in the Interest of G.R.M., a Child ( 2011 )


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  •                                      MEMORANDUM OPINION
    No. 04-11-00073-CV
    IN THE INTEREST OF G.R.M, A CHILD
    From the 285th Judicial District Court, Bexar County, Texas
    Trial Court No. 2010-PA-00215
    Honorable Fred Shannon, Judge Presiding
    Opinion by:       Catherine Stone, Chief Justice
    Sitting:          Catherine Stone, Chief Justice
    Rebecca Simmons, Justice
    Steven C. Hilbig, Justice
    Delivered and Filed: June 22, 2011
    AFFIRMED
    This is an appeal from the trial court’s order terminating Jessica R.’s parental rights to her
    three year old child, G.R.M. 1 The trial court terminated Jessica’s parental rights to G.R.M.
    following a bench trial, and Jessica filed a motion for new trial and statement of points on
    appeal. The trial court denied Jessica’s motion for new trial, but found that the appeal is not
    frivolous. On appeal, Jessica claims: (1) there is legally and factually insufficient evidence to
    prove she committed any of the grounds for termination enumerated in the Texas Family Code;
    (2) there is legally and factually insufficient evidence to prove termination is in the best interest
    of G.R.M.; (3) the trial court abused its discretion by denying her request for a 180-day extension
    1
    To protect the privacy of the parties in this case, we identify the child by his initials and the child’s mother by her
    first name only. See TEX. FAM. CODE ANN. § 109.002(d) (West 2008).
    04-11-00073-CV
    under section 263.401 of the Texas Family Code; (4) the trial court abused its discretion by
    denying her request for a continuance; and (5) the trial court abused its discretion by denying her
    request for a jury trial. We affirm.
    INVOLUNTARY TERMINATION
    A trial court may involuntarily terminate the parent-child relationship if it finds by clear
    and convincing evidence that: (1) the parent has committed at least one of the grounds for
    involuntary termination enumerated in section 161.001(1) of the Texas Family Code; and (2)
    termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West Supp.
    2010); In re J.L., 
    163 S.W.3d 79
    , 84 (Tex. 2005). Although the two elements must be proven
    independently, “the same evidence may be probative of both issues.” In re C.H., 
    89 S.W.3d 17
    ,
    28 (Tex. 2002).
    Proceedings to terminate a parent-child relationship under the Family Code require proof
    by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(1); In re J.O.A., 
    283 S.W.3d 336
    , 344 (Tex. 2009). Clear and convincing evidence is defined as “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.” In re J.F.C., 
    96 S.W.3d 256
    , 264 (Tex.
    2002). If a parent challenges the legal sufficiency of the evidence:
    [A] court should look at all the evidence in the light most favorable to the finding
    to determine whether a reasonable trier of fact could have formed a firm belief or
    conviction that its finding was true. To give appropriate deference to the
    factfinder’s conclusions and the role of a court conducting a legal sufficiency
    review, looking at the evidence in the light most favorable to the judgment means
    that a reviewing court must assume that the factfinder resolved disputed facts in
    favor of its finding if a reasonable factfinder could do so. A corollary to this
    requirement is that a court should disregard all evidence that a reasonable
    factfinder could have disbelieved or found to have been incredible. This does not
    mean that a court must disregard all evidence that does not support the finding.
    Disregarding undisputed facts that do not support the finding could skew the
    analysis of whether there is clear and convincing evidence. If, after conducting its
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    legal sufficiency review of the record evidence, a court determines that no
    reasonable factfinder could form a firm belief or conviction that the matter that
    must be proven is true, then that court must conclude that the evidence is legally
    insufficient.
    
    Id. at 266.
    “When the factual sufficiency of the evidence is challenged, only then is disputed or
    conflicting evidence under review.” In re 
    J.O.A., 283 S.W.3d at 345
    . “If, in light of the entire
    record, the disputed evidence that a reasonable factfinder could not have credited in favor of the
    finding is so significant that a factfinder could not reasonably have formed a firm belief or
    conviction, then the evidence is factually insufficient.” In re 
    J.F.C., 96 S.W.3d at 266
    . In
    reviewing termination findings for factual sufficiency, we give due deference to the factfinder’s
    findings and do not supplant the judgment with our own. In re H.R.M., 
    209 S.W.3d 105
    , 108
    (Tex. 2006).
