him, and he gave conflicting testimony at trial regarding the location of his residence. Appellant further failed to complete the services ordered by the trial court, and failed to pay court-ordered child support.
Appellant=s excuses for his behavior are unpersuasive. Rather than taking responsibility for the burglary to which he pleaded guilty, appellant denies having any knowledge of the crime. Appellant also denies having knowledge of the trial court=s order to pay child support, even though he was present when the court issued its order. Regarding his failure to complete court-ordered services, appellant argues he could not have completed the services because he was in jail. Appellant was ordered to perform services in temporary orders issued by the trial court on August 24, 2004. Appellant was incarcerated on January 3, 2005. Elizabeth Shreeves, the CPS caseworker assigned to H.G.H. from September 2004 to July 2005, testified it was Avery possible@ for appellant to have gotten more involved with the services prior to his incarceration. Shreeves further testified she spoke to appellant during November of 2004, and appellant stated he wanted to wait until he had stable employment before scheduling his services. Additionally, appellant made no effort to continue his services while incarcerated.
Appellant has no permanent plan for H.G.H. Appellant testified he does not want custody of H.G.H. presently or after his release from jail. Rather, he wants his mother, Sherrill Mullins, to care for the child. In his brief, appellant argues at length that he can meet the physical and emotional needs of H.G.H. by having the child placed with Mullins. However, a home study conducted by CPS recommended against placement with Mullins due to her physical health and financial status. The record also indicates Mullins= interest in H.G.H. has been inconsistent over time. Further, Mullins testified she has not bonded with H.G.H. and visited the child only one time during the six months preceding the trial.
After reviewing the evidence, we conclude that the trial court=s determination that terminating appellant=s parental rights is in H.G.H.=s best interest is supported by clear and convincing evidence that is legally and factually sufficient. We overrule appellant=s third point of error.
B. Dangerous Conduct Under Section 161.001(1)(E)
In his second issue, appellant argues the evidence is legally and factually insufficient to support the trial court=s finding that appellant engaged in conduct or knowingly placed H.G.H. with persons who engaged in conduct which endangered her physical or emotional well-being. See Tex. Fam. Code Ann. ' 161.001(1)(E).
Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child=s physical or emotional well-being was the result of the parent=s conduct, including acts or omissions. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.CFort Worth 2003, no pet.). To constitute endangerment, the parental conduct need not be directed at the child specifically, and it need not have caused an actual injury to the child. Tex. Dept. Human Serv=s v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Rather, Aendanger@ means to expose to loss or injury; to jeopardize. Id. Imprisonment, standing alone, will not constitute endangerment. Id. However, if the evidence, including imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under section 161.001(1)(E) is supportable. Id. at 534; see also In re D.T., 34 S.W.3d 625, 637 (Tex. App.CFort Worth 2000, pet. denied) (holding that leaving child in foster care while jumping bail, writing bad checks, and being incarcerated was legally sufficient to establish endangering course of conduct). Endangerment may include parental conduct both before and after the child=s birth. In re S.F., 32 S.W.3d 318, 322 (Tex. App.CSan Antonio 2000, no pet.) (holding criminal behavior before child=s birth, coupled with misconduct during imprisonment, was sufficient to establish a course of conduct endangering the child); In re M.D.S., 1 S.W.3d 190, 198B99 (Tex. App.CAmarillo 1999, no pet.) (holding sentences for burglary and sex with a minor, combined with prior convictions of marijuana possession, established endangering course of conduct).
Here, the record contains evidence appellant engaged in a course of criminal conduct rendering him unable to provide for H.G.H.=s basic needs, and causing him to be absent during the majority of her life. The evidence also shows that during the time when appellant was not incarcerated, he failed to maintain a stable home or provide for H.G.H.=s support, even when ordered to do so by the trial court.
Appellant was released from jail and met his daughter for the first time on or about April 1, 2004. He was not incarcerated again until after CPS was appointed temporary managing conservator of H.G.H. on August 24, 2004. During April through August of 2004, appellant failed to establish a stable home and did little to provide for H.G.H.=s support. Appellant gave conflicting testimony at trial regarding the location of his residence after his release from jail. Appellant testified he lived with JoAnn Conley, the mother of his first child, and then moved to Houston. Appellant later testified he did not live with Conley, but only visited her while establishing a residence in Houston. Appellant also testified he lived in his girlfriend=s apartment in Houston while working in Freeport, but the telephone line at his girlfriend=s residence did not have an answering machine or caller I.D. Jennifer Gallion testified that when she spoke to appellant on August 12, he provided contact information consisting of a Houston telephone number and his mother=s address in Angleton.
Appellant also testified H.G.H. resided with him Aoff and on@ after his release from jail for the Amajority of the time@ until CPS was appointed temporary managing conservator. However, on cross-examination, appellant testified he could not remember the exact date or month when he became H.G.H.=s primary caregiver. Gallion testified she made numerous visits to Gaston=s residence during May to August of 2004 and saw no indication appellant was parenting HGH, or that HGH was living with appellant. Further, appellant called CPS on August 19, 2004 and stated Gaston had left H.G.H. and all of her possessions with him. The statements made by appellant on August 19 contradict his testimony that he had been H.G.H.=s primary caregiver during the preceding months.
