Full Opinion (html_with_citations)

                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00074-CV




            IN THE INTEREST OF K.A.N.C.
              AND N.A.K.C., CHILDREN




       On Appeal from the County Court at Law #1
                 Gregg County, Texas
            Trial Court No. 2013-1530-DR




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                           MEMORANDUM OPINION
          After a bench trial, Shelia’s parental rights to two-year-old K.A.N.C. and to one-year-old

N.A.K.C. 1 were terminated on August 5, 2014. The termination order was based, among other

things, on Shelia’s failure “to comply with the provisions of a court order that specifically

established the actions necessary for [Shelia] to obtain the return of the children . . . .” The order

also indicates that, based on clear and convincing evidence, termination of the parent-child

relationship was in the children’s best interests. We affirm the trial court’s order because (1) the

denial of Shelia’s extension request was proper and (2) sufficient evidence established that

termination was in the children’s best interests.

I.        Background

          The Department of Family and Protective Services (the Department) received an initial

intake on Shelia in July 2013 stemming from concerns regarding Shelia’s mental health and the

concomitant risk related to her newborn child, N.A.K.C. At that time, Shelia reported feelings of

depression and complained of chaos within her family and in her relationship with the children’s

father.

          On her release from the hospital following N.A.K.C.’s birth, Shelia and the children lived

with Shelia’s mother. Shelia was unemployed. In a separate investigation of Shelia’s mother,

the Department discovered that the mother was using illegal drugs in the home while the children

were present. Thereafter, in August 2013, the children were removed from the home, the


1
 We refer to appellant as “Shelia” and to the children by their initials in order to protect the identities of the children.
See TEX. R. APP. P. 9.8. The children’s father voluntarily relinquished his parental rights and is not a party to this
appeal.

                                                             2
Department was named temporary managing conservator of the children, and a family service

plan was instituted with the permanency goal of family reunification. By its terms, the plan was

scheduled to be completed on August 11, 2014. 2

         In October 2013, eighteen-year-old Shelia underwent psychological testing by

Dr. Winsted pursuant to a court order. Dr. Winsted’s report discloses that Shelia was physically

abused and neglected as a child and lacked a positive role model from which she could learn the

essential parenting skills necessary to raise two small children. Shelia evidenced “clinically

significant symptoms of anxiety, depression, posttraumatic symptomatology, thought confusion,

social phobia, and withdrawal.” Additionally, Shelia was suffering significant personal distress

and manifested symptoms of “Avoidant, Borderline, Paranoid, Schizoid and Schizotypal

Personality traits with depressive and passive aggressive features.” Although Shelia expressed

an understanding of the importance of placing her children’s needs above her own, that

understanding was not apparent in Shelia’s treatment of the children. Shelia completed the

eighth grade with no further education or training, had no occupational history, and was

experiencing financial problems. As a result, “[Shelia] would likely have difficulty meeting the




2
 The family service plan required that Sheila complete the following tasks: (1) obtaining mental-health treatment
through Community Healthcore or a private doctor, (2) seeking and maintaining legally verifiable employment,
(3) attending at all court hearings and meetings regarding the children, (4) obtaining a GED by participating in
classes through the Literacy Council, (5) completing required Department paperwork, (6) participating in random
drug screens, (7) participating in drug rehabilitation and drug counseling on failure of a drug screen,
(8) demonstrating ability to arrange and keep appointments with providers listed on the plan, (9) maintaining a safe
and stable home for at least six months for herself and the children, (10) participating in individual counseling with
Stenet Frost, (11) participating in parenting classes offered at the Child Protective Services (CPS) office,
(12) participating in a psychological evaluation with Dr. Don Winsted, and (12) participating in Dr. Winsted’s
therapeutic parenting classes.

                                                          3
practical needs of her children,” and was noted by Dr. Winsted to have an inadequate support

system. 3

        Although the family service plan was implemented on August 16, 2013, Shelia had only

completed the required psychological evaluation and begun counseling sessions by December

2013. 4 She failed to participate in Winsted’s parenting group and did not complete her GED.

Shelia was able to obtain employment at Walmart for a short period of time, but was unable to

maintain that employment. Shelia was, however, able to secure her own residence, although it

was sparsely furnished, with no stove or refrigerator.               A potentially dangerous gas spigot

protruded from the residence’s floor, and there were cables on the floor which were also

potentially dangerous to the children. Shelia was eventually able to place a refrigerator in the

residence, although the refrigerator was infested with roaches and the water supply had been

turned off. Jennifer Sipes, Shelia’s conservatorship worker, opined that, as of July 10, 2014,

Shelia’s home was not a safe and stable environment for the children.

