                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-464-CV


IN THE INTEREST OF T.H. AND R.R.H.,
CHILDREN


                                    ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                 I. INTRODUCTION

      Appellant J.H. appeals the termination of his parental rights to his

children, T.H. and R.R.H. In eleven issues, J.H. argues that the evidence is

legally and factually insufficient to support the termination order, that the trial

court abused its discretion and infringed upon his constitutional rights by




      1
          … See Tex. R. App. P. 47.4.
proceeding with part of the termination trial in his absence, and that family

code sections 263.405(b) and 263.405(i) are unconstitutional. We will affirm.

                II. B RIEF F ACTUAL AND P ROCEDURAL B ACKGROUND

      J.H. and A.S. had a five year volatile, “strifeful” relationship. They never

married, they lived together discontinuously, and domestic violence and illegal

narcotics use, which included marijuana and methamphetamines, occurred in

the relationship.

      J.H. and A.S. had two children together: T.H., a son, and R.R.H., a

daughter. R.R.H. was born at twenty-five weeks’ gestation and tested positive

for THC and marijuana. At the time of trial, T.H. was four years old and R.R.H.

was three years old. Until their removal, T.H. and R.R.H. always lived with J.H.

and A.S. or J.H. when he and A.S. separated.

      In June and July 2006, CPS received two reports that J.H. and A.S. were

using drugs in front of T.H. and R.R.H. and that T.H. and R.R.H. were

wandering the neighborhood unsupervised for several hours.          CPS “safety

planned” for the children to be placed with J.H.’s mother, B.H., but it

eventually discovered that the children were back in J.H.’s care sometime in

late July or early August 2006. CPS additionally learned that there had been

seven domestic violence calls at J.H.’s residence between June and August

2006.

                                        2
      The Texas Department of Family and Protective Services (“TDFPS”)

removed T.H. and R.R.H. from J.H.’s care and filed its petition for protection

of children, for conservatorship, and for termination in suit affecting the parent-

child relationship in August 2006. At the time of the removal, T.H. was naked

and “very dirty.” R.R.H. was dirty, wore a condom on her wrist as a bracelet,

and had a rash on her face.2

      CPS issued service plans to both J.H. and A.S. TDFPS’s initial plan was

to eventually return T.H. and R.R.H. to J.H., but J.H.’s July and October 2007

hair follicle tests came back positive for amphetamines and methamphetamines,

and CPS learned that J.H. had failed to complete a batterer’s intervention

program that he had been ordered to complete.

      The bench trial was on November 5, 14, and 15, 2007.               J.H. was

arrested and incarcerated sometime between November 5 and November 14,

and he was consequently absent from trial on November 14 and part of

November 15. The trial court issued a bench warrant, and J.H. returned to trial

on November 15.

      The trial court entered an order terminating J.H.’s parental rights to T.H.

and R.R.H. It found by clear and convincing evidence that J.H. had knowingly




      2
          … J.H. claimed that R.R.H. had a ponytail band on her wrist.

                                        3
placed or knowingly allowed T.H. and R.R.H. to remain in conditions or

surroundings which endangered their emotional or physical well-being and that

he engaged in conduct or knowingly placed T.H. and R.R.H. with persons who

engaged in conduct which endangered their physical or emotional well-being.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 2008). The trial

court also found by clear and convincing evidence that termination of the

parent-child relationship between J.H. and T.H. and R.R.H. was in the children’s

best interest. See id. § 161.001(2). This appeal followed.

                           III. E VIDENTIARY S UFFICIENCY

      In his first six issues, J.H. challenges the legal and factual sufficiency of

the evidence to support the trial court’s section 161.001(1) and (2) conduct

and best interest findings.

      A.     Standards of Review

      A    parent’s   rights   to   “the   companionship,   care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”         Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

                                           4
and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

State seeks not just to limit parental rights but to end them permanently—to

divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. Tex.

Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985).      We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at

20–21; In re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no

pet.).

         In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005).            Both elements must be established;

termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

         Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

                                         5
clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

between the preponderance standard of ordinary civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It 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.” Tex. Fam. Code Ann. § 101.007

(Vernon 2002).

      In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination

were proven.     In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).           We must

review all the evidence in the light most favorable to the finding and judgment.

