Court of Appeals of Texas, Second District, Fort Worth
In the Interest of R.H. and R.C., Children
Appeal from the 325th District Court Tarrant County, Texas
Trial Court No. 325-604900-16
Gabriel, Bassel, and Womack, JJ.
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).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.
and Roman are half-brothers-they share a mother, L.H.
(Mother).Following his June 2018 birth, Roman's
meconium tested positive for methamphetamine. 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.
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. 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.
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
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.
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.
W.C.'S APPEAL OF THE DENIAL OF HIS MOTION TO EXTEND THE
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.
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.
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.
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
trial court denied W.C.'s motion.
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 ...