    A. Statutory Grounds for Termination
    Section 161.001 provides that a court may terminate the parent-child relationship if it
    determines the parent has:
    (I) contumaciously refused to submit to a reasonable and lawful order of a court
    under Subchapter D, Chapter 261;
    ***
    (N) constructively abandoned the child who has been in the permanent or
    temporary managing conservatorship of the Department of Family and Protective
    Services or an authorized agency for not less than six months, and:
    (i)     the department or authorized agency has made reasonable efforts
    to return the child to the parent;
    (ii)    the parent has not regularly visited or maintained significant
    contact with the child; and
    (iii)   the parent has demonstrated an inability to provide the child with a
    safe environment; [or]
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    04-11-00073-CV
    (O) failed to comply with the provisions of a court order that specifically
    established the actions necessary for the parent to obtain the return of the child
    who has been in the permanent or temporary managing conservatorship of the
    Department of Family and Protective Services for not less than nine months as a
    result of the child’s removal from the parent under Chapter 262 for the abuse or
    neglect of the child;
    TEX. FAM. CODE ANN. § 161.001(1)(I),(N),(O). The trial court found by clear and convincing
    evidence that Jessica had violated each of these subsections of the Family Code.
    Jessica contends the evidence is insufficient to support the trial court’s findings under
    subsection (I) because the Department presented no evidence concerning the requirements of the
    “‘reasonable and lawful order’ with which [she] . . . allegedly refused to comply.”              It is
    undisputed by the parties that the “reasonable and lawful order” at issue relates to the trial court’s
    order in connection with a motion to participate filed in the underlying case, which set out the
    actions necessary for Jessica to maintain her parental rights. Although the order on the motion to
    participate was not introduced during the bench trial below, the trial court was presented with
    details about the provisions of the order from several different sources. The record shows the
    trial court had an affidavit before it from the original caseworker assigned to G.R.M.’s case,
    Juanita Williams, addressing the critical aspects of the order on the motion to participate.
    Williams’s affidavit, which was attached to the Department’s original petition to terminate
    Jessica’s parental rights, explained that the court had ordered Jessica to attend parenting classes,
    undergo drug assessment and treatment, and participate in counseling and homemaking services.
    The record also shows the trial court heard testimony about the requirements of the order on the
    motion to participate from G.R.M.’s current caseworker, Kristina Ramirez. Ramirez confirmed
    at trial that Jessica was previously ordered to participate in services, including drug treatment.
    Given the content of Williams’s affidavit and Ramirez’s testimony, we reject Jessica’s
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    04-11-00073-CV
    contention that the record is devoid of evidence concerning the requirements of the “reasonable
    and lawful order” that she refused to comply.
    Next, Jessica argues the evidence is insufficient to support the trial court’s findings under
    subsection (I) because the Department failed to present evidence that she contumaciously refused
    to comply with the court’s order on the motion to participate. Williams’s affidavit shows that
    shortly after the trial court entered its order requiring Jessica to undergo drug assessment and
    treatment, Jessica attended drug court. The drug court referred Jessica to an in-patient treatment
    program, where Jessica stayed no more than nine hours before leaving the program. According
    to caseworker Ramirez, Jessica made several other attempts to enter drug treatment following the
    drug court’s initial referral to the in-patient program. Jessica, however, failed to complete any of
    the drug treatment programs she attended. Jessica’s appearance at drug court and her repeated
    efforts to participate in drug treatment demonstrate Jessica was aware of the provisions of the
    order on the motion to participate and attempted to comply with its mandates.
    The record shows that despite the services made available to Jessica to help her turn her
    life around after the entry of the order on the motion to participate, Jessica continued to test
    positive for drugs during the time period she was trying to effectuate a reunification with G.R.M.