Id. This means that we must assume that the factfinder resolved any disputed

facts in favor of its finding if a reasonable factfinder could have done so. Id.

We must also disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We must consider, however, undisputed evidence even if it is

contrary to the finding. Id. That is, we must consider evidence favorable to




                                         6
termination if a reasonable factfinder could, and disregard contrary evidence

unless a reasonable factfinder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as

they are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that the parent violated the relevant conduct provision of

section 161.001(1) and that the termination of the parent’s parental rights

would be in the best interest of the child. C.H., 89 S.W.3d at 28. 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 in the truth of its finding,

then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. If we

reverse on factual sufficiency grounds, then we must detail in our opinion why

                                        7
we have concluded that a reasonable factfinder could not have credited

disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266–67.

      B.    Sufficient Evidence—Section 161.001(1)(D) and (E) Findings

      The trial court may order termination of the parent-child relationship if it

finds by clear and convincing evidence that the parent has knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child. Tex. Fam. Code

Ann. § 161.001(1)(D). Endangerment is defined as exposing to loss or injury,

to jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth

2003, no pet.). Under subsection (D), it is necessary to examine evidence

related to the environment of the child to determine if the environment was the

source of endangerment to the child’s physical or emotional well-being. In re

D.T., 34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied). To

support a finding of endangerment, the parent’s conduct does not necessarily

have to be directed at the child, and the child is not required to suffer injury.

Boyd, 727 S.W.2d at 533.

      The trial court may order termination of the parent-child relationship if it

finds by clear and convincing evidence that the parent has engaged in conduct

or knowingly placed the child with persons who engaged in conduct that

endangers the physical or emotional well-being of the child. Tex. Fam. Code

                                        8
Ann. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether

evidence exists that the endangerment of the child’s physical or emotional well-

being was the direct result of the parent’s conduct, including acts, omissions,

and failures to act. J.T.G., 121 S.W.3d at 125. Termination under subsection

(E) must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required. Id.; D.T.,

34 S.W.3d at 634.

      The specific danger to the child’s well-being may be inferred from parental

misconduct alone, and to determine whether termination is necessary, courts

may look to parental conduct both before and after the child’s birth. Boyd, 727

S.W.2d at 533; In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001,

no pet.). A parent’s decision to engage in illegal drug use during the pendency

of a termination suit, when the parent is at risk of losing a child, supports a

finding that the parent engaged in conduct that endangered the child’s physical

or emotional well-being. In re J.A., No. 02-05-00454-CV, 2006 WL 3114434,

at *5 (Tex. App.—Fort Worth Nov. 2, 2006, no pet.) (mem. op.). As a general

rule, conduct that subjects a child to a life of uncertainty and instability also

endangers the child’s physical and emotional well-being. See In re S.D., 980

S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).




                                       9
      Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,

439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126. The

evidence demonstrates that J.H. has engaged in conduct that subjected T.H.

and R.R.H. to a life of uncertainty and instability. Specifically, the evidence

shows that J.H. used illegal drugs both before and after TDFPS removed T.H.

and R.R.H. from his care. J.H. denied having a drug problem and denied using

drugs while caring for T.H. and R.R.H., but he admitted that he had used

heroin, methamphetamines, cocaine, and marijuana in the past. J.H. admitted

using methamphetamines sixteen or seventeen months before trial, which was

before TDFPS removed the children from his care. A.S. testified that J.H. used

methamphetamines and marijuana. J.H. took a hair follicle test on July 18,

2006; July 5, 2007; and October 22, 2007. The July 2006 test was negative

for illegal substances, but the July and October 2007 tests were positive for

amphetamines and methamphetamines. J.H. also told a CASA worker that a

hair follicle test that he had performed on his own came back positive.

      A.S. resided with J.H. and the children on and off over the course of her

five year relationship with J.H.    R.R.H. was born at twenty-five weeks’

gestation and tested positive for THC and marijuana. A.S. admitted that she

has a drug problem and that her drug of choice has been marijuana.

                                      10
      J.H. admitted that domestic violence had occurred during his relationship

with A.S. A.S. testified that J.H. has punched and hit her and that she has

gone to a shelter as a result of the domestic violence. A.S. recounted that

there had been five or six instances of family violence between her and J.H.

