                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-145-CV


IN THE INTEREST OF T.M., D.M., JR.,
C.M. A/K/A S.M., AND D.M., CHILDREN

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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant D.M. (Father) appeals the trial court’s order that terminated his

parental rights to four of his children.2 In seven points, he argues that the

evidence is legally and factually insufficient to support any statutory basis for

terminating his rights and that the trial court abused its discretion by denying

his motion for continuance. We affirm.



      1
          … See Tex. R. App. P. 47.4.
      2
       … To protect the privacy of the parties involved in this appeal, we
identify them by initials only. See Tex. R. App. P. 9.8(b); Tex. Fam. Code Ann.
§ 109.002(d) (Vernon 2008).
                                 Background Facts

      Father and T.M. (Mother) are the parents of the children who are subject

to this suit—T.M., D.M., Jr., C.M. a/k/a/ S.M., and D.M. 3 Father moved to

Pennsylvania in May 2007, and in August 2007, he and Mother left the children

with Mother’s cousin (Cousin) in Texas. Father said that he was moving to

Pennsylvania just for the summer to sell newspapers and that he would come

back to Texas “before school started.” He occasionally called the children, but

he never visited them. He sent the children money “a couple of times.”

      In December 2007, because Cousin could not adequately meet the

children’s needs, they went to stay with Father’s mother (Grandmother).

Grandmother began to have financial and marital problems, and in June 2008,

she brought the children to the Department of Family and Protective Services

(the Department) because she believed that she could not care for them any

longer.

      After Grandmother gave the children to the Department, it filed its original

petition; at that time, the children’s ages ranged from three to eight. In the

original petition and in an amended petition, the Department alleged that it had

made reasonable efforts to reunify the children with Father and that Father had




      3
          … Father has another child who is not involved in this appeal.

                                         2
constructively abandoned the children. Thus, the Department asked the trial

court to terminate Father’s rights if reunification could not be achieved. An

affidavit attached to the Department’s original petition detailed Father’s failure

to return from Pennsylvania despite his representations that he would do so and

his failure to leave proper medical documents about the children. The trial court

entered an order naming the Department as the children’s temporary sole

managing conservator.

      In July 2008, the Department filed its initial service plans (including a

separate plan for each of the children and a comprehensive “Family Service

Plan”). The service plans explained that the Department’s goal remained to be

reunification but that the children had basic needs including food, shelter,

supervision, routine medical care, and a safe home environment. The initial and

subsequent service plans asked Father to, among other tasks, demonstrate

responsibility in parenting, visit the children as much as possible, complete a

psychological evaluation, and participate in drug assessments, random drug

tests, and parenting classes.4




      4
      … The record indicates that Mother has abused drugs, but it does not
show Father’s drug history.      The Department identified a location in
Pennsylvania that could provide parenting classes.

                                        3
      The Department scheduled a family group conference for July 31, 2008,

and it told Father that it would pay for his bus ticket to Texas to attend the

conference and visit the children.       However, Father did not attend the

conference; instead, he participated in the conference by telephone. During the

conference call, Father expressed anger toward the Department and his family,

and he was “vulgar, very confrontational, [and] not cooperative at all. [The

conference facilitator] had to actually take him off of speakerphone a couple of

times.”

      In November 2008, the Department opined that Father had “essentially

abandoned” his children by moving to Pennsylvania and by failing to move back

to Texas or visit his children despite the Department’s requests that he do so.

A progress report filed by the Department indicated that in November 2008, the

children had minimal phone contact with Father but that his phone number was

frequently disconnected and that he did not maintain contact with the

Department. By that time, the children had expressed that they did not wish

to leave their foster home.

      In January 2009, after the trial court granted Father’s and Mother’s

motions for continuance of the termination trial, the trial court entered an order

that required Father to complete several tasks by specified dates (such as

taking drug tests and participating in parenting classes) and that designated

                                        4
April 27 as the new trial date.           The Department’s goal changed from

reunification with Father and Mother to permanently placing the children with

another family through adoption.

