Opinion
No. 11-20-00031-CV
07-31-2020
IN THE INTEREST OF K.T.R., A CHILD
On Appeal from the County Court at Law Erath County, Texas
Trial Court Cause No. CV09030
MEMORANDUM OPINION
Appellant, who is K.T.R.'s mother, appeals a final order in which the trial court appointed K.S., a nonparent, as K.T.R.'s permanent managing conservator and appointed Appellant and K.T.R.'s father as possessory conservators. In two issues, Appellant argues that the evidence is legally and factually insufficient to support the trial court's finding that it was in the best interest of K.T.R. that Appellant not be appointed managing conservator and that the trial court erred when it denied Appellant's request for an extension of time in which to complete the court-ordered service plan. We affirm the trial court's order.
K.T.R.'s father has not appealed the trial court's order.
Background
On January 22, 2019, Appellant was arrested after she got into a fight with her adult daughter. The Texas Department of Family and Protective Services removed K.T.R. from Appellant's care and filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. The trial court appointed the Department as K.T.R.'s temporary managing conservator.
On February 12, 2019, Appellant signed a family service plan that set out certain actions that she was required to take before K.T.R. would be returned to her care. Specifically, to provide a safe and appropriate home for K.T.R., Appellant was required to refrain from living with her daughter, from using any illegal substances, and from engaging in domestic violence. Appellant was also required to complete a domestic violence class, to complete a psychological evaluation, to participate in a psychiatric evaluation, to submit to random drug testing, to engage in a substance abuse assessment, to refrain from criminal activity, to pay child support as ordered by the trial court, to participate in an after-care program in order to maintain a sober lifestyle and to gain a positive support system, to successfully complete a parenting class, to remain in contact with the Department, to provide a stable home environment, to attend visitation with K.T.R., to participate in individual counseling, and to obtain suitable employment. The trial court approved Appellant's service plan and made it an order of the court.
K.T.R. was placed with K.S., who was K.T.R.'s "Nana." When K.T.R. was born, K.S. believed that K.T.R. was her grandchild. DNA tests performed when K.T.R. was four years old revealed that K.T.R. was not K.S.'s biological grandchild. Even after she learned that K.T.R. was not her biological grandchild, K.S. stayed involved in K.T.R.'s life.
At trial, Appellant requested an extension of time in which to complete her service plan. After it found that there were no extraordinary circumstances that justified the extension and that prolonging the case would not be in K.T.R.'s best interest, the trial court denied Appellant's request for an extension.
The Department, the Court-Appointed Special Advocate (the CASA), and K.T.R.'s attorney ad litem all argued that K.S. should be appointed as K.T.R.'s permanent managing conservator and that Appellant and K.T.R.'s father should be appointed as possessory conservators. The trial court found that it was not in K.T.R.'s best interest to appoint Appellant or K.T.R.'s father as permanent managing conservator because the appointment would significantly impair K.T.R.'s physical health or emotional development, appointed K.S. as K.T.R.'s permanent managing conservator, and appointed Appellant and K.T.R.'s father as possessory conservators.
Analysis
In her first issue, Appellant argues that the evidence is legally and factually insufficient to support the trial court's finding that it was not in K.T.R.'s best interest that Appellant be appointed managing conservator.
We review the trial court's conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.M.T., 592 S.W.3d 974, 976 (Tex. App.—San Antonio 2019, pet. denied). Under this standard, legal and factual sufficiency are not independent grounds of error but factors used to determine whether the trial court abused its discretion In re M.T., No. 11-17-00340-CV, 2019 WL 1291246, at *2 (Tex. App.—Eastland Mar. 21, 2019, no pet.) (mem. op.); In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A trial court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to guiding principles. K.S., 492 S.W.3d at 426; see also J.A.J., 243 S.W.3d at 616. "A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision." K.S., 492 S.W.3d at 426. However, the best interest of the child is always the primary consideration in the determination of managing conservatorship. TEX. FAM. CODE ANN. § 153.002 (West 2014).
Although the trial court is afforded broad discretion to decide family law questions, the legislature has explicitly limited the exercise of that discretion when a nonparent seeks to be appointed as a managing conservator. Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014) (per curiam). When a court determines conservatorship between a parent and a nonparent, a presumption exists that appointing the parent as the sole managing conservator is in the child's best interest; this presumption is deeply embedded in Texas Law. FAM. § 153.131; Danet, 436 S.W.3d at 796. Section 153.131(a) provides:
[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.FAM. § 153.131(a).
