Opinion
No. 09-09-00472-CV
Submitted on March 3, 2010.
Opinion Delivered March 11, 2010.
On Appeal from the County Court at Law No. 3, Montgomery County, Texas, Trial Cause No. 08-11-10762-CV.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
The mother of T.K. appeals the order of termination of her parental rights. In three issues, appellant challenges the legal and factual sufficiency of the evidence to support the trial court's findings and contends that the trial court erroneously denied her right to a jury trial. We affirm the trial court's order.
Appellant's first issue challenges the legal sufficiency of the evidence supporting the grounds for termination and the trial court's finding that termination would be in the best interest of the child.
In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.
In re J.F.C, 96 S.W.3d 256, 266 (Tex. 2002).
The trial court found four independent grounds for termination. See TEX. FAM. CODE ANN. § 161.001 (1)(D), (E), (N), (O) (Vernon Supp. 2009). On appeal, appellant contends the evidence is legally insufficient to support the two endangerment grounds, but she does not challenge the trial court's findings that appellant constructively abandoned T.K. and that appellant failed to comply with the provisions of a court order that established the actions necessary for the mother to obtain the return of the child. "Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In addition to finding one of the statutory grounds for termination, the trial court must find that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(2) (Vernon Supp. 2009). Non-exclusive factors that may be considered in this determination include: (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 to promote the best interest of the child; (6) the plans for the child by the parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Appellant does not discuss the evidence that is relevant to a legal sufficiency challenge to the trial court's finding that termination would be in the best interest of the child. The record contains evidence that appellant abused drugs and alcohol, that her substance abuse negatively affected eleven-year-old T.K., and that the Department's placement of T.K. with his maternal aunt would provide a stable environment for T.K. Appellant's twenty-four-year-old daughter testified that appellant had abused drugs throughout the daughter's life. According to appellant's daughter, appellant had been "firmly abusive" with her and with T.K. She believed T.K. would be at risk of harm if T.K. were to be returned to appellant's home.
T.K.'s aunt testified that the Department placed T.K. in her home fifteen months before the trial. According to the aunt, appellant had a twenty-five year history of substance abuse. The aunt's daughters are slightly older than T.K. and are very close to T.K. T.K. has bonded with his aunt's family, and his aunt and uncle plan to adopt T.K. The aunt testified that T.K. desires to be adopted by them.
The Department caseworker testified that appellant did not comply with the service plan created after the adversary hearing. Appellant was arrested for driving while intoxicated in February 2003, March 2007, May 2007, August 2008, and January 2009. The last two arrests occurred during the pendency of this case. For several months covered by the service plan, appellant was incarcerated due to a revocation of her community supervision. Appellant failed to submit proof that she attended a substance abuse counseling program as required by the service plan. Appellant attended four of eight scheduled individual counseling sessions, and further counseling was terminated by the counselor. Appellant submitted to one of four scheduled urinalysis tests, and on that occasion she tested positive for benzodiazepine. Appellant failed to submit to hair follicle testing and the one time she appeared at the compliance center she could not be tested because she had recently dyed her hair and shaved all alternative sites. The caseworker testified that T.K.'s physical and emotional needs were being met by T.K's aunt and her family, and that appellant could not meet those needs now and probably would not be able to do so in the future.
A counselor who treated T.K. in 2006 and early 2007 testified that at that time T.K. was worried about appellant's substance use and was angry that his mother failed to provide care for him. The counselor resumed providing services for T.K. in August 2008. The counselor testified that T.K. desired to remain in his aunt's home and did not want to visit with appellant.
Viewing the evidence in the light most favorable to the judgment, the trial court as the trier of fact could form a firm belief or conviction that termination of appellant's parental rights would be in the best interest of T.K. We overrule issue one.
In her second issue, appellant contends the evidence is factually insufficient to support the trial court's endangerment and best interest findings. In a factual sufficiency review, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266. We must affirm the judgment if the factfinder could "reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). On the other hand, "[i]f, 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" and the appellant is entitled to a new trial. In re J.F.C., 96 S.W.3d at 266.
Appellant does not challenge the trial court's findings that appellant constructively abandoned T.K. and failed to comply with the provisions of a court order that established the actions necessary for the mother to obtain the return of the child. Accordingly, the unchallenged predicate findings support the judgment. In re A.V., 113 S.W.3d at 362. Regarding her factual sufficiency challenge to the trial court's finding that termination is in the best interest of the child, appellant refers to evidence that she had a prescription for benzodiazepine. Appellant also testified that T.K. was not with her during any of her offenses for driving while intoxicated. Appellant testified that she submitted to a monthly urine screen while she was on community supervision and that she had a place for the child to live. Appellant admitted that she had not spoken to T.K. since June or July 2008, but she attributed the lack of contact with T.K. and her failure to submit to drug testing to the Department's lack of communication.
The evidence in this case centered on the appellant's long-standing substance abuse and the negative effect of that abuse on her ability to provide a safe environment for T.K. At most, the evidence that supports a finding contrary to the finding made by the trial court shows that appellant was being monitored by the probation department and that she had obtained a prescription for one of the substances she used. Notwithstanding this evidence, the trial court could have formed a firm belief that appellant had not resolved her substance abuse issues, that appellant would continue to use intoxicating substances, and that her use of such substances would cause her to neglect T.K. in the future, as she had in the past. The disputed evidence is not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination would be in the best interest of the child. We overrule issue two.
In her third issue, appellant contends the trial court erred in denying her request for a jury trial. When the trial court called the case for trial, neither appellant nor her counsel of record personally appeared. Failure of a party to appear for trial shall be deemed a waiver of the right to trial by jury. TEX. R. CIV. P. 220.
Citing In re W.B. W., Jr., appellant argues that she appeared for trial because her attorney was present. See In re W.B. W., Jr., 2 S.W.3d 421, 422 (Tex. App.-San Antonio 1999, no pet.). W.B.W. held that for Rule 220 purposes, `"a party, although not personally present, appears for trial when his attorney is present.'" Id. (quoting Rainwater v. Haddox, 544 S.W.2d 729, 732 (Tex. Civ. App.-Amarillo 1976, no writ). If counsel refuses to go forward with the trial, however, that refusal constitutes a jury waiver. Money v. Jones, 766 S.W.2d 307, 308-09 (Tex. App.-Dallas 1989, writ denied). Likewise, late arrival by both counsel and the litigant waives the right to trial by jury. Maldonado v. Puente, 694 S.W.2d 86, 89 (Tex. App.-San Antonio 1985, no writ).
In W.B.W., Jr., the attorney timely appeared for trial and objected to the nonjury setting. W.B.W., Jr., 2 S.W.3d at 422-23. In the case at hand, two associates were present when the case was called, but they neither entered a formal appearance on behalf of appellant nor indicated that they were prepared to move forward with the trial without counsel of record being present. One of the associates objected to proceeding, then asked to be excused, and the trial court dismissed the jury before either counsel of record or appellant arrived at the courtroom. When counsel of record did arrive, he moved for a continuance and asked for permission to withdraw. Four hours after the jury had been dismissed, counsel announced ready for trial and appellant was present in the courtroom. It is evident that the trial proceeded as a bench trial because neither appellant nor her counsel of record timely appeared for jury selection. See Money, 766 S.W.2d at 308; Maldonado, 694 S.W.2d at 89. No abuse of discretion is shown on this record. We overrule issue three and affirm the judgment.
AFFIRMED.