      Father never completed        any    of   the   services   requested   by   the

Department.5 Despite the Department’s telling him that he needed to see his

children and Father’s multiple statements in 2008 and 2009 to the Department

and to the children that he was going to move back to Texas, Father never saw

the children after moving to Pennsylvania in 2007.6 Meanwhile, the children

lived with a loving foster mother—who planned to adopt them—in a home with

a safe and stable environment.

      In April 2009, the trial court entered an order that terminated the parents’

rights to the children on multiple grounds, including constructive abandonment.7

Father filed his notice of this appeal.




      5
      … Father took a pyschological evaluation but did not sign a release to
allow the Department to view the results of the evaluation despite the
Department’s several requests that he do so.
      6
      … The Department’s caseworker testified that Father “emotionally
manipulated” the children by falsely telling them that he would come home for
Christmas and that he would send them Christmas and birthday presents.
      7
       … The termination of Mother’s parental rights is not at issue in this
appeal.

                                          5
                              Evidentiary Sufficiency

      In his first six points, Father contends that the evidence is insufficient to

support a statutory basis for terminating his rights to the children. Specifically,

in his third and fourth points, he asserts that the evidence is legally and

factually insufficient to show that he constructively abandoned the children

under section 161.001(1)(N) of the family code. See Tex. Fam. Code Ann.

§ 161.001(1)(N) (Vernon Supp. 2009).

Standard of review and applicable law

      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

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 erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except for the

                                          6
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008);

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 M.C.T., 250

S.W.3d 161, 167 (Tex. App.—Fort Worth 2008, 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. 8 Tex. Fam. Code Ann. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Termination decisions must be supported by

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

Evidence is clear and convincing if it “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.” Id. § 101.007 (Vernon 2008).

      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



      8
       … Father does not argue that termination of his rights was not in the
children’s best interests.

                                        7
review all the evidence in the light most favorable to the finding and judgment.

Id.   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 Father violated section 161.001(1)(N). See C.H., 89

S.W.3d at 25, 28–29.

         A trial court may terminate a parent’s rights to a child on the ground of

constructive abandonment if it finds by clear and convincing evidence that

(1) the child has been in the permanent or temporary managing conservatorship

of the State or an authorized agency for not less than six months, (2) the State

or the authorized agency has made reasonable efforts to return the child to the

parent, (3) the parent has not regularly visited or maintained significant contact

with the child, and (4) the parent has demonstrated an inability to provide the

child with a safe environment. See Tex. Fam. Code Ann. § 161.001(1)(N); In

re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.) (op.

on reh’g); In re J.J.O., 131 S.W.3d 618, 628 (Tex. App.—Fort Worth 2004,

no pet.); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no

pet.).




                                         8
Analysis

      Father asserts that the evidence is insufficient to prove that he did not

maintain significant contact with the children or that he demonstrated an

inability to provide them with a safe environment. He does not dispute that the

Department had conservatorship of the children for at least six months or that

the Department made reasonable efforts to return the children to him.

      The evidence conclusively establishes that Father did not see the children

for almost two years preceding the trial. Although Father asserts that face to

face visits were “impracticable” and the evidence establishes that Father talked

to the children some on the telephone, 9 the evidence also shows that the

frequency of his communication with them was sporadic and that the quality

of his communication with them was anything but significant; it was misleading

and counterproductive. See J.J.O., 131 S.W.3d at 628–29 (analyzing both the

quantity and quality of a mother’s visits in a constructive abandonment

analysis).

      For instance, in the winter of 2007 and spring of 2008, Father did not

communicate with the children in any way. In the latter part of 2008 and in the




      9
      … Father has not cited any cases in which a court held that a parent who
had the ability to visit a child but did not make any visits nonetheless
maintained significant contact with the child.

                                       9
early part of 2009, he called the children periodically, 10 but according to a

report by Court Appointed Special Advocates (CASA), the children “spoke of

the calls in a blasé tone and seemed to shrug them off.”

