Opinion
10-22-00283-CV
02-01-2023
IN THE INTEREST OF N.G. A CHILD
From the 82nd District Court Robertson County, Texas Trial Court No. 21-03-21209-CV
Before Chief Justice Gray, Justice Johnson, and Justice Smith
MEMORANDUM OPINION
STEVE SMITH Justice
After a jury trial, appellants, R.P. and R.G., appeal the trial court's order terminating their parental rights to their child, N.G. In three issues, R.P., the biological mother, argues that: (1) the trial court's order extending this matter on the trial docket was void for failing to "designate the matters that constituted 'extraordinary matters'" pursuant to section 263.401(b) of the Texas Family Code, see TEX. FAM. CODE ANN. § 263.401(b); (2) the evidence is legally insufficient to support termination under subsections 161.001(b)(1)(D) and (b)(1)(E) of the Texas Family Code, see id. § 161.001(b)(1)(D)-(E); and (3) the evidence is factually insufficient to support termination under subsections 161.001(b)(1)(D) and (b)(1)(E). In one issue, R.G., the biological father, contends that the evidence is legally and factually insufficient to support termination of his parental rights under subsections 161.001(b)(1)(D), (b)(1)(E), and (b)(1)(O) of the Texas Family Code. See id. § 161.001(b)(1)(D), (E), (O). Because we overrule all of R.P. and R.G.'s issues, we affirm.
R.P.'s Appellate Issues
COMPLIANCE WITH SECTION 263.401 OF THE TEXAS FAMILY CODE
For the first time on appeal, R.P. asserts that the trial court's order of termination is void because the trial court did not comply with section 263.401(b) of the Texas Family Code. Specifically, R.P. argues that the trial court's termination order is void because the trial court failed to "designate the matters that constituted 'extraordinary matters'" in the order that extended this matter on the trial court's docket after the automatic dismissal date.
Section 263.401 provides, in relevant part, that:
(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court's jurisdiction over the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child is terminated and the suit is automatically dismissed without a court order. Not later than the 60th day before the day the suit is automatically dismissed, the court shall notify all parties to the suit of the automatic dismissal date.
(b) 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). 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 on which the suit will be automatically dismissed if the trial on the merits has not commenced, which date must not be 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 the trial on the merits on a date not later than the date specified under Subdivision (1).
TEX. FAM. CODE ANN. § 263.401(a)-(b).
On April 5, 2021, the trial court rendered a temporary order appointing the Department as temporary managing conservator of N.G. Thereafter, on February 23, 2022, the trial court signed an order retaining the suit on the trial court's docket, stating that extraordinary circumstances necessitated the child remaining in the temporary managing conservatorship of the Department and that continuing this appointment is in the best interest of N.G. The trial court then set the case for a trial on the merits for August 10, 2022. The trial court's February 23, 2022 order did not explain what extraordinary circumstances necessitated extending the automatic dismissal date. After a jury trial, the trial court signed its termination order on August 29, 2022.
Recently, in In re G.X.H., the Texas Supreme Court stated the following regarding claimed defects relating to section 263.401:
In sum, we conclude that, while a trial court's failure to timely extend the automatic dismissal date before that date passes-through a docket-sheet notation or otherwise-is jurisdictional, claimed defects relating to the other requirements of [section] 263.401(b) are not. Accordingly, with the exception of a trial court's failure to extend the automatic dismissal date before it passes, complaints regarding the trial court's compliance with the requirements in subsection (b) must be preserved for appellate review.627 S.W.3d 288, 301 (Tex. 2021).
The record reflects, and R.P. does not dispute, that the trial court timely signed an order retaining the suit on the trial court's docket before the automatic dismissal date. R.P.'s complaint in this issue centers on the trial court's purported failure to comply with the requirements of section 263.401(b) by making particularized findings regarding "extraordinary circumstances." This is not a jurisdictional complaint. See id. Thus, R.P. was required to preserve the complaint in the trial court. See id. The record does not reflect that R.P. did so. Accordingly, we cannot say that R.P. preserved this complaint for appellate review. See id.; see also TEX. R. APP. P. 33.1(a). We overrule her first issue.
