Opinion
No. 05-05-01555-CV
Opinion Filed August 15, 2006.
On Appeal from the 417th Judicial District Court, Collin County, Texas, Trial Court Cause No. 417-53424-03.
Affirm.
Before Justice WHITTINGTON, BRIDGES, and RICHTER.
MEMORANDUM OPINION
Father appeals the termination of his parental rights to his three children. In seven points of error, Father asserts his trial counsel was ineffective and the evidence is legally and factually insufficient to support the termination. We affirm.
Background
On September 16, 2003, Texas Department of Protective and Regulatory Services ("the Department") caseworker Michelle Hiza visited the home of Father and Mother, who was nine-months pregnant, to investigate an allegation that their children, five-year old J.C.J. and two-year old J.W.J., II, were being neglected and that Father and Mother were using drugs. After speaking with both Father and Mother and learning that drugs were present in the home, Hiza removed the children and placed them in foster care. The following day the Department filed an original petition to terminate the parental rights of Father and Mother, obtained emergency temporary managing conservatorship of the children, and had a Court Appointed Special Advocate ("CASA") volunteer, attorney ad litem, and guardian ad litem appointed for the children. See Tex. Fam. Code Ann. § 262.001(a), 262.104-.106 (Vernon 2002 Supp. 2006). Seven days later, the Department removed Father and Mother's newborn baby boy, J.O.J., and amended its petition to include the baby.
Following a full adversary hearing on September 30, 2003 and finding it in the children's best interests, the court entered a temporary order continuing the appointment of the Department as temporary managing conservator of the children and naming Father and Mother temporary possessory conservators with right to supervised visitation of the children. See id. § 262.201 (Vernon Supp. 2006). The court also ordered Father and Mother to undergo a psychological evaluation, drug assessment, and random drug testing and to attend counseling and parenting classes. The court's order was subsequently incorporated by the Department into a service plan listing the tasks Father and Mother needed to complete during the pendency of the suit. See id. §§ 263.101, 263.102 (Vernon 2002 Supp. 2006). In addition to the requirements imposed by the court, the Department also required Father, who suffers from bi-polar disorder, to take his medications. Although the Department had filed for termination, it sought to try to return the children to Father and Mother, and listed in its service plan reunification as the Department's goal. See Santosky v. Kramer, 455 U.S. 745, 766-67 (1982) (State's interest in protecting welfare of child must initially manifest itself by working toward preserving family rather than severing it). The target date for reunification was September 20, 2004, the Monday following the one-year anniversary of the date the Department was appointed temporary managing conservator of the older children. This date was also the date the court set for rendition of final order or dismissal of the suit pursuant to section 263.401(a) of the Texas Family Code. See id. § 263.401(a) (Vernon Supp. 2006). The dismissal date was subsequently extended 180 days to March 18, 2005. See id. § 263.401(b).
This section was enacted to prevent children from "languishing" indefinitely in foster care and ensures, absent special circumstances, that children remain under the temporary care of the Department for no longer than one year. See Tex. Fam. Code Ann. § 263.401(b) (one-year period may be extended up to 180 days); § 263.403 (establishing new dismissal date upon return of children to parents under continuing supervision and conservatorship of Department and, if applicable, upon re-return of children to foster care); In re B.W., 99 S.W.3d 757, 758-59 (Tex.App.-Houston [1st Dist.] 2003, no pet.); In re M.C.M., 57 S.W.3d 27, 36 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).
Over the next several months, Father and Mother completed parenting classes, attended individual and marital counseling, completed an outpatient drug program, and visited the children regularly. Father also became compliant with his medications. On February 14, 2005, finding it in the children's best interests, the court ordered the return of the children to Father and Mother under the continued supervision and conservatorship of the Department. See id. § 263.403(a) (Vernon 2002). The court also scheduled August 13, 2005 as the new date for dismissal of the suit. Id. § 263.403(b). Three months after this monitored return of the children, however, the Department learned Father and Mother were using drugs once again. On May 26, 2005, the Department obtained emergency temporary orders, removed the children, and placed them in foster care. See id. § 263.043(c). Although required at that time to schedule a new dismissal date, see id., the court failed to do so. Instead, on June 20, 2005, following a hearing and entry of temporary orders keeping the children in foster care, the court set October 10, 2005 as the date for trial. The Department continued to offer services to Father and Mother but changed its goal from reunification to termination.