      During the phone calls, Father promised the children that he would visit

them and that he would move back to Texas.          Father last spoke with the

children on February 16, 2009, more than two months before the termination

trial. The children’s behavior at school improved after Father’s last phone call.

      Father relies on In re K.W. to propose that regular contact between a

parent and a Department caseworker negates a claim of constructive

abandonment.     138 S.W.3d 420, 432 (Tex. App.—Fort Worth 2004, pet.

denied).   But our opinion in K.W. does not contain any statement directly

adopting that holding. See id. Also, in K.W., we were reviewing termination

of the parental rights of a father who had been incarcerated for the entire time

that the termination suit was pending and whose contact options with his child

were therefore necessarily limited. See id. at 423. Here, there is no evidence

that Father’s opportunities to visit the children were similarly limited; instead,




      10
        … Father called the children twenty to twenty-five times during the
course of the Department’s case, which lasted for more than ten months. The
children’s attorney ad litem told the trial court that Father’s calls and false
promises to the children made them “cry week after week after week.”

                                       10
the evidence indicated that Father rejected a trip to Texas to visit the children

at the Department’s expense.

      We conclude that a factfinder could reasonably form a firm belief or

conviction that Father did not maintain significant contact with the children, and

we therefore hold that the evidence detailed above is legally and factually

sufficient in that regard. See Tex. Fam. Code Ann. § 161.001(1)(N)(ii); J.P.B.,

180 S.W.3d at 573; C.H., 89 S.W.3d at 25, 28–29; M.R.J.M., 280 S.W.3d

at 505–06 (holding that there was no significant contact with a child although

the parent visited and wrote letters to the child); J.J.O., 131 S.W.3d at

628–29 (holding that the evidence was legally and factually sufficient to show

that the mother did not maintain significant contact although she visited her

child twelve times during a nine-month service plan); In re H.R., 87 S.W.3d

691, 699 (Tex. App.—San Antonio 2002, no pet.) (holding that the evidence

was legally sufficient on constructive abandonment although the mother

intermittently visited her child).

      Next, Father contends that the evidence is legally and factually

insufficient to show that he demonstrated an inability to provide the children

with a safe environment. He argues, “There is no evidence concerning [his]

present residence. Further, the children resided with Appellant in the past, and




                                       11
there is no indication that Appellant failed to provide a safe environment during

those periods.”

      However, the record does not contain any indication that Father wanted

the children to live with him in Pennsylvania; instead, Father’s acts show the

opposite. The Department tried to complete a home study to see if the children

could live with Father in Pennsylvania, but Father never returned numerous

phone calls or a letter related to the study. Father’s acts also show that he did

not have any legitimate plan to live with the children elsewhere; he lied on

several occasions about moving back to Texas.

      Father failed to complete any parts of the service plans despite being

ordered to do so by the trial court and being advised orally and in writing that

completion of the plans was important to help address the circumstances that

led to the Department having custody of the children and to show the

Department that he could care for the children. The record does not contain

evidence of any attempt by Father to find a place for the children to live or

someone to provide for their needs after Grandmother took them to the

Department in June 2008. The record also does not show that Father gave the

children’s foster mother money to assist her in caring for the children or

otherwise supported the children in any way from Grandmother’s delivery of the

children to the Department until the trial in April 2009.

                                       12
      Thus, the evidence establishes Father’s inability to provide the children

with any environment (in Pennsylvania or in Texas) much less a safe

environment, and the evidence is therefore legally and factually sufficient as to

the “safe environment” element of constructive abandonment. See Tex. Fam.

Code Ann. § 161.001(1)(N)(iii); M.C. v. Tex. Dep’t of Family and Protective

Servs., No. 08-08-00053-CV, 2009 WL 3450987, at *3 (Tex. App.—El Paso

Oct. 28, 2009, pet. denied) (holding that evidence was sufficient to show that

a mother could not provide a child with a safe environment when the mother,

among other things, did not provide for the child’s necessities and had no

permanent housing in which the child could reside with her).