Even if preserved, R.P.'s contention in this issue lacks merit. See Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 53 (Tex. 2003) ("When neither party requests findings of fact and conclusions of law, it is implied that the trial court made all fact findings necessary to support its judgment."); In re T.M.P., 417 S.W.3d 557, 563 (Tex. App.-El Paso 2013, no pet.) ("Where . . . the trial court does not file findings of fact and conclusions of law, we imply all necessary findings of fact to support the trial court's order."); see also In re G.S., No. 13-22-00240-CV, 2022 Tex.App. LEXIS 8776, at **9-10 (Tex. App.-Corpus Christi Dec. 1, 2022, no pet. h.) (mem. op.) (overruling a parent's section 263.401(b) complaint after concluding that the requisite "extraordinary circumstance" and "best interest" findings could be implied from the trial court's ruling); D.J. v. Tex. Dep't of Family & Protective Servs., No. 03-20-00454-CV, 2021 Tex.App. LEXIS 1565, at *25 (Tex. App.-Austin Mar. 3, 2021, no pet.) (mem. op.) ("[O]nce the trial court denies a [section] 263.401(b) motion, the court's order or judgment includes any implied findings necessary to support the denial."); cf. In re G.X.H., 627 S.W.3d 288, 299 (Tex. 2021) (noting that section 263.401 of the Texas Family Code does not require the trial court to make the required extraordinary circumstances and best-interest findings in writing, that such findings can be made orally on the record, and that in the absence of a reporter's record on the issue, courts can presume the trial court made the necessary findings to support the extension orally on the record at the hearing").
SUFFICIENCY OF THE EVIDENCE SUPPORTING THE PREDICATE FINDINGS FOR TERMINATION
In her second and third issues, R.P. complains that the predicate findings under subsections 161.001(b)(1)(D) and (b)(1)(E) are not supported by legally and factually sufficient evidence. A review of the record shows that R.P.'s parental rights were terminated under subsections 161.001(b)(1)(D), (b)(1)(E), and (b)(1)(O). R.P. does not challenge the trial court' finding under subsection (b)(1)(O). Therefore, the trial court's finding under subsection (b)(1)(O) is binding on this Court, and we need not address it in this opinion. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); In re J.G., 592 S.W.3d 506, 506 n.2 (Tex. App.-Waco 2019, no pet.); see also In re K.L.G., No. 14-09-00403-CV, 2009 Tex.App. LEXIS 8011, at *7 (Tex. App.-Houston [14th Dist.] Oct. 15, 2009, no pet.) (mem. op.) ("Appellant did not raise a challenge to the predicate ground in subsection Q or to the best-interest finding. Second, because they were unchallenged, findings supporting termination of appellant's parental rights to K.L.G. are binding, and no review of the other predicate grounds or the best-interest finding is necessary." (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003))). Further, because R.P. does not challenge all of the predicate findings supporting termination of her parental rights, we affirm the trial court's termination order as to R.P. See TEX. FAM. CODE ANN. § 161.001(b) (stating that in an involuntary termination proceeding, the Texas Department of Family and Protective Services (the "Department") must establish: (1) at least one ground under subsection (b)(1) of section 161.001; and (2) that termination is in the best interest of the child); In re A.V., 113 S.W.3d at 362 ("Only one predicate finding under section 161.001[(b)](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 J.S.S., 594 S.W.3d 493, 503 (Tex. App.- Waco 2019, pet. denied); see also In re K.L.G., 2009 Tex.App. LEXIS 8011, at *7. Accordingly, we overrule R.P.'s second and third issues.
In her brief, R.P. specifically states that she does not contest the legal or factual sufficiency of the evidence supporting termination of her parental rights under section 161.001[(b)](1)(O).
And even if R.P. had properly raised her sufficiency challenges to subsections (b)(1)(D) and (b)(1)(E) by challenging all predicate grounds in the judgment, we note that the reason-domestic violence-expressed to support the termination of R.G.'s parental rights under subsection (b)(1)(E) equally applies to R.P. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). In addition, the evidence demonstrates that R.P. abuses drugs, which also supports a finding of endangerment under subsection (b)(1)(E). See id.; see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) ("We accordingly agree that a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." (citations omitted)); In re S.N., 272 S.W.3d 45, 52 (Tex. App. -Waco 2008, no pet.) ("Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child."); In re S.D., 980 S.W.2d 758, 763 (Tex. App.-San Antonio 1998, pet. denied) (stating that a history of illegal drug use is conduct that subjects a child to a life that is uncertain and unstable, thus endangering the physical and emotional well-being).