    According to her drug test results, Jessica continued to test positive for drugs up until the day of
    the bench trial. When asked about her positive drug test results, Jessica admitted that she took
    anxiety medication for which she did not have a prescription. Moreover, she provided no
    explanation for why she had tested positive for cocaine. Given the evidence before the trial
    court, we believe the court could have formed a firm belief or conviction that Jessica
    contumaciously refused to comply with a reasonable and lawful order establishing the actions
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    04-11-00073-CV
    necessary for her to maintain her parental rights. We therefore hold the evidence is both legally
    and factually sufficient to support the trial court’s findings under section 161.001(1)(I). 2
    B. Best Interest of the Child
    Having determined the record supports the trial court’s finding that Jessica engaged in
    conduct in violation of at least one section of the Family Code, we turn to whether termination is
    in the best interest of G.R.M. See TEX. FAM. CODE ANN. § 161.001(2). Factors a trier of fact
    may consider in determining the best interest of the child include: (1) the desires of the child; (2)
    the emotional and physical needs of the child now and in the future; (3) the emotional and
    physical danger to the child now and in the future; (4) the parental abilities of the individual
    seeking custody; (5) the programs available to assist the individual to promote the best interest of
    the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the
    stability of the home or proposed placement; (8) the acts or omissions of the parent which may
    indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the
    acts or omissions of the parent. Holley v. Adams, 
    544 S.W.2d 367
    , 371-72 (Tex. 1976). These
    factors are not exhaustive, and undisputed evidence of just one factor may be sufficient in a
    particular case to support a finding that termination is in the best interest of the child. In re 
    C.H., 89 S.W.3d at 27
    . “[T]he Holley factors focus on the best interest of the child rather than the best
    interest of the parent.” In re D.P.R.V., No. 04-09-00644-CV, 
    2010 WL 2102989
    , at *1 (Tex.
    App.—San Antonio May 26, 2010, no pet.) (mem. op.).
    Reviewing the record, we believe sufficient evidence exists to support the trial court’s
    finding that termination is in the best interest of G.R.M. In this case, G.R.M. was too young to
    assert his desire with regard to his mother. See In re T.N.J., No. 04-05-00586-CV, 
    2005 WL 2
      Because the record supports the trial court’s findings as to section 161.001(1)(I), we need not address Jessica’s
    complaints concerning the grounds for termination enumerated in subsections N and O of the Family Code.
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    04-11-00073-CV
    3115913, at *4 (Tex. App.—San Antonio Nov. 23, 2005, no pet.) (mem. op.) (recognizing child,
    who was about three years old, was too young to state a desire regarding the termination of his
    father’s parental rights). The record reveals Jessica had not seen G.R.M. for at least a year and
    had not made any child support payments for G.R.M. prior to the termination of her parental
    rights. 3 In addition, Jessica is presently unemployed. See In re D.S., 
    176 S.W.3d 873
    , 879 (Tex.
    App.—Fort Worth 2005, no pet.) (holding evidence of a parent’s unstable lifestyle, including
    inability to provide a stable home and remain gainfully employed, may support a factfinder’s
    conclusion that termination is in the child’s best interest), superseded by statute on other grounds
    as recognized in In re D.A.R., 
    201 S.W.3d 229
    , 230-31 (Tex. App.—Fort Worth 2006, no pet.).
    The trial court heard evidence establishing Jessica is a drug user and that she continued using
    drugs even though her future with G.R.M. hinged upon her avoidance of drugs. See In re S.B.,
    
    207 S.W.3d 877
    , 887-88 (Tex. App.—Fort Worth 2006, no pet.) (noting a parent’s drug use may
    support a finding that termination is in the best interest of the child). The trial court further heard
    that G.R.M. was presently residing with a relative, who was meeting the child’s needs and
    providing the child with a stable and appropriate home environment. 4 In light of our review of
    the record, we conclude the trial court could have reasonably formed a firm belief or conviction
    that termination of Jessica’s parental rights was in G.R.M.’s best interest. 5 We therefore hold the
    3
    See 
    id. (concluding termination
    was in best interest of the child where father, among other things, had not see his
    child for at least eight months and provided no monetary support for the child during the year prior to the hearing).
