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In re B.B.

Court of Appeals of Texas, Tenth District

May 23, 2019

IN THE INTEREST OF B.B., B.B., AND S.B., CHILDREN

          From the 278th District Court Leon County, Texas Trial Court No. 17-0491CV

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          TOM GRAY, CHIEF JUSTICE.

         Haley and Skyler B. appeal from a judgment that terminated the parent-child relationship between them and their children, B.B., B.B., and S.B. See Tex. Fam. Code Ann. § 161.001. The parents[1] complain that the trial court abused its discretion by denying their motions for extension of the case and that the evidence was factually insufficient for the trial court to have found by clear and convincing evidence that termination was in the best interest of the children. Because we find no reversible error, we affirm the judgment of the trial court.

         Motion for Extension

         In their first issue, the parents complain that the trial court abused its discretion by denying their motions to extend the dismissal deadline for 180 days pursuant to Section 263.401(b) of the Family Code. In order to extend the trial court's jurisdiction beyond the one-year deadline set forth in Section 263.401(a), the trial court must find that "extraordinary circumstances necessitate the child remaining in the temporary managing conservator ship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child." Tex. Fam. CODE Ann. § 263.401(b). In making this determination, the focus is on "the needs of the child[ren]." In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.-Fort Worth 2012, pet. denied) (en banc). Actions that are "considered to be the parent's fault" will generally not constitute an extraordinary circumstance. In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.- Texarkana 2013, pet. denied).

         The Department was named the temporary managing conservator of the children on February 1, 2018 after the parents did not attend a hearing on a motion filed by the Department to order the parents to participate in services. The parents' whereabouts were unknown at that time and the children were staying with their maternal grandmother and her husband. The parents had not been served with the motion because they were unable to be located. The children were formally placed with the maternal grandmother by the Department.

         The parents made a general appearance at the status hearing in early April, at which time they signed the service plan and were ordered to take a drug test. The parents took the drug test and had a visit with the children a few days later. No other visits with the children took place during the proceedings.

         The parents did not attend the first permanency hearing in July. At that hearing, evidence was presented that the oldest child and the middle child were needing therapy. The Department had requested that the parents take drugs tests on several occasions when the mother contacted them in June, but neither parent took a test when requested. The mother eventually completed two hair tests during the pendency of the proceedings, one in July and one in October, both of which were positive for methamphetamines. The father tested positive for methamphetamines in April around the time of the first visit. A second progress hearing was conducted in August at which time the therapist for the older two children recommended that no visitation be allowed because of the emotional issues the children were having due to the stress and fear of potentially having to visit with their parents. The trial court entered an order that no visitation would be allowed.

         The parents finally began efforts to complete the service plan in August or September, but did not begin therapy until October and missed two of seven sessions with their therapist. They did not have a stable residence or steady employment throughout the proceedings and were living with a couple whose children were also in the conservatorship of the Department at the time of the motion to extend.

         In early November, in spite of the children's therapist's concerns, the trial court ordered that a therapy session take place with the children and each of their parents separately before the end of November. Two days later, the mother was charged with child endangerment relating to an incident involving her fourth child who she had given birth to approximately one week before her arrest.[2] The mother was accused of endangering the child by driving while under the influence of narcotics. The father was arrested for outstanding warrants at that same time. Each parent spent around two weeks in jail. The children's therapist spoke with the parents' therapist and they agreed that a visit should not occur due to the emotional distress of the children and the parents' lack of participation and progress in therapy. The oldest child began expressing suicidal ideations around this time, which the therapist believed was related to fear and anxiety over having to see his parents.

         The final trial was originally scheduled for early December but was continued by the agreement of the parties to early January of 2019. No complaint was raised to the trial court by the parents regarding the missed visit at the December hearing. Each parent filed a motion to extend the trial court's jurisdiction for 180 days which was heard immediately prior to the trial. After hearing evidence, including testimony from the children's therapist and the guardian ad litem that extending the trial court's jurisdiction would be very harmful to the older children, the trial court denied the parents' motions.

         The parents argue that the lack of visitation with the children, not by their own fault but that of the Department and the therapist, should have resulted in the extension of the proceedings so that they can visit with the children and show that they could provide a safe and stable home for the children and the trial court's failure to grant the extension was an abuse of discretion. However, the evidence establishes that it was the parents' actions and inaction during the proceedings that resulted in the denial of visitation, and there was sufficient evidence for the trial court to have found that there were no extraordinary circumstances to justify extending the court's jurisdiction and that the extension was not in the best interest of the children. The trial court did not abuse its discretion by denying the motions for extension of the trial court's jurisdiction. We overrule issue one.

         Best ...


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