        By the time of trial on August 4, 2014, Shelia had made additional progress toward

completing the goals set out in her family service plan.                She had completed the required

parenting classes at the CPS office and had participated in approximately eight counseling

sessions. Shelia was re-employed at Walmart and had rented a new apartment with a scheduled

move-in date of August 8, 2014. Shelia visited her children regularly.


3
Shelia and the children were initially living with Shelia’s mother. In its most recent investigation of Shelia’s
mother, the Department concluded that the mother tested positive for cocaine and that she admitted to using
marihuana in the home she shared with Shelia and her grandchildren.
4
 Shelia also saw a physician regarding medication for her mental health issues. However, because Shelia was
pregnant at the time of this appointment, she was prescribed no medication.
                                                       4
       Although drugs were never an issue for Shelia, she was aware that both her mother and

her grandmother used marihuana, and she left the children with her mother in spite of this

knowledge. After the birth of N.A.K.C., Shelia also began a relationship with a new partner who

was arrested in April 2014 for a parole violation.

II.    Standard of Review

       The burden of proof in parental-rights termination proceedings is clear and convincing

evidence. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re J.F.C.,
96 S.W.3d 256
, 264 (Tex.

2003). The evidence is clear and convincing when the proof is such that it produces in the mind

of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be

established by the State. In re J.O.A.,
283 S.W.3d 336, 344
 (Tex. 2009).

       In a legal sufficiency review, we consider all the evidence in the light most favorable to

the findings to determine whether the fact-finder could reasonably have formed a firm belief or

conviction that the grounds for termination were proven. In re J.P.B.,
180 S.W.3d 570, 573

(Tex. 2005) (per curiam); In re J.L.B.,
349 S.W.3d 836, 846
 (Tex. App.—Texarkana 2011, no

pet.). We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the

finding, if a reasonable fact-finder could do so, that it disregarded evidence that a reasonable

fact-finder could have reasonably disregarded, and that it disbelieved the testimony of any

witness whose credibility could reasonably be doubted. J.P.B.,
180 S.W.3d at 573
.

       In our review of factual sufficiency, we give due consideration to evidence the trial court

could have reasonably found to be clear and convincing. In re C.H.,
89 S.W.3d 17, 27
 (Tex.

2002). If, in weighing the disputed evidence, the fact-finder could have reasonably resolved the

                                                 5
conflicts to form a firm conviction that allegations concerning the grounds for termination were

true, then the evidence is factually sufficient, and the termination findings must be upheld.
Id.
 at

18–19. In applying this standard in light of the “clear and convincing” language required by

Section 161.001 of the Texas Family Code, we must be careful not to “‘be so rigorous that the

only factfindings that could withstand review are those established beyond a reasonable doubt.’”

In re R.A.L.,
291 S.W.3d 438
, 443 (Tex. App.—Texarkana 2009, no pet.) (quoting In re H.R.M.,
209 S.W.3d 105, 108
 (Tex. 2006) (per curiam)).

III.   Denial of Extension Request Was Proper

       The Texas Family Code sets forth strict guidelines governing the Department’s

prosecution of    actions to terminate parental rights or to have the Department designated

conservator. See TEX. FAM. CODE ANN. § 263.401 (West 2014). Termination suits must be

dismissed on the first Monday after the first anniversary of the date the Department was

appointed temporary managing conservator. Id. Although the trial court has the discretion to

grant a one-time 180-day-extension of this statutory deadline, such extension may only be

granted based on proof of extraordinary circumstances:

       Unless the court has commenced the trial on the merits, the court may not retain
       the suit on the court’s docket after the time described by Subsection (a) unless the
       court finds that extraordinary circumstances necessitate the child remaining in the
       temporary managing conservatorship of the department and that continuing the
       appointment of the department as temporary managing conservator is in the best
       interest of the child. If the court makes those findings, the court may retain the
       suit on the court’s docket for a period not to exceed 180 days after the time
       described by Subsection (a).

TEX. FAM. CODE ANN. § 263.401(b).            If the court does not make specific findings of

extraordinary circumstances, the court is not permitted to retain the suit on its docket past the
                                                 6
one-year time frame. In re Dep’t of Family & Protective Serv.,
273 S.W.3d 637, 643
 (Tex.

2009). The trial court’s ruling on an extension request under Section 263.401(b) is reviewed

under an abuse of discretion standard. In re A.J.M.,
375 S.W.3d 599, 604
 (Tex. App.—Fort

Worth 2012, pet. denied); In re D.W.,
249 S.W.3d 625, 647
 (Tex. App.—Fort Worth 2008), pet.

denied,
260 S.W.3d 462
 (Tex. 2008) (per curiam). A trial court abuses its discretion when it acts

without reference to any guiding rules or principles. Low v. Henry,
221 S.W.3d 609, 620
 (Tex.

