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In re R.H.

Court of Appeals of Texas, Second District, Fort Worth

December 12, 2019

In the Interest of R.H. and R.C., Children

          On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-604900-16

          Before Gabriel, Bassel, and Womack, JJ.

          MEMORANDUM OPINION

          LEE GABRIEL JUSTICE

         Appellant R.D. appeals the termination of his parental rights to R.H. (Ryan), and Appellant W.C. appeals the termination of his parental rights to RC. (Roman).[1]In two points, W.C. contends that the trial court erred by denying his motion to extend the dismissal deadline found in Texas Family Code Section 263.401(a) and that the evidence is factually insufficient to support the trial court's finding that termination was in Roman's best interest. See Tex. Fam. Code Ann. § 263.401(a). R.D.'s appointed appellate counsel has filed a brief under Anders v. California, 386 U.S. 738, 744-45 (1967), asserting that R.D.'s appeal is frivolous. Because we overrule W.C.'s two points and because, after carefully reviewing the record, we agree with R.D.'s counsel that R.D.'s appeal is frivolous, we affirm the trial court's termination order.

         I. BACKGROUND

         Ryan and Roman are half-brothers-they share a mother, L.H. (Mother).[2]Following his June 2018 birth, Roman's meconium tested positive for methamphetamine.[3] The Department of Family and Protective Services (the Department) stepped in, and after some initial difficulty locating Mother and Roman, the Department tracked them to a motel in Fort Worth, where they were residing with W.C. and Ryan. The Department removed Ryan and Roman on July 9, 2018, and filed suit to terminate the parental rights of Mother and R.D. to Ryan and Mother and W.C. to Roman.

         Following removal, Meagan McDonald, a caseworker for Child Protective Services, established a service plan for W.C. W.C. was required to engage in random drug testing, drug treatment, and individual counseling. In addition, he was ordered to complete a psychosocial assessment and to refrain from criminal activity. McDonald testified that she met with W.C. on several occasions to discuss his progress in completing the service plan. She testified that she met W.C. on August 22, 2018, and he admitted to using methamphetamine seven days prior. That concerned McDonald because of the short timeline to achieve family reunification and because it demonstrated that W.C. was not getting his life in order. McDonald met with W.C. again on October 24, 2018, and he told her that he had not made any progress in completing the service plan. That same day, McDonald asked W.C. to take a drug test, and she informed him that his refusal to do so would be considered as a presumptively positive test. Despite that warning, W.C. failed to take the drug test.[4] At the termination hearing, McDonald testified that W.C. did not complete a drug assessment, did not start individual counseling, did not complete a psychosocial assessment, and did not successfully complete any items on the service plan.

         The Department also presented evidence of W.C.'s lengthy criminal history- criminal history occurring both before and after Roman's removal. Prior to Roman's removal, W.C. had been convicted of the following felonies: (1) first-degree felony possession with intent to deliver a controlled substance, namely cocaine, for an offense committed on October 5, 1996; (2) first-degree felony delivery of a controlled substance, namely cocaine, for an offense committed on October 5, 1996; (3) second-degree felony burglary of a habitation for an offense committed on December 21, 2005; and (4) state jail felony possession of a controlled substance of less than one gram, namely methamphetamine, for an offense committed on October 20, 2015. The evidence also showed that W.C. committed and was convicted of the following felonies after Roman's removal: (1) second-degree felony burglary of a building for an offense committed on September 11, 2018; (2) a second count of second-degree felony burglary of a building for an offense also committed on September 11, 2018; (3) second-degree felony theft for an offense committed on November 29, 2018; and (4) second-degree felony theft for an offense committed on December 3, 2018. W.C. pleaded guilty to the felonies committed after Roman's removal, and on April 16, 2019, the trial court sentenced him to three years' confinement, with the sentences to run concurrently.[5]

         The Department also put on evidence of domestic violence between W.C. and Mother. McDonald testified that at an initial court hearing in the case, she noticed that Mother had a black eye and bruising on her neck. Mother told McDonald that those injuries were caused by W.C. McDonald testified that she did not have any evidence that W.C. had physically abused Ryan or Roman but that domestic violence between W.C. and Mother placed them in danger.

         On the morning of the termination hearing, W.C. filed a motion to extend the dismissal deadline. The trial court denied W.C.'s motion. The trial court later signed an order of termination, terminating Mother and R.D.'s parental rights to Ryan, terminating Mother and W.C.'s parental rights to Roman, and appointing the Department as Ryan and Roman's permanent managing conservator.

         II. W.C.'S APPEAL OF THE DENIAL OF HIS MOTION TO EXTEND THE DISMISSAL DEADLINE

         In his first point, W.C. appeals the trial court's denial of his motion to extend the dismissal deadline found in Texas Family Code Section 263.401(a). See Tex. Fam. Code Ann. § 263.401(a).

         We review a trial court's decision to grant or deny an extension of the dismissal deadline under the abuse of discretion standard. In re D.W., 249 S.W.3d 625, 647 (Tex. App.-Fort Worth 2008, pet. denied). Pursuant to Section 263.401(a), a termination suit filed by the Department is automatically dismissed on the first Monday after the first anniversary of the date a trial court renders a temporary order appointing the Department as temporary managing conservator if the trial court has neither commenced the trial on the merits nor granted an extension. Tex. Fam. Code Ann. § 263.401(a). The trial court may grant an extension of up to 180 days if it 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." Id. § 263.401(b). The focus is on the needs of the child, whether extraordinary circumstances necessitate the child remaining in the temporary custody of the Department, and whether continuing such is in the best interest of the child. Id.

         Here, on the morning of the termination hearing, W.C. filed a motion to extend the dismissal deadline. The written motion contained no argument, let alone evidence, that extraordinary circumstances necessitated an extension of the dismissal deadline. Rather, W.C.'s motion simply stated:

The circumstances of the case and the needs of the children are such that it would not be in the best interest of the Children to dismiss the suit on that date or to render final orders. An extension of the dismissal date of not longer than 180 days is in the best interest of the Children.

         Just as the termination hearing began, W.C.'s counsel brought the motion to the trial court's attention, and the trial court took up the motion for consideration. Again, W.C. did not offer any evidence of extraordinary circumstances to justify an extension of the dismissal deadline; rather, W.C.'s counsel simply made the following argument:

Your Honor, my client is [W.C.]. He is -- he is currently in the Texas Department of Criminal Justice prison in Abilene, I believe. [W.C] expects to get out of prison in early September, and he -- he has convinced me that he has changed his life, and he would like to tell you about it.[6]

         The trial court denied W.C.'s motion.

         Based on this record, it was entirely within the trial court's discretion to determine that W.C. failed to present any evidence of extraordinary circumstances that would necessitate an extension of the dismissal deadline. See D.W., 249 S.W.3d at 648 (holding that because mother presented no evidence when she presented her motion to extend the dismissal deadline, the trial court did not abuse its discretion by denying her motion); In re AS.J., No. 04-06-00051-CV, 2006 WL 1896335, at *2 (Tex. App.-San Antonio July 12, 2006, no pet.) (mem. op.) (holding trial court did not abuse its discretion by denying parents' motion to extend the dismissal deadline where parents "failed to provide any evidence of an extraordinary ...


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