AFFIRM; and Opinion Filed November 26, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00666-CV
IN THE INTEREST OF J.J., M.J., PI.P., AND PA.P., CHILDREN
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-16-00916-W
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Boatright
This is an appeal from the termination of the parental rights of M.P. (“Mother”) to her four
children, J.J., M.J., and twins, Pi.P. and Pa.P. Mother raises seven appellate issues, challenging the
trial court’s failure to make certain findings required by the Texas Family Code, the sufficiency of
the evidence to support the termination of her rights, the effectiveness of her attorney’s assistance,
and the appointment of the Texas Department of Family and Protective Services (the
“Department”) as managing conservator of the children. We affirm the trial court’s judgment.
Background
The four children and Mother lived with Mother’s parents (“Grandmother,” “Grandfather,”
and “Grandparents”), Mother’s brother, and her younger sister. The Texas Department of Family
and Protective Services (the “Department”) received a referral that Mother and others in the
household had been using illegal drugs while caring for the children. The Department began an
investigation and, after both Mother and Grandmother tested positive for methamphetamine, the
Department removed the children from the home. In October 2016, the Department was named
temporary managing conservator of the children. The Choctaw Tribe intervened in the suit because
J.J. and M.J. are “Indian Children” as defined by the Indian Child Welfare Act.
The Department created a Family Service Plan that required Mother to participate in a
psychological evaluation, drug treatment services, individual counseling, and parenting classes. In
addition, the plan stated that Mother “shall submit to random UA/Hair strand drug/alcohol
screenings within 4 hours of the request. Any missed requests for drug tests will be considered as
positive results.” After a hearing, the trial court issued its Temporary Orders, which specifically
ordered Mother to comply with the Department’s “original, or any amended, service plan during
the pendency of this suit.” The Temporary Orders also required Mother to pay the Department
support for the children.
Mother completed her initial drug treatment and counseling plans, but she relapsed, and
between July and October 2017 she tested positive for methamphetamine three times. In October,
she sought an extension of the statutory dismissal deadline for the case in an effort to achieve
sobriety and a monitored return of the children. The trial court granted the extension. But from that
month forward, Mother refused to submit to drug testing
In April 2018, the parties entered into a Mediated Settlement Agreement (“MSA”). In the
MSA, the parties agreed to a placement hearing for the trial court to determine whether placement
of the children with Grandparents would be in the children’s best interest. If the court approved
the placement with Grandparents, then they would become joint managing conservators of the
children, and Mother would be appointed a possessory conservator. If the trial court denied
placement with Grandparents, then Mother’s parental rights would be terminated pursuant to
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section l6l.001(b)( l )(O) of the Family Code. The parties agreed that such a termination would be
in the best interest of the children.
Following the placement hearing, the court made findings on the record including: Mother
had an extensive history of drug use including methamphetamines; following the extension granted
Mother, she relapsed and had refused all drug tests since that time; when the children were
removed, all the adults in the home—grandparents, parents, and adult uncle—were using
methamphetamine while the children were living there; Grandfather recently tested positive for
methamphetamine; and “it would be improper, a danger to these kids to place them with the
grandparents.” The court went on to find that Mother had committed the conduct defined in section
161.001(b)(1)(O) and that termination of the parent-child relationship between Mother and the
children was in the best interest of the children. The MSA was incorporated into the court’s Order
of Termination.
Mother appeals.
Findings or Dismissal Under Section 263.401
In her first issue, Mother contends that the trial court failed to make findings showing that
its decision to retain the case on its docket after the statutory dismissal date was necessitated by
“extraordinary circumstances,” as required by section 263.401(b) of the Texas Family Code.
Absent such findings, Mother argues, the case must be dismissed. We disagree.
Suits for termination of parental rights are not permitted to linger indefinitely on trial court
dockets. A trial court must commence trial in those suits before the first Monday following the
first anniversary of the date the court rendered a temporary order appointing the department as
temporary managing conservator. TEX. FAM. CODE ANN. § 263.401(a). If trial has not commenced
by that date, the trial court may not retain the case on its docket unless it finds that “extraordinary
circumstances necessitate the child remaining in the temporary managing conservatorship of the
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Department and that continuing the appointment of the Department as temporary managing
conservator is in the best interest of the child.” Id. § 263.401(b). If the court makes those findings,
it may grant an extension of up to 180 days. Id. In addition, at the time the Department initiated
this action, the Family Code provided that:
A party to a suit under this chapter who fails to make a timely motion to dismiss
the suit under this subchapter waives the right to object to the court’s failure to
dismiss the suit. A motion to dismiss under this subsection is timely if the motion
is made before the trial on the merits commences.
Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, sec. 263.402, 1997 Tex. Gen. Laws 2108,
2113–14 (amended 2017) (current version, omitting this provision, at TEX. FAM. CODE ANN.
§ 263.402).