The statutory language in Section 153.131(a) creates a strong presumption in favor of parental custody and imposes a heavy burden on the nonparent. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990); M.T., 2019 WL 1291246, at *2. The nonparent may rebut the presumption with affirmative proof, by a preponderance of the evidence, that appointing the parent as managing conservator would significantly impair the child, either physically or emotionally. Lewelling, 796 S.W.2d at 167; see also J.A.J., 243 S.W.3d at 616. Usually, the nonparent must present evidence that shows a parent's acts or omissions will have a detrimental effect on the child's physical health or emotional development. In re F.E.N., 579 S.W.3d 74, 76-77 (Tex. 2019) (per curiam); In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.). Evidence of acts or omissions that may constitute significant impairment include, but are not limited to, physical abuse, severe neglect, drug or alcohol abuse, immoral behavior, parental irresponsibility, and an unstable home environment. S.T., 508 S.W.3d at 492; see also M.T., 2019 WL 1291246, at *2.
Three witnesses testified at trial—Appellant, K.S., and Cassandra Reeve, a conservatorship worker for the Department. The evidence reflected that, in February 2019, Appellant signed a service plan that set out what she needed to do in order to have K.T.R. returned to her care. In Reeve's opinion, Appellant understood the requirements of the service plan. According to Reeve, Appellant had not complied with the service plan. Appellant admitted that she had not done "some of those things" on the service plan.
As relevant to our analysis, the evidence established that Appellant had positive and presumed positive drug tests after she signed the service plan. While Appellant claimed that there had "been some confusion on [her] part about the drug tests," it was undisputed that she had a presumed positive drug test in March 2019. Because of the positive drug test, Appellant lost visitation rights with K.T.R. Appellant was incarcerated from May until August. After her release, Appellant had positive drug tests in both August and September. Appellant then had negative drug tests in October and November. On December 23, 2019, Reeve requested that Appellant take a drug test. Appellant failed to take the requested drug test, and that test was presumed positive. Appellant's continued drug use is an act that could have a detrimental effect on K.T.R.'s physical health and emotional development. See S.T., 508 S.W.3d at 492; see also M.T., 2019 WL 1291246, at *2.
Further, pursuant to the service plan, Appellant was required to obtain a stable home environment for K.T.R. After K.T.R. was removed from her care, Appellant continued to live in her daughter's old house until Appellant was incarcerated in May. After she was released from jail in August, Appellant lived with a friend in a hotel for almost a month. Appellant then rented a two-bedroom apartment in September 2019. But, by November 2019, Appellant was "on the verge" of being evicted and had to seek assistance from a local organization to pay her rent. Appellant's failure to obtain a stable home environment for K.T.R. is an omission that could cause significant impairment to K.T.R.'s physical health and emotional development. See S.T., 508 S.W.3d at 492; see also M.T., 2019 WL 1291246, at *2.
As to K.T.R.'s emotional development, there was evidence that K.T.R. had a regular schedule and "stability" with K.S. and was thriving in K.S.'s care. However, when he was placed with K.S., K.T.R. had some academic delays and was retained in the second grade. According to K.S., K.T.R. was "very smart" and the academic delays were mainly attributable to absences. Since he began living with K.S., K.T.R. had had only one tardy and was doing "amazing" at school.
K.T.R. loved Appellant and wanted to have a relationship with her. K.S. testified that she would foster a relationship between Appellant and K.T.R. but that it was in K.T.R.'s best interest to stay with K.S. The CASA expressed the opinions (1) that, because K.T.R. had improved both educationally and socially in K.S.'s care, K.S. should be appointed K.T.R.'s permanent managing conservator and (2) that K.T.R. should have both communication and visitation with Appellant. K.T.R.'s attorney ad litem noted that K.T.R. wanted to remain with K.S. and agreed that it was in K.T.R.'s best interest for K.S. to be appointed permanent managing conservator.
On this record, we cannot conclude that the trial court abused its discretion when it found that it was in K.T.R.'s best interest that Appellant not be appointed as permanent managing conservator. We overrule Appellant's first issue.
In her second issue, Appellant asserts that the trial court abused its discretion when it denied her request for an extension of the dismissal date so that she could complete her service plan. Appellant specifically contends that her "unjust" incarceration between May and August 2019, followed by the time it took her to find employment, locate a place to live, and obtain transportation, was an "extraordinary circumstance" and that it was in K.T.R.'s best interest to allow her to complete the service plan.
The Department filed a suit affecting the parent-child relationship in which it requested that Appellant's parental rights be terminated and that the Department be appointed temporary managing conservator of K.T.R. In such a suit, if the trial court does not either commence the trial on the merits or grant an extension, its jurisdiction terminates, and the suit is automatically dismissed, on the first Monday after the anniversary of the date on which the trial court rendered a temporary order in which it appointed the Department as temporary managing conservator. See FAM. § 263.401(a) (West Supp. 2019). The trial court may grant an extension of up to 180 days if it finds that extraordinary circumstances necessitate that the child remain in the temporary managing conservatorship of the Department and that continuing the appointment of the Department as temporary managing conservator is in the child's best interest. See id. § 263.401(b).