2007).

          On July 10, 2014, the trial court conducted a hearing on Shelia’s motion for an extension

of the one-year dismissal date of August 11, 2014. The request was based on Shelia’s need to

complete the family service plan and to improve the living conditions of her home for the

children. Shelia indicated that she could meet the Department’s expectations if given additional

time. 5

          Shelia acknowledges that, typically, a parent’s tardy compliance with a family service

plan does not constitute extraordinary circumstances. See In re O.R.F.,
417 S.W.3d 24, 42
 (Tex.

App.—Texarkana 2013, pet. denied) (failure to begin complying with family service plan until

several weeks before trial does not constitute extraordinary circumstance when requirements

necessary to obtain child’s return were known well in advance); Shaw v. Tex. Dep’t of Family &

Protective Servs., No. 03-05-00682-CV,
2006 WL 2504460
, at *8 (Tex. App.—Austin Aug. 31,




5
Since the time of the previous hearing in May 2014, Shelia had switched jobs from Walmart on Estes Parkway to
Walmart on Fourth Street. Shelia had also obtained various additional items for her home, as requested by the
Department.
                                                     7
2006, pet. denied) (mem. op.) (failing to make progress on service plan for eight months did not

amount to “extraordinary circumstances” that authorized continuance).

       Here, however, Shelia maintains that her initial starting point for implementation of the

service plan constitutes extraordinary circumstances. She cites to the fact that she was only

eighteen years old when the plan was thrust upon her and that she had never before been required

to provide a home and support to any children (on her own) prior to this case. Shelia also cites to

her limited education and argues that to expect her to obtain employment with appropriate

income and a home for her children in less than a year was “essentially asking the impossible.”

        There is no doubt that the service plan was aggressive and presented some difficult

hurdles for Shelia. She proved, though, that she was able to comply with its requirements when

she chose to do so. Further, Shelia was provided with information that would have enabled her

to receive necessary support and assistance, including food stamps, WIC, Medicaid, medical

transportation, bus service for rural transportation, counseling, and help with budgeting. Shelia

cites no authority to support her proposition that a parent’s age and family background constitute

extraordinary circumstances sufficient to permit the children to remain in foster care.

       The determination of whether to grant an extension in a case such as this must be

centered on the children’s best interests. See TEX. FAM. CODE ANN. § 263.401(b); In re A.J.M.,
375 S.W.3d 599, 604
 (Tex. App.—Fort Worth 2012, pet. denied). At the time of the hearing in

this case, the children had been in foster care for almost an entire year. The trial court declined

to extend that period for another six months. Shelia was made aware of the requirements

necessary for the return of the children in August 2013, but made little progress in fulfilling

                                                 8
those requirements until only weeks before trial.       Under these circumstances, we cannot

conclude that the trial court’s refusal to grant Shelia’s extension request was an abuse of

discretion.

IV.    Sufficient Evidence Established that Termination Was in the Children’s Best
       Interests

       To uphold the termination finding, we must also determine whether the Department

proved, by clear and convincing evidence, that termination of Shelia’s parental rights was in the

children’s best interests. See TEX. FAM. CODE ANN. § 161.001. There is a strong presumption

that a child’s interest is best served by preserving conservatorship in the natural parent. In re

R.R.,
209 S.W.3d 112, 116
 (Tex. 2006) (per curiam); J.L.B.,
349 S.W.3d at 848
.                That

presumption can be overcome, however, with clear and convincing evidence to the contrary.

R.R.,
209 S.W.3d at 116
; J.L.B.,
349 S.W.3d at 848
.

       A number of factors may be considered in determining the best interest of the child,

including

       (1) the desires of the child, (2) the emotional and physical needs of the child now
       and in the future, (3) the emotional and physical danger to the child now and in
       the future, (4) the parental abilities of the individuals seeking custody, (5) the
       programs available to assist these individuals, (6) the plans for the child by these
       individuals, (7) the stability of the home, (8) the acts or omissions of the parent
       that may indicate the existing parent-child relationship is not a proper one, and
       (9) any excuse for the acts or omissions of the parent.

In re K.S.,
420 S.W.3d 852, 855
 (Tex. App.—Texarkana 2014, no pet.) (citing Holley v. Adams,
544 S.W.2d 367
, 371–72 (Tex. 1976)). This list is not exclusive, and there is no requirement that

any unique set of factors be proven.
Id.
 Certainly, it is not necessary to prove all nine factors.