A.S. drafted an affidavit for TDFPS in which she stated that she had “grave

concerns regarding my family” due to domestic violence and drug abuse.

Between June and August 2006, there were seven domestic violence calls at

J.H.’s residence. In June 2007, J.H. entered a plea of nolo contendere to a

charge of assault bodily injury to a family member (A.S.); the offense had

occurred in September 2006.       J.H. exhibited anger issues that concerned

others; for example, he had a number of outbursts during visits with the

children if he thought the visit was too short.

      On the first day of trial, J.H. testified that he had a warrant out for his

arrest because his probation for the September 2006 offense had been revoked.

Sometime after the first day of trial but before the second day of trial, J.H. was

arrested and scheduled to be incarcerated for fifty days. J.H.’s mother agreed

that she has bailed J.H. out of jail more than five times but less than ten times.

      J.H.’s service plan required him to maintain a stable living environment,

appropriate housing, and employment and to complete a batterer’s intervention

program, among other things. J.H. denied having more than five residences

                                       11
over the last five years, but he admitted that he had stayed in a hotel for a

“temporary transitional period.” A police officer who responded to the report

that T.H. and R.R.H. were wandering the neighborhood unsupervised described

the residence where J.H. was living as “genuinely dirty” and in disarray. There

were dishes with half-eaten food, flies around the dishes, and screwdrivers and

knives “well within the reach of the children.” At the time of the removal, T.H.

was naked and “very dirty,” and R.R.H. was dirty, wore a condom on her wrist

as a bracelet, and had a rash on her face. While J.H. testified that he has a job

waiting for him after he is released from jail, a CPS caseworker testified that

J.H. never provided her with proof of employment.             According to the

caseworker, J.H. was terminated from a batterer’s intervention class in

February 2007, but at trial he produced a certificate of completion for the class

dated October 2007, which was just before trial began in November 2007.

J.H. lied to the caseworker that he had completed the program at an earlier

time.

        Based on our review of the entire record, we conclude that a factfinder

could reasonably form a firm belief or conviction that J.H. had engaged in

conduct consistent with the trial court’s subsection 161.001(1)(D) and (E)

findings. Therefore, we hold that the evidence is legally and factually sufficient

to support the trial court’s section 161.001(1)(D) and (E) findings. See Tex.

                                       12
Fam. Code Ann. § 161.001(1)(D), (E). We overrule J.H.’s first, second, third,

and fourth issues.

      C.    Sufficient Evidence—Best Interest Finding

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(Vernon 2002). There is also a strong presumption that keeping a child with

a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). Nonexclusive factors that the trier of fact in a termination case may use

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 individuals seeking custody;

      (5)   the programs available to assist these individuals to
            promote the best interest of the child;

      (6)   the plans for the child by these individuals 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

                                        13
      (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; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, 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. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

      Here, J.H. testified that he has been the primary parent caring for T.H.

and R.R.H. since they were born; that he has always provided the children with

food, clothing, and housing; and that he has been continually employed since

T.H. was born. He testified that his visits with T.H. and R.R.H. when they

were in CPS’s custody went “wonderful,” and a CASA worker who observed

J.H. interact with the children opined that the children “obviously love [J.H.].”

When J.H. was working, the children stayed at a day care that J.H. claimed

was “written up in a magazine as being one of the top 10 in the U.S.” J.H.

testified that he would check the children into a pre-kindergarten program if

they were returned to him after the trial. In addition to the services that J.H.

completed pursuant to his service plan, he testified that he has been attending

                                        14
a “self-based recovery” program at a church that is geared towards substance

abuse treatment.

      J.H.’s mother testified that J.H. is a loving, caring father that puts T.H.

and R.R.H. first. She affirmed that she would be willing to take care of the

children on a temporary, but not permanent, basis and to help J.H. any way she

could. She did not think that J.H.’s parental rights should be terminated.