R.G.'s Appellate Issue
In his sole issue on appeal, R.G. argues that the predicate findings under subsections 161.001(b)(1)(D), (b)(1)(E), and (b)(1)(O) are not supported by legally and factually sufficient evidence.
The standards of review for legal and factual sufficiency in cases involving the termination of parental rights are well established and will not be repeated here. See In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002); see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.-Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021). If multiple predicate violations are found by the factfinder, we will affirm based on any one finding because only one finding is necessary for termination of parental rights. See In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.-Waco 2019, pet. denied). Moreover, we give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge "of the credibility of the witnesses and the weight to give their testimony." Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.-Houston [1st Dist.] 2010, pet. denied).
Subsection 161.001(b)(1)(E) of the Family Code provides that a parent's rights may be terminated if it is found that the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). To "endanger" means to expose to loss or injury, to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Under subsection 161.001(b)(1)(E), the relevant inquiry is whether evidence exists that the endangerment of the child's well-being was the direct result of the parent's conduct, which includes acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.-Fort Worth 2004, pet. denied). It is not necessary, however, that the parent's conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533. The specific danger to the child's wellbeing may be inferred from parental misconduct standing alone. Id. In making this determination, a factfinder court may consider conduct that occurred before and after the child's birth, in the child's presence and outside the child's presence, and before and after removal by the Department. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). A parent's past endangering conduct may create an inference that the parent's past conduct may recur and further jeopardize a child's present or future physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.-Fort Worth 2001, no pet.).
Here, the record reflects that R.P. and R.G. were married, but that their relationship was volatile and violent. Hearne Police Officer Jason McCord testified that, on February 15, 2020, R.P. came to the police station in a wedding dress that had "multiple blood markings on the dress from [what] looked like maybe a[n] altercation occurred." R.P. was very upset and stated that she had an altercation with R.G. at their house. Officer McCord later spoke with R.G. and noticed that he had a laceration on his index finger that was "bleeding pretty bad" and a laceration on his lower back. R.G. explained that R.P. has mental-health issues and that this altercation was the result of her having an "episode" and he tried to restrain her after she chased him with a shovel handle and a box cutter.
R.P. testified that she married R.G. in February 2020, and that N.G. was born in November 2020. R.P. recalled that when N.G. was two months old, she got into an altercation while at the house of R.G.'s sister. R.P. thought that R.G. was there. R.P. was drunk, and several people hit her on the head causing her to black out. Later, on February 22, 2021, when N.G. was three months old, the police came to the house and discovered a crack pipe in R.P.'s car. R.P. claimed she did not know whose crack pipe was in her car, and she denied that it was hers.
On March 14, 2021, Officer Adrian Flores of the Calvert Police Department responded to a family disturbance at R.P. and R.G.'s residence. He observed R.P. "walking down the street. She was half nude carrying a large knife with a six or seveninch blade inside her right hand. Pretty much walking away from the area that we already had a call at." The first call referred to a "female . . . stabbing the husband." When Officer Flores spoke with her, R.P. stated that R.G. pulled down her pants and tried to sexually assault her. Officer Flores then spoke with R.G. who recounted,
He [R.G.] told me that he had received a telephone call the night before in reference to his wife [R.P.] being stopped through another law enforcement agency, that he needed to go pick her up, that when they arrived back to
the house he observed some marijuana inside of her bra and when he tried to pretty much get that from her that they started going into a struggle.
Officer Flores observed the marihuana in question on the kitchen table while N.G. was at home. R.G. told Officer Flores that R.P. "said that she was going to kill the baby if he didn't give her back the marijuana." R.G. "football tackled her," and she tried to stab him. Officer Flores remembered that R.P. smelled of marihuana and acted as if she was high.
Clara Ortega, R.P. and R.G.'s neighbor, confirmed that on March 14, 2021, she looked out the window and heard yelling "[s]o I looked across the street and [R.G.] was running with the baby in his arm and [R.P.] was chasing him with a butcher knife." R.G. was "running right to left, almost tripped, almost dropped the baby." Ortega also testified that she heard R.P. and R.G. arguing "at least monthly" with R.P. and R.G. "talking loud to each other" and that they were both equally aggressive.
With regard to the March 14, 2021 incident, R.G. testified that R.P. had a knife, but he could not recall how he got cut. And despite reports to the contrary, R.G. could not recall whether he: (1) banged R.P.'s head against a pickup truck; (2) put his hands around her neck; or (3) had her on the ground choking her. He did deny trying to sexually assault R.P. in this incident.