During the months leading to trial, Father and Mother separated, and Father began staying with his parents. Both Father and Mother continued using drugs and Father's mental health deteriorated. At a court-ordered mediation about three weeks prior to trial, Mother agreed to relinquish her rights to the children. Father was unable to reach an agreement and proceeded to trial. Testimony at trial showed that Father was the children's primary caregiver until they were removed, visited his children regularly during the pendency of the suit, and loved his children and his children loved him. However, his ability to refrain from drugs and comply with his medications was short-term and affected by stress. Witnesses for the Department testified that Father had tested negative for drugs just a few days before trial, but he appeared to still be off his medications. Although not violent when he was abusing drugs and off his medications, witnesses, including Father's therapist, testified he could not provide a safe, stable environment for the children. One witness gave as an example that J.W.J., II, had tested positive for methamphetamine at the time of the original removal. Testimony also showed that the two older children, ages eight and five at trial, had exhibited high anxiety at the time of placement in foster care, had made progress in therapy, but had regressed during the time they were returned to Father and Mother. As the case progressed, the two older children had become anxious for permanency in their lives and had begun separating emotionally from Father and Mother — "resisting at the beginning of the visits and putting closure at the end." According to the Department's witnesses, all three children had bonded and developed a trusting relationship with their foster parents. Based on all of this, the children's therapist, the Department caseworker, the CASA, and the guardian ad litem recommended that Father and Mother's rights be terminated so that the children could obtain permanency and stability in their lives. These witnesses all testified that the foster parents were willing to continue "fostering" the children with hopes of eventually adopting them. The children's foster mother confirmed this testimony.
Testifying on Father's behalf, Father's mother stated Father had been living with her and her husband for about a month and that she and her husband were willing "to do anything necessary to support [Father] if the children were returned to him," including providing a home, financial support, and help with the children. Father's mother testified that Father took his medications when he lived with her. She further testified that she would ensure Father continued taking his medications and that she and her husband were "in for the long haul if that's what it [took]."
Also testifying on Father's behalf was a long-time friend who had seen Father with the children and knew he loved them and they loved him. This witness also testified that she encouraged Father to take his medications and had often called him to remind him to do so. In her opinion, Father was a good Father.
In finding Father's rights should be terminated, the trial judge found Father had knowingly placed or allowed the children to remain in conditions or surroundings that endangered the children's well being and had engaged in endangering conduct or knowingly placed the children with persons who engaged in endangering conduct. See id. § 161.001(1)(D),(E) (Vernon Supp. 2006). The trial judge also found termination was in the children's best interests. Id. § 161.001(2). The trial judge rendered the order terminating Father's rights October 14, 2005.
Finding Mother's agreement relinquishing her rights to the children to be in the children's best interest, the trial judge also approved the agreement and terminated her rights to the children.
Ineffective Assistance of Counsel
In his first point of error, Father argues his trial counsel was ineffective. To prevail on an ineffective assistance of counsel claim in an appeal from a parental rights termination case, an appellant must show (i) deficient performance and (ii) prejudice. In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (adopting Strickland standard, employed in ineffective assistance of counsel claims in criminal proceedings, in parental-rights termination proceedings). To establish deficient performance, the appellant must show counsel's performance fell below an objective standard of reasonableness. Id.; In re B.T., 154 S.W.3d 200, 205 (Tex.App.-Fort Worth 2004, no pet.). To establish prejudice, the appellant must show a reasonable probability that the result of the proceeding would have been different but for counsel's unprofessional errors. M.S., 115 S.W.3d at 550. In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Id. at 545; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We do not judge counsel's trial decisions in hindsight and will find counsel was ineffective only if the claim is firmly founded in the record. Thompson, 9 S.W.3d at 813. Without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Id.; In re S.L., 188 S.W.3d 388, 394 (Tex.App.-Dallas 2006, no pet.).
Strickland v. Washington, 466 U.S. 668 (1984).
Father's ineffective assistance claim rests on the following portions of sections 263.401, 263.402, and 263.403 of the family code
§ 263.401. Dismissal After One Year; Extension
(a) Unless the court has rendered a final order or granted an extension under Subsection (b), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservatorship, the court shall dismiss the [department's termination] suit.
(b) 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 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). If the court retains the suit on the court's docket, the court shall render an order in which the court:
(1) schedules the new date for dismissal of the suit not later than the 180th day after the time described by Subsection(a);
(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and
(3) sets a final hearing on a date that allows the court to render a final order before the required date for dismissal of the suit under this subsection.