      Because we hold that the evidence is legally and factually sufficient to

support the constructive abandonment ground for terminating Father’s rights,

we overrule Father’s third and fourth points. We will not address Father’s first,

second, fifth, and sixth points, which relate to the sufficiency of the evidence

to support alternative statutory grounds for termination. See Tex. R. App. P.

47.1; In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no

pet.) (explaining that along with a best interest finding, a finding of only one

ground alleged under section 161.001(1) is sufficient to support a judgment of

termination); In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003,

pet. denied) (explaining that “to be successful on appeal, the appellant must

                                       13
establish that the . . . findings on all of the [Department’s] pleaded grounds are

unsupported by the evidence”).

                  Denial of Father’s Motion for Continuance

      In his seventh point, Father argues that the trial court erred by denying

the motion for continuance that he filed on the day of trial. Father’s motion

asserted that he believed that trial had been reset for April 30 because he

received notice of a permanency hearing set for that day. The trial court denied

Father’s motion, and the parties presented their cases without Father’s or

Mother’s attendance at trial.

      We review a trial court’s ruling on a motion for continuance for an abuse

of discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,

800 (Tex. 2002); In re Z.C., 280 S.W.3d 470, 478 (Tex. App.—Fort Worth

2009, pet. denied). We do not substitute our judgment for that of the trial

court. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig.

proceeding). Instead, we must determine whether the trial court’s action was

so arbitrary and unreasonable as to amount to a clear and prejudicial error of

law. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).

The test is whether the trial court acted without reference to guiding rules or

principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).




                                       14
      The absence of a party to a proceeding is not an adequate ground for a

continuance unless the party shows that it had a reasonable excuse for not

being present and that its absence resulted in prejudice. Erback v. Donald, 170

S.W.2d 289, 291–92 (Tex. Civ. App.— Fort W orth 1943, writ ref’d w.o.m.);

see Tex. R. App. P. 44.1(a); Commercial Standard Ins. Co. v. Merit Clothing

Co., 377 S.W.2d 179, 181 (Tex. 1964) (holding that the trial court did not

abuse its discretion by overruling a motion for continuance because, in part, the

record did not reflect any harm); Ngo v. Ngo, 133 S.W.3d 688, 693 (Tex.

App.—Corpus Christi 2003, no pet.); Richards v. Schion, 969 S.W.2d 131, 132

(Tex. App.—Houston [1st Dist.] 1998, no pet.). When the movant seeks a

continuance because of an absent witness, it must show the materiality of the

absent witness’s testimony.     Tex. R. Civ. P. 252; Fountain v. Knebel, 45

S.W.3d 736, 739 (Tex. App.—Dallas 2001, no pet.); Humphrey v. Ahlschlager,

778 S.W.2d 480, 483 (Tex. App.—Dallas 1989, no writ).

      The entirety of Father’s motion for continuance at trial and the majority

of Father’s argument in his brief on his seventh point concerns the reason why

he was absent from trial.    But under the authority cited above, even if his

absence was reasonable, he must show prejudice, and his brief only concisely

concludes, “[Father] could not assist his attorney in questioning [the

Department’s] witnesses, and [Father] could not provide his own testimony.”

                                       15
Father did not show by affidavit (or otherwise) at trial and has not shown on

appeal that he would have testified to facts that are contrary to or that are

mitigating from the testimony offered by the Department’s sole witness. He

also has not explained how, beyond offering his own testimony, his presence

at trial would have potentially changed the trial court’s termination decision.

Thus, under the standards described above, because Father has not

demonstrated that his absence and the denial of his continuance motion

resulted in prejudice, we overrule his seventh point.

                                 Conclusion

      Having overruled all of Father’s dispositive points, we affirm the trial

court’s judgment.




                                           TERRIE LIVINGSTON
                                           JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DELIVERED: December 31, 2009




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