R.P. and R.G. were involved in another domestic incident on July 20, 2021. In this incident, R.P. and R.G. allegedly punched and jumped on top of R.G.'s ex-girlfriend, S.B. This altercation resulted in S.B. hitting her back on the counter, bruising her face, and seeking medical treatment at the hospital. S.B. recounted that she previously dated R.G., and they had a son. Similar to his relationship with R.P., R.G. had frequent verbal and physical altercations with S.B. In fact, according to S.B., there was an order of protection against R.G. regarding S.B. and her children because of multiple incidents of fighting between them.
Yet another physical altercation occurred between R.P. and R.G. on April 13, 2022. According to R.P., on April 13, 2022, R.G. gave her a back massage, and when R.P. asked R.G. to do it a different way, R.G. "rolled over and he hit me in my eye with his elbow." Upon further questioning, R.P. acknowledged that she had told police at the time that she "had asked [R.G.] to rub [her] back differently because it was hurting and he became belligerent and started throwing stuff in the house" and then hit her once.
In his testimony, R.G. minimized or failed to recall each of the incidents of domestic violence. However, he admitted that he has several criminal convictions, including an August 29, 2011 conviction for Assault Family Violence that was enhanced to a third-degree felony based on a prior offense. Although he claimed to not recall this conviction, he emphasized that it involved his brother. R.G. also admitted to an assault bodily injury-family violence misdemeanor conviction for an offense committed on July 27, 2008. He has another misdemeanor assault bodily injury conviction for an offense that occurred on August 9, 2008. R.G. also has convictions for escape from custody and aggravated robbery.
Regarding the multiple instances of domestic violence, R.G. noted that there are times when he grabs and holds R.P., which "sometime that may be perceived as different" than what he intends. Nevertheless, the situations often become physical, and R.G. acknowledged that he is probably the aggressor because he is the one "with more strength and more force when I'm talking or something of that nature." R.G. could not recall how many times the police were called out to the house after N.G.'s birth.
Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment. See In re B.J.B., 546 S.W.2d 674, 677 (Tex. Civ. App.-Texarkana 1977, writ ref'd n.r.e.) (considering father's lack of self-control and violent propensities); see also Sylvia M. v. Dallas County Welfare Unit, 771 S.W.2d 198, 20104 (Tex. App.-Dallas 1989, no writ) (considering "volatile and chaotic" marriage, altercation during pregnancy, and mother's repeated reconciliation with abusive spouse). Abusive or violent conduct by a parent or other resident of a child's home may produce an environment that endangers the physical or emotional well-being of a child. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.-Fort Worth 2004, pet. denied); In re B.R., 822 S.W.2d 103, 106 (Tex. App.-Tyler 1991, writ denied); see Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (noting that violent or abusive conduct by someone within the household is an environment that endangers children).
The evidence showed multiple instances of domestic violence, both before and after N.G.'s birth, which demonstrates a propensity for violence that may be considered as evidence of endangerment. See Sylvia M., 771 S.W.2d at 201-04; see also Ziegler, 680 S.W.3d at 678; In re B.J.B., 546 S.W.2d at 677. Additionally, R.G.'s criminal history, which includes several convictions for violent behavior, further demonstrates R.G.'s propensity for violence that endangers the physical and emotional well-being of N.G.
We therefore conclude that the evidence is sufficiently clear and convincing to support the trial court's findings under subsection (b)(1)(E). Looking at the evidence in the light most favorable to the findings of the trial court, we conclude that a reasonable factfinder could have formed a firm conviction that R.G. "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); see also In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. Moreover, the disputed evidence on the matter is not so significant that the factfinder could not have formed a firm conviction or belief that its finding was true. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); see also In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266-67.
And because only one predicate finding is necessary for the termination of parental rights, we need not address R.G.'s complaints regarding the predicate grounds under subsections (b)(1)(D) and (b)(1)(O). See TEX. R. APP. P. 47.1, 47.4.; see also In re J.S.S., 594 S.W.3d at 503; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019). Accordingly, we overrule R.G.'s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
(Chief Justice Gray concurring with a note) [*]
Affirmed
[*](Chief Justice Gray concurs in the Court's judgment. A separate opinion will not issue.)