(c) If the court grants an extension but does not render a final order or dismiss the suit on or before the required date for dismissal under Subsection (b), the court shall dismiss the suit. The court may not grant an additional extension that extends the suit beyond the required date for dismissal under Subsection(b).
* * *
§ 263.402. Limit on Extension; Waiver
(b) A party to a suit under this chapter who fails to make a timely motion to dismiss the suit or make a motion requesting the court to render a final order before the deadline for dismissal 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 department has introduced all of the department's evidence, other than rebuttal evidence, at the trial on the merits.
§ 263.403. Monitored Return of Child to Parent
(a) Notwithstanding Section 263.401, the court may retain jurisdiction and not dismiss the suit or render a final order as required by that section if the court renders a temporary order that:
(1) finds that retaining jurisdiction under this section is in the best interest of the child;
(2) orders the department to return the child to the child's parent;
(3) orders the department to continue to serve as temporary managing conservator of the child; and
(4) orders the department to monitor the child's placement to ensure that the child is in a safe environment.
(b) If the court renders an order under this section, the court shall:
(1) include in the order specific findings regarding the grounds for the order; and
(2) schedule a new date, not later than the 180th day after the date the temporary order is rendered, for dismissal of the suit.
(c) If a child placed with a parent under this section must be moved from that home by the department before the dismissal of the suit or the rendering of a final order, the court shall, at the time of the move, schedule a new date for dismissal of the suit. The new dismissal date may not be later than the original dismissal date established under Section 263.401 or the 180th day after the date the child is moved under this subsection, whichever date is later.
(d) If the court renders an order under this section, the court must include in the order specific findings regarding the grounds for the order.
Tex. Fam. Code Ann. §§ 263.401-263.403 (Vernon 2002 Supp. 2005).
Whereas section 263.401(b) refers to the court's ability to retain a case on its docket beyond the one-year dismissal date, section 263.403 refers to the court's ability to retain jurisdiction over the suit. As a historical note, we point out that section 263.401(b) previously provided that the court could extend the court's jurisdiction over the suit up to 180 days. See In re D.D.M., 116 S.W.3d 224, 229 (Tex.App.-Tyler 2003, no pet.). That language made the dismissal deadline jurisdictional. See id. at 229. In 2001, however, the legislature amended section 263.401(b) to remove the jurisdictional aspect and make the dismissal deadline procedural. Id. The legislature also added section 263.402 which specifically made the deadline waiveable. Id. Although section 263.402(b) applies to all dismissal deadlines set in chapter 263, id., the legislature did not amend the jurisdictional language in section 263.403.
Based on these sections, Father argues his counsel was ineffective in not moving to dismiss the suit after the trial court failed to render a final order by August 13, 2005, which was the last dismissal date set by the court and was based upon the monitored return of the children. See id. § 263.403(a),(b). Father argues that when the children were placed back in foster care, the court was required to schedule a new dismissal date no later than the 180th day after the children were returned to foster care, see id. § 263.403(c), and because the court failed to do so, the dismissal date remained August 13, 2005. When no final order had been rendered by that date, Father argues, his counsel should have moved to dismiss the suit. See id. § 263.402(b). Father maintains that her failure to do so constituted deficient performance. Father further maintains that the result of the proceedings would have been different but for counsel's performance because had she moved to dismiss the suit, the court would have been required under section 263.401(c) to dismiss the suit, his rights would not have been terminated, and his children would have been returned to him. We disagree.
