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In re L.E.

Court of Appeals of Texas, Seventh District, Amarillo

January 3, 2020

IN THE INTEREST OF L.E., Z.S.A.-F. AKA Z.A., AND K.A., CHILDREN

          On Appeal from the 242nd District Court Hale County, Texas, Trial Court No. B41701-1708; Honorable Kregg Hukill, Presiding

          Before PIRTLE, PARKER, and DOSS, JJ.

          MEMORANDUM OPINION

          PATRICK A. PIRTLE JUSTICE.

         Appellant, the thirty-nine-year-old mother of eight-year-old L.E., six-year-old Z.S.A.-F., and five-year-old K.A., appeals from the trial court's order terminating her parental rights to her three children.[1] She challenges the trial court's order through five issues, three challenging the sufficiency of the evidence to support the trial court's findings under the predicate grounds, one challenging the sufficiency of the evidence to support the trial court's finding that termination was in the children's best interests, and one arguing the trial court abused its discretion by refusing to extend the dismissal date in this case. We affirm the order of the trial court.

         Background

         In July 2017, the Texas Department of Family and Protective Services received a report concerning domestic violence between the mother and her boyfriend. Both admitted to long-term domestic violence and illicit drug use. At the time of the final hearing, L.E. was placed in one foster home and Z.S.A.-F. and K.A. were placed together in another.

         After receiving the report, the Department filed pleadings including an original petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship and obtained an order for protection of a child in an emergency. A service plan that included tasks the mother was required to perform to secure the return of her children to her care was also put in place. The mother completed some of the services and a monitored return service plan was given to the mother in January 2019. The monitored placement was disrupted when the mother tested positive for cocaine about a month after the children were returned to her care. The mother denied use but did not appear for a test in March 2019. A week later, the mother tested positive for alcohol. The children were removed and the next day, the mother was arrested for an alleged assault that took place in public while she was intoxicated. The Department requested additional services for the mother, but the mother failed to attend the required drug and alcohol assessment and only attended one counseling session.

         A final hearing was held in August 2019, just days before the statutory deadline was to expire.[2] At the outset of the hearing, counsel for the mother asked the court for a continuance to allow the mother to complete the SAFP program that was part of the Department plan as well as the terms of the community supervision imposed by another court. The trial court denied that request. At the final hearing, the Department presented three witnesses to provide evidence to support its alleged grounds for termination of the mother's parental rights. Most significant of that evidence was evidence of the mother's drug and alcohol use.

         After hearing the evidence presented and the arguments of counsel, the trial court found clear and convincing evidence supported termination of the mother's parental rights to her three children under Family Code section 161.001(b)(1) (D), (E), and (O). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2019). It also found clear and convincing evidence to support a finding that termination was in the children's best interests. Tex. Fam. Code Ann. § 161.001(b)(2).

         Analysis

         Applicable Law

         The Texas Family Code permits a court to terminate the parent-child relationship if the Department establishes one or more acts or omissions enumerated under section 161.001(b)(1) and termination of that relationship is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing evidence. Tex. Fam. Code Ann. § 161.206(a-1) (West Supp. 2019). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007 (West 2019).

         Only one statutory ground is needed to support termination. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.-Amarillo 2009, pet. denied). Notwithstanding this point, the Texas Supreme Court has recently instructed appellate courts that due process requires a heightened standard of review under section 161.001(b)(1)(D) or (E), even when another ground for termination is sufficient, because of the potential collateral consequences to an appellant's parental rights concerning another child. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam). The Court held that because section 161.001(b)(1)(M) provides for the termination of parental rights if there is clear and convincing evidence that the parent has had his or her parental rights terminated with respect to another child based on a finding that his or her conduct violated subsection (D) or (E), an appellate court denies an appellant a "meaningful appeal and eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children" if that court does not review a termination based upon either of those subsections. Id. at 235 (citing In re S.K.A., 236 S.W.3d 875, 890 (Tex. App.-Texarkana 2007, pet. denied)).

         Furthermore, in addition to a finding on the predicate grounds for termination, the trial court must also find that termination is in the children's best interests. Id. In reviewing a termination proceeding, the standard for sufficiency of evidence is that discussed in In re K.M.L.,443 S.W.3d 101, 112-13 (Tex. 2014). In reviewing a best interest finding, ...


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