In its temporary orders of August 24, 2004, the trial court appointed CPS temporary managing conservator of H.G.H. and informed appellant that in order to avoid the termination of his parental rights he was required to perform each of the following services: (1) submit to a psychological evaluation, (2) successfully complete parenting classes, (3) successfully complete counseling,(4) submit to drug and alcohol abuse assessment, (5) remain drug and alcohol free during the pendency of the termination suit, (6) maintain a safe and stable home environment, (7) comply with the terms of any service plan filed during the pendency of the termination suit, and (8) pay child support in the amount of one hundred dollars per month.
Appellant submitted to a psychological evaluation, but failed to complete, or even initiate, any of the remaining court-ordered services prior to his incarceration on January 3, 2005. DFPS argues, and we agree, that appellant is primarily interested in shirking his parental duties by having his mother care for his child. Appellant contacted CPS during November of 2004 to inquire about his mother=s home study,[2] yet he failed to take the court-ordered actions necessary for the care of his daughter and the preservation of his parental rights. Appellant offers numerous excuses for his failure to complete the court-ordered services. However, it is clear from the record that appellant could have completed substantially more, if not all, of his court-ordered services prior to his current incarceration.[3] The fact that appellant was willing to commit burglary and risk incarceration further demonstrates his lack of concern for the safety and security of his child. Appellant visited H.G.H. only four times after CPS was appointed temporary managing conservator, and has had no contact with H.G.H. since his incarceration in January 2005. Appellant testified at trial that he does not want custody of H.G.H after his release from prison. See In re S.M.L., 171 S.W.3d 472, 479B80 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (holding father=s lack of demonstrated concern, repeated incarceration, and shirking of parental responsibilities supported termination under subsection (E)).
The record also contains evidence of appellant=s criminal conduct. Appellant was arrested for numerous crimes, both before and after H.G.H.=s birth, including possession of a controlled substance (1996), possession of marijuana (2003), possession of a firearm (2003), evading arrest (2004), and burglary (2005). In his appellate brief, appellant makes two arguments pertaining to his criminal history.
First, appellant argues his arrests for possession of a controlled substance and possession of marijuana are not evidence of endangering conduct because they both occurred prior to the birth of H.G.H., and there is no evidence he used illegal drugs in H.G.H.=s presence. Appellant cites In re D.J.J. in support of his contention that his drug-related conduct did not endanger H.G.H. See In re D.J.J., 178 S.W.3d 424, 430 (Tex. App.CFort Worth 2005, no pet.) (holding evidence of father=s use of methamphetamines prior to child=s birth was insufficient evidence of endangering conduct). However, unlike appellant, the parent in In re D.J.J. was not incarcerated for the additional offenses of possession of a firearm and burglary. See id. at 426; see also In re S.M.L., 171 S.W.3d at 479 (considering parent=s criminal behavior both before and after child=s birth as evidence of a course of conduct endangering the child). Further, the parent in In re D.J.J. was incarcerated for drug offenses during the entire life of his child, up to and including the time of trial. Id. Appellant, however, was released from jail when H.G.H. was approximately six weeks old and afforded an opportunity to improve his life circumstances and provide for his child. Instead, appellant chose to commit burglary. Contrary to appellant=s argument, we do not consider his drug offenses in a vacuum. Viewing the record as a whole, we find that appellant=s drug offenses and burglary conviction are evidence of his ongoing course of criminal conduct, both before and after the birth of H.G.H. See Boyd, 727 S.W.2d at 534.
In his second argument, appellant asserts, without citing any authority, that his criminal activity Ais limited,@ and the burglary for which he is currently incarcerated is not a violent crime. Appellant further argues that H.G.H. was not affected by the burglary because she was not with appellant when he committed the offense. Appellant committed burglary after the birth of H.G.H. and during a time when he should have been improving his life circumstances. Further, we find it impossible to believe that H.G.H. has not been affected by her father=s conduct which caused them to be separated since January of 2005.
Appellant=s repeated incarceration, continuing propensity towards criminal conduct, failure to support H.G.H., and failure to complete, or make a good-faith effort to complete, the court-ordered family services constitute a course of conduct which endangered the physical or emotional well-being of H.G.H. See id. Therefore, after reviewing the evidence, we conclude the trial court=s determination that appellant engaged in conduct or knowingly placed H.G.H. with persons who engaged in conduct which endangered her physical or emotional well-being is supported by clear and convincing evidence that is legally and factually sufficient. Accordingly, appellant=s second point of error is overruled.
Because appellant=s parental rights can be terminated with a finding of best interest of the child and either of the two 161.001(1) grounds challenged by appellant, we need not address appellant=s first point of error. See In re U.P., 105 S.W.3d at 236; In re J.T.G., 121 S.W.3d at 127B28.