      T.H. and R.R.H.’s caseworker, however, testified that TDFPS’s unrelated

adoption permanency plan for the children is in their best interest.         She

expressed concerns about returning the children to J.H. because of the

circumstances relating to his substance abuse, domestic violence, anger

management, employment, transportation, and living arrangements.             She

opined that J.H. did not have the parenting ability to raise T.H. and R.R.H. and

that he could not provide a safe and healthy environment for them.           The

caseworker agreed that granting the petition to terminate J.H.’s parent-child

relationship with the children would ensure permanency for the children in a

structured, safe environment.

      The CASA worker testified that T.H. and R.R.H. had a lot of anger issues

and were not used to “structure” after removal but that they were doing

“wonderful” now. She testified that the children were participating in play

therapy because of their anger issues, and she expressed concern about J.H.’s

                                      15
drug abuse, his refusal to acknowledge the drug abuse, and his own anger

issues. The children no longer need to take the medications they had previously

been taking.3

      Considering the entire record, including evidence of J.H.’s continued

substance abuse and failure to supervise the children, the factors including the

emotional and physical needs of the child now and in the future, the emotional

and physical danger to the child now and in the future, the parental abilities of

the individuals seeking custody, and the acts or omissions of the parent which

may indicate that the existing parent-child relationship is not a proper one weigh

in favor of termination. See Holly, 544 S.W.2d at 371–72. Thus, based on our

review of the entire record, we conclude that a factfinder could reasonably form

a firm belief or conviction that termination of J.H.’s parental rights to T.H. and

R.R.H. is in T.H.’s and R.R.H.’s best interest. We hold that the evidence is

legally and factually sufficient to support the trial court’s section 161.001(2)

best interest finding. See Tex. Fam. Code Ann. § 161.001(2). Accordingly,

we overrule J.H.’s fifth and sixth issues.




      3
        … T.H. had been taking lithium, Zyprexa, Clonidine, and another mood
stabilizer. R.R.H. was on Clonidine.

                                       16
               IV. T RIAL A BSENCE AND M OTION FOR C ONTINUANCE

      In his seventh, eighth, and ninth issues, J.H. complains that the trial court

abused its discretion by denying his motion for continuance and by proceeding

with the trial in his absence, that the continuation of the trial in his absence

infringed upon his constitutional rights, and that the trial court abused its

discretion by summarily denying his counsel’s request to continue the trial

without considering any of the relevant factors used to determine whether an

inmate should personally attend court proceedings.

      A.    Constitutional Arguments Not Preserved

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). If a party fails to do this, error is not preserved, and the complaint

is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

The objecting party must get a ruling from the trial court. Tex. R. App. P. 33.1.

This ruling can be either express or implied. Frazier v. Yu, 987 S.W.2d 607,

610 (Tex. App.—Fort Worth 1999, pet. denied).

      When there are multiple defendants, as in this case, each defendant

generally must lodge his own objections in order to preserve error. Bohls v.

                                       17
Oaks, 75 S.W.3d 473, 477 (Tex. App.—San Antonio 2002, pet. denied);

Howard v. Philips, 728 S.W.2d 448, 451 (Tex. App.—Fort Worth 1987, no

writ) (“It has been held that in trials where multiple defendants participate, ‘a

party must make his own objection to the evidence, or an exception to the

ruling of the court regarding the objection, if he wishes to preserve any error for

appeal.’”).

      The first day of trial was November 5, 2007. J.H. was the only witness

to testify. The trial court recessed the trial at five o’clock, but J.H.’s testimony

had not yet concluded. The trial resumed on November 14, 2007. J.H.’s

attorney immediately advised the trial court that J.H. had been arrested in

DeSoto, that he was in jail, and that he was supposed to be transferred to

Dallas and then to Tarrant County.       Considering the lack of notice, J.H.’s

counsel indicated that he could not get a bench warrant, and he moved for a

continuance. The trial court recommended that TDFPS call another witness and

that J.H.’s testimony be concluded at another time. J.H.’s counsel did not

assert any objection to the continuation of the trial on constitutional grounds.

      The trial continued in J.H.’s absence. After one witness testified and in

the middle of the cross-examination of the second witness, A.S.’s counsel

stated that he “would like to join [J.H.’s counsel’s] motion for continuance” and




                                        18
that “[w]e believe that [J.H.] has a constitutional right to be here.” The trial

proceeded and eventually concluded for the day.