Father's argument is premised on the assumption that the statutory requirement that the trial court schedule a new dismissal date upon the child's return to foster care is jurisdictional. However, just because a statutory requirement is mandatory does not mean it is jurisdictional. In re B.T., 154 S.W.3d at 209 (quoting In re E.D.L., 105 S.W.3d 679, 687 (Tex.App.-Fort Worth 2003, pet. denied)). The issue is what consequences follow the failure to comply, id. at 208, and nothing in section 263.403 suggests that the failure to schedule a new dismissal date upon the children's return to foster care results in dismissal of the suit if no final order is rendered by the previous dismissal date. Father's contention to the contrary mistakenly rests on the requirement in section 263.401(b) that the court cannot retain a termination suit on its docket unless it renders an order which, among other things, includes a new dismissal date. See Tex. Fam. Code Ann. § 263.401(b)(1). No such language is contained in section 263.403. Had the legislature intended that a court's failure to set a new dismissal date upon the return of a child to foster care result in dismissal of the suit if a final order had not been rendered by the previous dismissal date, we presume it would have worded section 263.403 to that effect. See In re B.T., 154 S.W.3d 200 at 208 (concluding failure to hold adversary hearing under section 262.201(a) of the family code with required fourteen-day period of child's removal by Department did not require dismissal of termination suit where statue contained no provision dictating dismissal for non-compliance); In re J.W.M., 153 S.W.3d 541, 545 (Tex.App.-Amarillo 2004, pet. denied) (in interpreting a statute, courts must presume legislature chose its words carefully, that every word was included for some purpose and every word excluded was omitted for a purpose). Because nothing in section 263.403 supports Father's contention that the court's failure to schedule a new dismissal date upon the children's return to foster care was jurisdictional, Father cannot show that counsel should have moved to dismiss the suit when no final order had been rendered by the August 2005 dismissal date nor that the trial court would have been required to dismiss the suit. Accordingly, we overrule Father's first point of error.
Sufficiency of Evidence
In his second through seventh points of error, Father challenges the legal and factual sufficiency of the evidence to support the termination. Specifically, in points two and three, he maintains the evidence is legally and factually insufficient to show he knowingly placed or allowed the children to remain in conditions or surroundings endangering their physical and emotional well-being. In points four and five, he maintains the evidence is legally and factually insufficient to show he engaged in endangering conduct or knowingly placed the children with persons who engaged in endangering conduct. Finally, in points six and seven, he maintains the evidence is legally and factually insufficient to show termination of his rights were in the children's best interests. We reject Father's contentions.
A trial court may involuntarily terminate a parent's right to his child only upon a finding by clear and convincing evidence that (1) the parent has committed at least one of the enumerated acts contained in section 161.001(1) of the family code and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2002). Because involuntary termination of parental rights involves fundamental constitutional rights, see Stanley v. Illinois, 405 U.S. 645 (1972), we review the legal and factual sufficiency of the evidence to support a termination under a heightened standard. See In re A.B., 125 S.W.3d 769, 775 (Tex.App.-Texarkana 2003, pet. ref'd). In reviewing a challenge to the legal sufficiency of the evidence to support a termination finding, we look at all the evidence in the light most favorable to the finding to 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 256, 266 (Tex. 2002). In doing so, we assume the fact finder resolved any disputed facts in favor of its finding if a reasonable fact finder could do so, and disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. Id. We do not, however, disregard undisputed evidence that does not support the finding. Id. We will find the evidence to be legally insufficient if we determine no reasonable fact finder could form a firm belief or conviction that its finding was true. Id.
In reviewing a challenge to the factual sufficiency of the evidence to support a termination finding, we look at all the evidence giving "due consideration" to any evidence the fact finder could reasonably have found to be clear and convincing. Id. We consider the disputed evidence and consider whether a reasonable fact finder could have resolved the dispute in favor of its finding. Id. We will find the evidence to be factually insufficient if, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of its finding is so significant that a fact finder could not reasonably have formed a firm conviction or belief. Id. When, as here, the trial court finds by clear and convincing evidence more than one ground for termination, we will conclude a finding under 161.001(1) is supported by legally and factually sufficient evidence if any ground is supported by the evidence. Avery v. State, 963 S.W.2d 550, 552 (Tex.App.-Houston [1st Dist.] 1997, no writ).
Viewing the evidence under the appropriate standard, we conclude a reasonable fact finder could form a firm belief or conviction that Father's rights should be terminated. Although Father loved the children, had been the primary caregiver, and made effort to comply with the service plan, the record reflects his ability to refrain from drugs and comply with his medication was short-term and that when he was abusing drugs and off his medications, he could not provide a safe and stable environment for the children. Although he complied with the service plan initially, he began using drugs again and stopped taking his medications some time after the children were returned home. As a result, the children were removed and returned to foster care. Although aware the Department would no longer be aiming for family reunification but would be seeking termination because of the drug use and failure to take his medications, Father's behavior did not entirely improve despite staying with his parents who offered him support. From this evidence, we conclude a rational fact finder could form a firm belief or conviction that Father engaged in conduct that endangered the children's well-being. See, e.g., Vasquez v. Tex. Dep't of Protective Regulatory Srvs., 190 S.W.3d 189, 197-99 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (continued pattern of drug use, failure to remain drug-free while under Department's supervision, and negligent supervision sufficient to show mother engaged in endangering conduct); In re Latham v. Tex. Dep't of Fam. Protective Servs., 177 S.W.3d 341, 348 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (use of drugs and failure to comply with Department's family reunification plan knowing that parental rights in jeopardy sufficient to support finding mother engaged in endangering conduct); In re R.W., 129 S.W.3d 732, 739 (Tex.App.-Fort Worth 2004, pet. denied) (conduct, such as drug use, that subjects child to life of uncertainty or instability endangers child's well-being).