C.H.,
89 S.W.3d at 27
. The analysis of undisputed evidence relating to one factor may be
                                                9
adequate in a particular situation to support a finding that termination is in the best interest of the

child. In re K.W.,
335 S.W.3d 767, 770
 (Tex. App.—Texarkana 2011, no pet.) (quoting In re

J.A.W., No. 06-09-00068-CV,
2010 WL 1236432
, at *4 (Tex. App.—Texarkana Apr. 1, 2010,

pet. denied) (mem. op.)). Additionally, evidence supporting the termination of parental rights is

also probative of best interest. C.H.,
89 S.W.3d at 28
.

           Due to the young ages of K.A.N.C. and N.A.K.C., their desires cannot be determined.

The testimony indicates, however, that the children have been well cared for by the foster family

with whom they had been living at the time of trial for almost a year. The children have bonded

with the foster family, and the foster family has expressed an interest in adopting the children.

From this evidence, the trial court could infer that the children would prefer to remain in this

stable, loving environment. See In re U.P.,
105 S.W.3d 222, 230
 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied) (considering evidence that child was well cared for by foster family, had

bonded with family members, and spent minimal time with parent in assessing toddler’s desires).

           Several factors weigh against Shelia’s expressed desire to maintain her parental

relationship with the children. Foremost among these are the children’s present and future

physical and emotional needs. The trial court found that Shelia both (1) “knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which endanger the

physical or emotional well-being of the children” 6 and (2) “engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangers the physical or



6
    See TEX. FAM. CODE ANN. § 161.001(1)(D).

                                                  10
emotional well-being of the children.” 7 Shelia did not dispute these findings on appeal; to the

contrary, her trial testimony establishing that she permitted the children to remain with her

mother and grandmother, both of whom smoked marihuana in the home actually supports the

trial court’s finding. Moreover, Shelia did not acknowledge that this was a poor decision which

could endanger the children; instead, she testified that this was a good decision on her part,

explaining that marihuana “didn’t have nothing on her watching them . . . .” As past is often

prologue, the trial court could have formed a firm belief or conviction that Shelia’s past

endangering conduct would recur if the children were returned to her. See In re J.D.,
436 S.W.3d 105, 118
 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re D.S.,
333 S.W.3d 379, 384
 (Tex. App.—Amarillo 2011, no pet.) (trier of fact may infer parent’s past endangering

conduct may recur in future, upon child’s return to parent).

           Other evidence indicated that, in spite of documented mental health issues, Shelia failed

to seek counseling or long-term therapy for her mental health issues. Winsted testified that this

failure was a recipe for neglect and further opined that Shelia was at a high risk for abusing

and/or neglecting the children. Sipes testified that Shelia “did not make significant progress on

her family plan to alleviate the risk of abuse and neglect in her home.” The evidence showed

that Shelia failed to comply with her court-ordered service plan relating to her mental-health

issues as well as other requirements such as providing a safe home for the children.

           During the one-year time frame in which Shelia had the opportunity to diligently work

her service plan for the purpose of being reunited with her children, she was, instead, occupied


7
    See TEX. FAM. CODE ANN. § 161.001(1)(E).
                                                  11
with such endeavors as engaging in a physical altercation, 8 seeking out a new boyfriend who has

since been returned to prison on a parole violation, and becoming pregnant with a third child.

And, although Shelia made a last-minute effort to fulfill her service plan obligations, the totality

of these decisions reflects repeated poor judgment and irresponsible choices and provides a basis

on which the trial court could have concluded that Shelia could not adequately provide for the

children’s physical and emotional needs, now and in the future, and that she lacked essential

parenting skills and abilities. See In re C.A.J.,
122 S.W.3d 888
, 893 (Tex. App.—Fort Worth

2003, no pet.) (lack of parenting skills, income, home and unstable lifestyle considered in

determining parent’s ability to provide for child’s physical and emotional needs); In re J.O.A.,
282 S.W.3d 336, 346
 (Tex. 2009) (considering parent’s history of irresponsible choices in best

interest determination).

         Shelia could not articulate any discernable plans for her children and could not provide

them with a safe and suitable home. Instead, Shelia continued to live with her mother and failed

to appreciate the gravity of the situation with which she was faced.

         Based on this record, under the standards as set out above, we conclude that there is both

legally and factually sufficient evidence to allow the trial court to determine that the children’s

best interests were served by the termination of Shelia’s parental rights. Therefore, Section

161.001(2) of the Texas Family Code has been met. See TEX. FAM. CODE ANN. § 161.001(2).




8
 This evidence is reflected in a Facebook post in which Shelia stated, “Jst had a fight still lookn Gud no marks r nun
but Ido got bald stops tho lol”
                                                         12
V.    Conclusion

      We affirm the trial court’s judgment.




                                              Jack Carter
                                              Justice

Date Submitted:      December 11, 2014
Date Decided:        December 23, 2014




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