Appointment of CPS as Sole Managing Conservator of H.G.H.
In his fourth and fifth issues, appellant argues there is insufficient evidence to support the trial court=s finding that appointment of CPS, rather than Sherrill Mullins,[4] as sole managing conservator of H.G.H. is in the best interest of the child. Section 161.207 of the Family Code provides that A[i]f the court terminates the parent-child relationship with respect to both parents or the only living parent, the court shall appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a licensed child-placing agency, or an authorized agency as managing conservator of the child.@ Tex. Fam. Code Ann. ' 161.207(a) (Vernon 2002). The best interest of the child is the primary consideration in determining issues of conservatorship. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002); see also In re J.R.P., 55 S.W.3d 147, 151-52 (Tex. App.CCorpus Christi 2001, pet. denied) (holding appointment of Department of Protective and Regulatory Services as managing conservator of child, rather than biological grandfather, was in child=s best interest). We give wide latitude to a trial court=s decision on custody, control, possession, and visitation matters. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We will reverse the trial court=s order only if it appears from the record as a whole that the trial court abused its discretion. Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
On July 26, 2005, Mullins intervened in the termination suit requesting appointment as managing conservator of H.G.H. The trial court subsequently terminated the parental rights of both of H.G.H.=s natural parents and appointed CPS as her sole managing conservator. Appellant contends the trial court erred in denying Mullins= petition because Mullins has a safe and stable home; Mullins is gainfully employed; and it is in H.G.H.=s best interest to maintain a connection with her biological family. DFPS argues H.G.H=s best interests are served by remaining with her foster family because Mullins failed to demonstrate a consistent interest in H.G.H. and, by the time of trial, had not bonded with the child. DFPS also points to the testimony of H.G.H.=s foster mother as evidence that H.G.H. resides in a safe and stable home and has bonded with a loving foster family who seeks to adopt her.
At trial, Mullins testified she had not bonded with H.G.H. Mullins further testified she had limited contact with H.G.H. and did not want to bond with her before DNA testing confirmed appellant was H.G.H.=s father in June of 2005. Mullins visited H.G.H. two to three times after August of 2004, and only once during the six months preceding trial. CPS caseworker Carolyn Davis testified Mullins visited H.G.H. on December 29, 2005 but ended her visit early because H.G.H. did not recognize Mullins and started to cry. Davis testified H.G.H. should remain with her adoptive family with whom she has bonded. Sherri Simmons, a CASA program director in Brazoria County, testified CASA did not recommend placement with Mullins because Mullins= home study was not approved, and Mullins has had limited contact with H.G.H.
H.G.H.=s foster parents are gainfully employed and maintain a stable home environment. They involve their children in a variety of activities and place a high degree of importance on education. H.G.H.=s foster mother testified she took two months off from work to bond with H.G.H. when CPS placed H.G.H. with her family. H.G.H. is developing normally and has bonded with her foster parents and eight year-old foster sister. H.G.H.=s foster mother testified she and her husband love H.G.H. and seek to adopt her.
Based on our review of the record, we hold that the trial court did not abuse its discretion in appointing CPS sole managing conservator of H.G.H. Accordingly, appellant=s fourth and fifth points of error are overruled.
Having considered appellants points of error necessary to final disposition of this appeal, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed January 25, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
[1] At trial, Gallion testified she had seen appellant prior to August 12, 2004 but did not know who he was. Gallion testified: ACome to find out, I had actually seen [appellant] and did not know it was him at one point in time. I was leaving [Gaston=s] apartment, and he was going up to it. I found out when I met [appellant] later on, that that [sic] was actually him. So I=m not really sure when he was in jail and when he wasn=t.@
[2] CPS conducted a home study to evaluate Sherrill Mullins= life circumstances and ability to care for H.G.H.
[3] Five months elapsed between the time the trial court issued its temporary orders and appellant=s incarceration on January 3, 2005. CPS caseworker Elizabeth Shreeves testified she did not know if appellant could have completed his services prior to his incarceration; however, he definitely could have gotten more involved. Shreeves further testified appellant told her that he was waiting to schedule his services.
[4] Mullins filed a notice of appeal in this case; however, her notice of appeal was not timely filed. This is an accelerated appeal from a judgment signed February 6, 2006. The notice of appeal was due February 27, 2006. See Tex. R. App. P. 26.1(b). Mullins, however, filed her notice of appeal on March 14, 2006, a date within fifteen days of the due date for the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that a motion for extension of time is Anecessarily implied@ when the perfecting instrument is filed within fifteen days of its due date). Mullins did not file a motion to extend time to file the notice of appeal. While an extension may be implied, Mullins is still obligated to come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Center Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.CHouston [14th Dist.] 1998, no pet.). Further, Mullins failed to file an appellate brief. See Tex. R. App. P. 38.1, 38.8(a). Therefore, Sherrill Mullins= appeal is dismissed for want of jurisdiction and want of prosecution. See Tex. R. App. P. 26.1(b), 38.8(a)(1).