    Although Jessica alleges she attempted to maintain contact with G.R.M.’s caregiver and voluntarily offered to
    support the child to the best of her ability, the trial court was the finder of fact and credibility of the witnesses.
    4
    This relative, G.R.M.’s paternal grandmother, intends to adopt the child.
    5
    Jessica claims termination of her parental rights was not appropriate because she got on the right path at the time
    of the termination trial. The record shows Jessica has begun looking for employment, is now attending parenting
    classes and Narcotics Anonymous, and participates in methadone treatment. She is also planning to start drug
    counseling. Although the trial court heard evidence regarding Jessica’s recent efforts, her cooperation has been
    questionable and she has not complied with the Department’s service plan on a long-term basis. Given the nature of
    the other evidence before the trial court, we cannot say such evidence requires us to set aside the trial court’s
    judgment.
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    04-11-00073-CV
    evidence is both legally and factually sufficient to support the trial court’s best interest finding.
    Jessica’s first issue on appeal is overruled.
    MOTION FOR EXTENSION OF TIME
    Next Jessica asserts the trial court abused its discretion by denying her request for a 180-
    day extension under section 263.401 of the Texas Family Code, which she sought on the ground
    that she needed more time to accomplish the tasks in her service plan. The Family Code
    provides that, unless trial has commenced or an extension has been granted, a case filed by the
    Department requesting termination of parental rights shall be dismissed “on the first Monday
    after the first anniversary of the date the court rendered a temporary order appointing the
    [D]epartment as temporary managing conservator.” TEX. FAM. CODE ANN. § 263.401(a) (West
    2008). Section 263.401(b) authorizes a trial court to grant up to a 180-day extension if “the court
    finds that extraordinary circumstances necessitate the child remaining in the temporary managing
    conservatorship of the [D]epartment and that continuing the appointment of the [D]epartment as
    temporary managing conservator is in the best interest of the child.” 
    Id. § 263.401(b).
    We
    review a trial court’s determination on an extension motion for an abuse of discretion. In re
    D.W., 
    249 S.W.3d 625
    , 647 (Tex. App.—Fort Worth 2008), pet. denied, 
    260 S.W.3d 462
    (Tex.
    2008).
    Here, Jessica failed to provide any evidence of an extraordinary circumstance that would
    warrant an extension of time. The record shows Jessica failed to perform necessary steps in her
    service plan as a result of her own choices. Jessica knew she was to engage in various services,
    but waited until the time of her bench trial, approximately twelve months later, to begin
    complying with her service plan. The trial court was clearly within its discretion to deny
    Jessica’s request for an extension under these circumstances. See In re K.P., No. 2-09-028-CV,
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    04-11-00073-CV
    
    2009 WL 2462564
    , at *4 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (mem. op.) (“[W]hen
    a parent, through his or her own choices, fails to comply with a service plan and then at the time
    of the termination trial requests a continuance or an extension of the statutory dismissal deadline
    in order to complete the plan, the trial court does not abuse its discretion by denying the
    continuance or extension.”); see also Shaw v. Tex. Dep’t of Family & Protective Servs., No. 03-
    05-00682-CV, 
    2006 WL 2504460
    , at *8 (Tex. App.—Austin Aug. 31, 2006, pet. denied) (mem.
    op.) (holding appellant’s need for additional time to complete service plan after failing to make
    progress on it for eight months did not amount to “extraordinary circumstances” that necessitated
    the granting of a continuance). Jessica’s second issue on appeal is overruled.
    CONTINUANCE
    Jessica also contends the trial court abused its discretion by denying her request for a
    continuance. According to Jessica, the trial court should have granted her a continuance because
    a material witness was unavailable on the day of her bench trial. Jessica further argues a
    continuance was warranted because she wanted to proceed to mediation before going to trial. 6
    We review a trial court’s denial of a continuance motion for an abuse of discretion.
