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In re A.B.

Court of Appeals of Texas, Seventh District, Amarillo

October 15, 2019


          On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. DR-2018D-059, Honorable Jack Graham, Associate Judge Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.



         In this accelerated appeal, appellant, father, seeks reversal of the trial court's judgment terminating his parental rights to A.B.[1] In two issues, father contends that the trial court erred in refusing to grant his motion for an extension of time pursuant to section 263.401(b) of the Family Code and asserts that the evidence is insufficient to support the trial court's finding that termination is in the best interest of A.B. Finding no error, we affirm the judgment of the trial court.

         Factual and Procedural Background

         In March of 2018, the Texas Department of Family and Protective Services became involved with A.B. after allegations of drug use by mother and father were reported to the Department. The report alleged that A.B. tested positive for methamphetamine at the time of her birth, indicating mother's use of the drug during her pregnancy. A.B. suffered drug withdrawals and significant health issues after her birth. During the investigation by the Department, mother and father tested positive for methamphetamine and mother acknowledged that she used methamphetamine throughout her pregnancy. The father admitted to a history of methamphetamine use and a prior conviction for injury to a child. The Department obtained an order of emergency protection of A.B. and removed her from mother and father's care.

         In April 2018, the Department filed a petition seeking conservatorship and termination of parental rights. Following an adversary hearing, the Department was appointed temporary managing conservator and A.B. and a sibling were placed with a foster family in Canyon.

         The Department developed a service plan for father. According to the plan, father was required to: abstain from the use of illegal drugs; submit to random drug screens; locate stable housing and employment; take parenting classes; participate in a substance abuse assessment with Outreach, Screening, Assessment, and Referral (OSAR) and follow recommendations; complete a psychosocial assessment; attend individual counseling; participate in rational behavior therapy (RBT); attend visits with A.B.; and pay child support and medical support.

         At the final hearing in April of 2019, father's attorney asked for an extension of time so that he could complete his court-ordered services. After father's testimony, the request for an extension was denied, and the Department investigator and caseworker testified.

         The Department presented testimony concerning father's lack of participation in the services outlined in his plan of service. According to the caseworker, father did not regularly visit or maintain contact with A.B., he did not pay his court-ordered child support or medical support, he did not submit to random drug screens when requested in October and November, he failed to maintain employment for six months, and he did not maintain stable housing. Additionally, father did not submit to a drug and alcohol assessment, did not participate in individual counseling or RBT, and did not complete a psychosocial assessment.

         According to father, he was sober for five to six months after the Department became involved, and he attended six parenting classes. In August, he was involved in an automobile accident and sustained a head injury that required him to be hospitalized for a week. He then had "a bump in the road" and used methamphetamine. The last time he used methamphetamine was February 1, 2019. After that, he moved from Hereford to Austin to get away from drugs and "to make a better living for me and my daughter." A courtesy worker was assigned to father when he moved to Austin, but he did not complete any court-ordered services. He returned to Hereford in March to attend the final hearing which was originally scheduled in March. Since he has been in Hereford awaiting the final hearing, he worked "day labor" at the feed yard. After the hearing, he plans to move to Killeen to work construction and live with his girlfriend and cousin. He worked at a Sonic Drive-In for about six weeks following his brief move to Austin. By father's admission, he had been clean for "two and a half months" at the time of the final hearing. Father is not asking for A.B. to be placed with him immediately because, as he said, "I realize I am not ready for that at this moment."

         The Department's plan for A.B. is adoption. A.B. was placed with one of her brothers in a foster home in Canyon. A.B. is bonded with her brother. At the time of trial there was a pending home study on a maternal uncle who lives in Houston. The Department's goal is to place A.B. with her two brothers in the uncle's home.

         The trial court terminated father's parental rights on the grounds of endangering conditions, endangerment, previous conviction for injury to a child, constructive abandonment, failure to comply with a court order that established actions necessary to retain custody of the child, and use of a controlled substance in a manner that endangered the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (L), (N), (O), and (P) (West Supp. 2018).[2] The trial court also found that termination was in the best interest of A.B. See § 161.001(b)(2).

         Applicable Law

         A parent's right to the "companionship, care, custody[, ] and management" of his or her child is a constitutional interest "far more precious than any property right." Santoskyv. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); see In re M.S.,115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith,685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V.,113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent ...

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