The parties agree that the dismissal date for this case fell on October 16, 2017, which was
the first Monday after the first anniversary of the date the Department was appointed temporary
managing conservator of the children. One week before that date, Mother filed a motion for
continuance and to extend the dismissal date. She alleged that she had substantially completed her
required services and that extraordinary circumstances required the extension. Testimony at trial
from Grandmother confirmed that Mother sought the extension at the request of the Choctaw
Tribe, which was “considering a monitored return” and wanted Mother to be living in her own
place and holding her own job. The trial court granted the extension.
Mother now complains that the trial court granted the extension she sought without making
findings of extraordinary circumstances. Our review of the record does not indicate Mother
requested such findings or objected to their absence. Nor did she file a timely—or any—motion to
dismiss the case when the court did not make the findings. Pursuant to the statute governing this
case, Mother has waived the right to object now to the court’s failure to dismiss the suit. Id. And
pursuant to Texas Rule of Civil Procedure 33.1(a)(1), she has waived any complaint about the
absence of specific written.
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We overrule Mother’s first issue.
Sufficiency of the Evidence
Mother challenges the legal and factual sufficiency of the evidence supporting the trial
court’s termination of her parental rights. We apply the clear and convincing evidence standard of
proof in parental termination cases, asking whether the proof is such that a reasonable fact finder
could have formed a firm belief or conviction about the truth of the allegations. In re J.F.C., 96
S.W.3d 256, 263–64 (Tex. 2002). In our legal sufficiency review, we consider all the evidence in
the light most favorable to the finding. Id. at 266. We assume that the fact finder resolved disputed
evidence in favor of the finding if a reasonable fact finder could do so, and we disregard all contrary
evidence that a reasonable fact finder could have disbelieved or found incredible. Id. In our factual
sufficiency review, we consider disputed and conflicting evidence and conclude the evidence is
insufficient only if, in light of the entire record, the disputed evidence is so significant that a
reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Id.
Termination Under Family Code Section 161.001(b)(1)(O)
In Mother’s second and third issues she challenges the legal and factual sufficiency of the
evidence supporting termination of her parental rights under section 161.001(b)(1)(O). This
provision states that a trial court may order termination of the parent-child relationship if it finds
by clear and convincing evidence that the parent has:
failed to comply with the provisions of a court order that specifically established
the actions necessary for the parent to obtain the return of the child who has been
in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the
child’s removal from the parent under Chapter 262 for the abuse or neglect of the
child.
TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Mother argues specifically that no court order required
her to re-engage in drug testing with the Department after she had completed her initial service
requirements.
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The Department argues first that Mother agreed in the MSA to termination under
subsection (O) if the trial court denied placement with Grandparents. The MSA is binding on
Mother because it provided in boldfaced type and capital letters that it is not subject to revocation,
and it was signed by Mother and her attorney. TEX. FAM. CODE ANN. § 153.0071(d). The trial court
considered the MSA’s condition of placement with Grandparents but rejected that placement,
expressing concern for the safety of the children. The trial court then incorporated the MSA into
its Order of Termination. We agree with the Department that it is entitled to judgment on the MSA.
Id. § 153.0071(e).
However, we conclude that the evidence would be sufficient even if Mother had not
conditionally agreed to the termination. In addition to completing drug treatment services,
Mother’s Family Service Plan required her to submit to random drug testing at the request of the
Department. And the trial court’s Temporary Orders ordered her to comply with the requirements
of the service plan “during the pendency of this suit.” Thus, Mother remained under a court order
to comply with the Department’s requests for drug tests throughout the end of 2017 and early 2018,
until her rights were terminated following the placement hearing. It is undisputed that she refused
to comply with those requests. Thus, whether we consider only the evidence supporting the court’s
judgment or all the evidence in the record, we conclude that a reasonable fact finder could have
formed a firm belief or conviction that Mother failed to comply with the provisions of a court order
specifically establishing her obligations to obtain return of the children. In re J.F.C., 96 S.W.3d at
263–64.
Finally, Mother testified that she did not pay any child support to the Department as she
was ordered to do by the trial court.
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The evidence is legally and factually sufficient to support termination of Mother’s parental
rights under section 161.001(b)(1)(O) of the Texas Family Code. We overrule Mother’s second
and third issues.
Best Interest of the Children
In her fourth and fifth issues, Mother argues that the evidence was legally and factually
insufficient to support the trial court’s determination that termination was in her children’s best
interest. She relies on In re J.W., 152 S.W.3d 200, 207 (Tex. App.—Dallas 2004, pet. denied),
which held that there is a strong presumption that a child’s best interest is served by keeping
custody in the natural parent. In fact, though, Mother’s arguments are not in favor of her own
custody—they are in favor of placing the children with her parents. She points to their long
marriage and their ability to provide for the children financially. But as the Department stresses,
she agreed in the MSA that termination would be in the best interest of the children if the trial
court denied placement with Grandparents. Because the trial court denied that placement, the
Department is entitled to judgment on the basis of the MSA on this ground as well.