In arguing the evidence is legally and factually insufficient to support a finding that Father engaged in conduct that endangered the children's well-being, Father argues his situation is similar to the mother's situation in In re P.S., 766 S.W.2d 833 (Tex.App.-Houston 1989, no writ). The mother in P.S. suffered from schizophrenia and needed assistance to stay on her medication. Id. at 835. Based on a referral that the second child "was in medical danger," two Department caseworkers and two paramedics visited the home. Id. at 836. Finding it "deplorable" and the mother in what appeared to be a "daze" and complaining that her husband had hit her, the Department removed the children and subsequently filed for termination. Id. The mother was then hospitalized for a psychiatric evaluation and prescribed new medication. Id. Over the next several months, the mother's condition improved. Id. However, when she became pregnant with her third child, she stopped taking her medication for fear of harming her unborn baby, and her mental health deteriorated. Id. at 837. A new service plan was implemented and, as the mother's situation improved, the children were allowed monitored two-day in-home visits. Id. During two of these visits, mother asked for help with the children and expressed concern over her ability to care for them. Id. Mother's rights were subsequently terminated. Id. at 834. In reversing the termination, the court of appeals found the evidence factually insufficient to show mother knowingly placed the children in a dangerous environment or engaged in endangering conduct because not only was no evidence presented showing the children had ever been harmed by mother, but evidnece existed the mother made efforts to improve her situation. Id. at 839. Unlike the mother in P.S., the evidence here shows that J.W.J., II, age two at the time, tested positive for methamphetamine, Father used illicit drugs, and Father's non-compliance with his medications was unrelated to any concerns about the medications' side-effects.
We also conclude a rational fact finder could form a firm belief or conviction that termination of Father's rights was in the children's best interests. In addition to the evidence supporting the Department's allegations that Father engaged in endangering conduct, the record reflects the children's return to the parents was detrimental to the children and that as the case progressed, the two older children had begun separating emotionally from Father. The record also reflects the children were anxious for permanency in their lives and had bonded and developed a trusting relationship with their foster parents, who hoped to adopt them. Although Father had been the primary caregiver prior to the children's removal and his parents were willing "to do anything necessary to support [him] if the children were returned to him," no specific plan was outlined. Based on this, we conclude there is no disputed evidence concerning the best interest of the children that is so significant that a fact finder could not reasonably have formed a firm belief or conviction that termination of Father's rights was in the children's best interest. See, e.g., In re D.S., 176 S.W.3d 873, 878-79 (Tex.App.-Fort Worth 2005, no pet.) (evidence of mother's unstable life and drug use, failure to successfully complete drug treatment, and foster parents' plan to adopt child supported finding that termination of her rights in child's best interest); In re A.B., 125 S.W.3d at 777-78 (evidence that children appeared detached from mother, mother failed to maintain safe and stable living environment, and mother abused drugs and alcohol supported finding that termination of her rights in child's best interests). We overrule Father's fourth, fifth, sixth, and seventh points of error. In light of the disposition of these points, we need not address Father's second and third points of error in which he challenges the legal and factual sufficiency of the evidence to support a finding that he knowingly placed or knowingly allowed the children to remain in conditions or surroundings endangering their physical and emotional well-being. See Avery, 963 S.W.2d at 552. We affirm the trial court's judgment.
In support of his argument that termination was not in the children's best interest, Father cites to In re S.A.P., 169 S.W.3d 685 (Tex.App.-Waco 2005, no pet.) and In re W.C., 98 S.W.3d 753 (Tex.App.-Fort Worth 2003, no pet.), both of which reversed the termination order after concluding the terminations were not in the children's best interest. Those cases are distinguishable from the facts at hand in that in both of those cases the parents were complying with the service plan and were not abusing drugs.