      The trial resumed for a third day on November 15, 2007. The record

does not demonstrate that J.H. was present in the courtroom. J.H.’s counsel

did not move for a continuance or assert any objection to J.H.’s absence on

constitutional grounds at this time.     Approximately one hour and forty-five

minutes later, however, J.H.’s counsel re-urged his objection to the trial

proceeding in his client’s absence. But the trial proceeded, and the trial court

stated, “I bench warranted him yesterday, and I don’t know why he’s not here.

The Court has taken great lengths to get him here. I understand he’ll be here

shortly.” The record shows that J.H. arrived in the courtroom at some point

during the testimony of the fourth witness to testify that day.

      The record does not demonstrate that J.H. lodged his own objection

based on constitutional grounds challenging the trial court’s decision to proceed

with the trial. Although A.S.’s counsel stated that “we” believe J.H. has a

constitutional right to be at trial, A.S.’s counsel did not represent J.H. at trial,

nor did J.H.’s counsel join in A.S.’s objection. Morever, even assuming that

J.H. had joined in A.S.’s objection, A.S.’s counsel did not assert the objection

until some point during the cross-examination of the second witness to testify

on November 14, 2007. The objection was therefore untimely. Consequently,

                                        19
J.S. failed to preserve for appellate review his arguments that the continuation

of the trial in his absence infringed upon his constitutional rights and that the

trial court abused its discretion by denying his counsel’s request to continue the

trial without considering any of the relevant factors used in determining

whether an inmate should personally attend court proceedings. See Tex. R.

App. P. 33.1(a); Bohls, 75 S.W.3d at 477; Howard, 728 S.W.2d at 451. We

overrule J.H.’s eighth and ninth issues.

      B.    Motion for Continuance

      Whether the trial court grants or denies a motion for continuance is within

its sound discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d

789, 800 (Tex. 2002).      A trial court abuses its discretion if it acts in an

arbitrary or unreasonable manner, without reference to guiding rules and

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985).    A motion for continuance shall not be granted except for

sufficient cause supported by an affidavit, consent of the parties, or by

operation of law. See Tex. R. Civ. P. 251. If a motion for continuance is not

made in writing and verified, it will be presumed that the trial court did not

abuse its discretion by denying the motion. In re E.L.T., 93 S.W.3d 372, 375

(Tex. App.—Houston [14th Dist.] 2002, no pet.).




                                       20
      Here, J.H. orally moved for a continuance on November 14, 2007, and

orally re-urged his motion for continuance the following day. The record does

not contain a written motion for continuance or an affidavit. The record also

does not reflect that the parties consented to a continuance, nor does J.H.

argue that a continuance should have been granted by operation of law.

Because J.H. did not comply with rule 251, the trial court did not abuse its

discretion by denying his oral motion for continuance. See id.; In re T.D.N., No.

14-07-00387-CV, 2008 WL 2574055, at *1 (Tex. App.—Houston [14th Dist.]

June 26, 2008, no pet.) (mem. op.) (holding that trial court did not abuse its

discretion by denying oral motion for continuance because appellant did not

comply with rule of civil procedure 251).     Accordingly, we overrule J.H.’s

seventh issue.

                  V. S ECTION 263.405(b) AND (i) C HALLENGES

      In his tenth and eleventh issues, J.H. argues that family code sections

263.405(b) and (i) are unconstitutional because they violate his right to due

process and equal protection under the United States and Texas constitutions.

Because J.H. filed a timely statement of points listing the issues raised on

appeal, we need not consider this issue. See In re O.L.A., No. 02-06-00321-




                                       21
CV, 2008 WL 706335, at *8 (Tex. App.—Fort Worth Mar. 13, 2008, no pet.)

(mem. op.).4 We overrule J.H.’s tenth and eleventh issues.

                                VI. C ONCLUSION

      Having overruled all of J.H.’s eleven issues, we affirm the trial court’s

order terminating his parental rights to T.H. and R.R.H.




                                           DIXON W. HOLMAN
                                           JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DELIVERED: November 6, 2008




      4
        … We have already ruled that family code section 263.405(i) is void as
a violation of the separation of powers provision of the Texas constitution. See
In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort Worth 2008, pet denied).

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