Again, the evidence would be sufficient even if Mother had not conditionally agreed that
termination was in the children’s best interest. The trial court’s findings focus on the history of
drug use by Mother and her parents. Although all three had been through drug counseling, at the
time of the placement hearing Mother was refusing to take drug tests, Grandmother missed a test,
and Grandfather failed a test. “A parent’s drug use, inability to provide a stable home, and failure
to comply with a family service plan support a finding that termination is in the best interest of the
child.” In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). We conclude
that a reasonable factfinder could have formed a firm belief or conviction that termination of the
children’s parental rights was in the children’s best interest. In re J.F.C., 96 S.W.3d at 263–64.
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The evidence was legally sufficient to support the trial court’s finding that placement with
Grandparents was not in the children’s best interest.
The record contains some conflicting evidence on this issue. Grandfather argued that his
positive drug test before the placement hearing was incorrect, but the trial court could disbelieve
Grandfather’s denial of drug usage. And although Mother and Grandparents testified that
placement with Grandparents was in the children’s best interest, the Department’s caseworker, the
children’s foster mother, and the children’s guardian /attorney ad litem all testified to the contrary.
All three of those unrelated witnesses testified it would be in the children’s best interest to remain
in foster care, and the trial court could have believed their testimony. We conclude that, viewed in
light of the entire record, any disputed evidence that a reasonable factfinder could not have
resolved in favor of the best-interest finding was not so significant that the factfinder
could not reasonably have formed a firm belief or conviction. Id. The evidence was factually
sufficient to support the trial court’s finding.
We overrule Mother’s fourth and fifth issues.
Ineffective Assistance of Counsel
In her sixth issue, Mother contends she received ineffective assistance of counsel in the
trial court. Specifically, she argues that inclusion of the MSA provision agreeing to termination
under section 161.001(b)(1)(O) shows that her attorney lacked either “a full understanding of the
evidence, or lack thereof” or “a full understanding of the evidence required to terminate parental
rights pursuant to Section 161.001(b)(1(O).”
Mother had a right to counsel in the trial court. The Texas Supreme Court has held that this
right necessarily includes the right to effective assistance of counsel In re M.S., 115 S.W.3d 534,
550 (Tex. 2003). Given the heightened standards employed in reviewing cases involving
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termination of parental rights, the Supreme Court has directed use of the criminal standard for
ineffective assistance of counsel in these cases:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Id. at 545 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Mother’s argument in this issue depends entirely upon her contention that the evidence at
trial was legally and factually insufficient to support termination of her parental rights. But we
have concluded that clear and convincing evidence supported that termination. Accordingly,
counsel’s purported “lack of understanding” of the legal status of that evidence cannot support
Mother’s charge of ineffective assistance in this case.
In addition, by signing the provision at issue, Mother’s attorney obtained the possibility of
placement of her children with Grandmother, which was Mother’s desired result. However, given
the evidence before the trial court, placement with Grandmother was never a certain outcome. The
trial court’s decision to the contrary did not render Mother’s attorney’s assistance deficient or show
that in signing the MSA he was not functioning as the counsel guaranteed by the Sixth
Amendment. Id.
We overrule Mother’s sixth issue.
Appointment of the Department as Conservator
In her seventh issue, Mother challenges the appointment of the Department—rather than
Grandmother—as managing conservator of the children. She argues that her mother had submitted
negative drug tests “for the majority of the case” and that her father had submitted negative drug
tests “with the exception of one test in February 2018.” She argues further that unidentified
“safeguards” could be put in place to protect the children from Grandfather. She asks us to
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conclude that appointment of Grandmother alone or Grandparents together would not significantly
impair the children’s physical health or emotional development.
If the trial court terminates the parental rights of both parents, as the court did here, it must
appoint “a suitable, competent adult, the Department of Family and Protective Services, or a
licensed child-placing agency as managing conservator of the child.” TEX. FAM. CODE ANN.
§ 161.207(a). The trial court appointed the Department as managing conservator of all four
children in this case. We review this conservatorship determination for an abuse of discretion,
reversing only if we determine it was arbitrary or unreasonable. In Interest of N.T., 474 S.W.3d
465, 479 (Tex. App.—Dallas 2015, no pet.). A significant part of the trial court’s inquiry at trial
was whether Mother’s parents had shown themselves to be appropriate conservators for the
children. Although there was evidence that Grandmother had maintained sobriety for a significant
period of time, the evidence was undisputed that she missed a drug test the December before trial
and then cut her hair so short that, she acknowledged, it could affect drug testing results. And the
following month, Grandfather failed a drug test. Although both Grandparents denied any continued
involvement with drugs at the time of trial, the trial court could reasonably have concluded that
the evidence raised a significant risk that Grandparents—alone or together—would not be suitable,
competent conservators of the children. We discern no abuse of discretion in the court’s
appointment of the Department as managing conservators instead of the children’s maternal
Grandparents.
We overrule Mother’s seventh issue.
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Conclusion
We have overruled each of Mother’s issues. We affirm the trial court’s judgment.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE
180666F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.J., M.J., PI.P., On Appeal from the 304th Judicial District
AND PA.P., CHILDREN Court, Dallas County, Texas
Trial Court Cause No. JC-16-00916-W.
No. 05-18-00666-CV Opinion delivered by Justice Boatright.
Justices Bridges and Brown participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 26th day of November, 2018.
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