The Department removed K.T.R. from Appellant's care on January 22, 2019, and filed the Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship on January 23, 2019. On January 24, 2019, the trial court signed a temporary order in which it appointed the Department temporary managing conservator of K.T.R. The statutory dismissal date, therefore, was January 27, 2020. The trial commenced on January 22, 2020.
The focus of the trial court's decision to grant or deny a request for an extension of the dismissal date "is on the needs of the child, whether extraordinary circumstances necessitate the child remaining in the temporary custody of the Department, and whether continuing such is in the best interest of the child." In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied) (en banc). We review the trial court's decision for an abuse of discretion. Id.; see also In re L.E., No. 07-19-00317-CV, 2020 WL 54464, at *6 (Tex. App.—Amarillo Jan. 3, 2020, pet. denied) (mem. op.).
Appellant asserts that she established that extraordinary circumstances existed because she was unjustly incarcerated for burglary of her own house and because the charges against her were ultimately dismissed. However, Appellant does not dispute that her actions led to the incarceration. "[A]ctions that are considered to be the parent's fault will generally not constitute extraordinary circumstances." In re M.S., No. 06-19-00110-CV, 2020 WL 1312937, at *2 (Tex. App.—Texarkana Mar. 20, 2020, no pet.) (quoting In re J.S.S., 594 S.W.3d 493, 501 (Tex. App.—Waco 2019, pet. denied) ("A circumstance such as incarceration, which is involuntary, is not necessarily an 'extraordinary circumstance' that merits an extension.")).
Appellant also made no significant attempt to comply with her service plan prior to trial. Appellant was required to refrain from the use of illegal substances but had several positive and presumed positive drugs tests. Because of a presumed positive drug test, Appellant lost her right to visitation with K.T.R. Appellant also did not obtain a suitable place for K.T.R. to live until she rented an apartment in September. However, by November, Appellant faced eviction from that apartment. Although Appellant claimed that she obtained employment in November 2019, she failed to provide sufficient information to the Department to allow it to verify that employment. Appellant also claimed that she participated in a parenting class while she was incarcerated, but she failed to produce a certificate that verified that she successfully completed the class. Finally, Appellant did not attend a domestic violence class, did not participate in counseling, and did not participate in an after-care program to help her address her issues with substance abuse.
Appellant knew on February 12, 2019, the actions that she needed to take in order to have K.T.R. returned to her care. Appellant, however, did not take any significant steps to comply with any of the service plan requirements until she rented an apartment in September 2019. "Failure to begin complying with a family service plan until several weeks before trial does not constitute an extraordinary circumstance when the requirements necessary to obtain the return of the child were known well in advance of that time." In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet. denied); see also In re A.B., No. 07-19-00180-CV, 2019 WL 5199299, at *4 (Tex. App.—Amarillo Oct. 15, 2019, no pet.) (mem. op.) (holding that trial court did not abuse its discretion when it failed to grant request for extension where the evidence showed that the father had not completed his court-ordered services, had continued to use drugs, and had failed to participate in any drug rehabilitation services).
Further, Appellant presented no evidence that would support a finding that a delay in the hearing would be in K.T.R.'s best interest. Rather, the evidence established that Appellant did not comply with her service plan and failed to take the actions required to address her issues with substance abuse. The trial court, therefore, could have reasonably determined that Appellant failed to show that an extension would be in K.T.R.'s best interest. See M.S., 2020 WL 1312937, at *3 (holding that, based on the appellant's repeated refusal to submit to drug testing, criminal convictions, and pending charges that included possession of a controlled substance, the trial court could have determined that the appellant failed to show how it would be in the child's best interest for an extension to be granted).
We hold that the trial court did not abuse its discretion when it denied Appellant's request for an extension of the dismissal date. See id. at *2 ("[W]hen a parent, through her own choices, fails to comply with a service plan and then requests an extension of the statutory dismissal date in order to complete the plan, the trial court does not abuse its discretion by denying the extension." (alteration in original) (quoting In re A.S., No. 12-16-00104-CV, 2016 WL 5827941, at *2 (Tex. App.—Tyler Sept. 30, 2016, no pet.) (mem. op.))). We overrule Appellant's second issue.
This Court's Ruling
We affirm the trial court's order.
JOHN M. BAILEY
CHIEF JUSTICE July 31, 2020 Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.