    Villegas v. Carter, 
    711 S.W.2d 624
    , 626 (Tex. 1986); In re H.R., 
    87 S.W.3d 691
    , 701 (Tex.
    App.—San Antonio 2002, no pet.). Rule 251 of the Texas Rules of Civil Procedure provides that
    a motion for a continuance shall not be granted except for sufficient cause supported by an
    affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. When a trial court
    denies a motion that does not comply with Rule 251’s requirements, it is presumed to have
    correctly exercised its discretion. See 
    Villegas, 711 S.W.2d at 626
    .
    In this case, Jessica filed a written motion for continuance. The motion was not verified
    or supported by an affidavit as required by Rule 251. The record also does not reflect that the
    6
    Jessica’s motion for continuance indicated the Department was opposed to mediation.
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    04-11-00073-CV
    parties consented to a continuance, nor does Jessica argue that a continuance should have been
    granted by operation of law. On these facts, we presume that the trial court did not abuse its
    discretion by denying Jessica’s motion. See id.; In re R.A.L., 
    291 S.W.3d 438
    , 448 (Tex. App.—
    Texarkana 2009, no pet.). Jessica’s third issue is overruled.
    REQUEST FOR JURY TRIAL
    Lastly, Jessica alleges the trial court abused its discretion by denying her request for a
    jury trial. The Family Code provides for trial by jury upon request. See TEX. FAM. CODE ANN.
    § 105.002 (West 2008). Under Texas Rule of Civil Procedure 216, to make a proper request for
    a jury trial, a party must make a written request for a jury trial and pay the jury fee at least thirty
    days before the date trial is set. TEX. R. CIV. P. 216 (“No jury trial shall be had in any civil suit,
    unless a written request for a jury trial is filed with the clerk of the court a reasonable time before
    the date set for trial of the cause on the non jury docket, but not less than thirty days in
    advance.”); In re V.R.W., 
    41 S.W.3d 183
    , 194 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
    (“In civil cases, the right of a jury trial is not automatic, but, rather, arises only where a party has
    demanded it and paid the applicable jury fee.”), disapproved on other grounds by In re 
    J.F.C., 96 S.W.3d at 267
    . It is within the discretion of the trial court to deny a jury trial if the party
    requesting the jury trial does so less than thirty days before trial. Martin v. Black, 
    909 S.W.2d 192
    , 197 (Tex. App.—Houston [14th Dist.] 1995, writ denied). An untimely jury demand may
    be granted by the trial court if the request will not: (1) interfere with the court’s docket; (2) delay
    the trial; or (3) injure the opposing party. Hayes v. Wells Fargo Bank, N.A., No. 01-06-00720-
    CV, 
    2007 WL 3038043
    , at *6 (Tex. App.—Houston [1st Dist.] Oct. 18, 2007, pet. denied). We
    review the trial court’s denial of a jury demand under an abuse of discretion standard. Mercedes-
    Benz Credit Corp. v. Rhyne, 
    925 S.W.2d 664
    , 666 (Tex. 1996).
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    04-11-00073-CV
    It is undisputed by the parties that Jessica did not timely request a jury trial because she
    waited until fifteen days before the commencement of the bench trial to file her request. When
    the trial court ruled that no jury would be empanelled, Jessica did not attempt to demonstrate that
    granting the request for a jury trial would not interfere with the court’s docket, delay the trial, or
    injure the opposing party. Accordingly, we hold that the trial court did not abuse its discretion
    by denying Jessica’s request for a jury trial. See Lopez v. Kushner, No. 03-06-00779-CV, 
    2008 WL 399195
    , at *3 (Tex. App.—Austin Feb. 13, 2008, pet. denied); Hayes, 
    2007 WL 3038043
    , at
    *6. Jessica’s fourth issue is overruled.
    CONCLUSION
    Based on the foregoing, we affirm the trial court’s order terminating Jessica’s parental
    rights.
    Catherine Stone, Chief Justice
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