Opinion filed March 14, 2013




                                              In The


         Eleventh Court of Appeals
                                          __________

                                     No. 11-12-00257-CV
                                         __________

                       IN THE INTEREST OF F.E.M., A CHILD


                           On Appeal from the County Court at Law

                                       Nolan County, Texas

                                 Trial Court Cause No. CC-6415


                             M E M O RAN D U M O PI N I O N
       This is an appeal from an order terminating the parental rights of F.E.M.’s mother and
father. Both parents filed a notice of appeal. We affirm.
                                               Issues
       F.E.M.’s father presents eight issues for review, and F.E.M.’s mother presents six. In his
first four issues, the father challenges the legal and factual sufficiency of the evidence to support
the termination of his rights and the appointment of the Department of Family and Protective
Services as the managing conservator. In his fifth issue, the father contends that the trial court
abused its discretion in denying his pretrial motion for continuance. In his sixth issue, the father
contends that he did not receive notice of the trial court’s final hearing. In his seventh issue, the
father asserts that the trial court was without jurisdiction at the final hearing because the
dismissal date had expired. The father argues in his final issue that he received ineffective
assistance of counsel. The mother argues in her first issue that the trial court erred in failing to
dismiss after it failed to set a dismissal date. In her second issue, the mother contends that the
trial court abused its discretion in failing to grant her motion for continuance. In her third,
fourth, and fifth issues, the mother challenges the legal and factual sufficiency of the evidence
supporting the termination of her parental rights. In her final issue, the mother complains that
she received ineffective assistance of counsel.
                                   Legal and Factual Sufficiency
       The termination of parental rights must be supported by clear and convincing evidence.
TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). To determine if the evidence is legally
sufficient in a parental termination case, we review all of the evidence in the light most favorable
to the finding and determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine
if the evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or conviction
about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002). To terminate parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(1)(A)–(T) and that termination is
in the best interest of the child. Section 161.001.
       A. Acts of F.E.M.’s Father
       In this case, the trial court found that the father had committed two of the acts listed in
Section 161.001(1): constructive abandonment pursuant to Section 161.001(1)(N) and failing to
comply with the necessary provision of a court order pursuant to Section 161.001(1)(O).
Specifically, the trial court determined that the father had constructively abandoned F.E.M.
because F.E.M. had 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 (1) the Department or authorized agency had made reasonable efforts to return
F.E.M. to the father, (2) the father had not regularly visited or maintained significant contact with
F.E.M., and (3) the father had demonstrated an inability to provide F.E.M. with a safe
environment. See id. § 161.001(1)(N). The trial court also determined that the father had failed
to comply with the provisions of a court order that specifically established the actions necessary
for the father to obtain the return of F.E.M., who had been in the managing conservatorship of

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the Department for not less than nine months as a result of the child’s removal from the parent
for abuse or neglect. See id. § 161.001(1)(O). The trial court found that termination of the
father’s rights was in the best interest F.E.M. See id. § 161.001(2). The father challenges these
findings as well as the trial court appointment of the Department as F.E.M.’s managing
conservator.
       In his first issue, the father challenges the sufficiency of the evidence regarding the trial
court’s finding of constructive abandonment.           To support termination for constructive
abandonment under Section 161.001(1)(N), it must be shown that the Department or an
authorized agency had been the managing conservator of the child for not less than six months,
that the Department or authorized agency had made reasonable efforts to return the child, that the
parent had not regularly visited or maintained significant contact with the child, and that the
parent had demonstrated an inability to provide the child with a safe environment. The father
specifically challenges each of the elements under this subsection.
       F.E.M. was born in July 2011. She had been under the managing conservatorship of the
Department since July 22, 2011. F.E.M. was initially placed in a foster home when she left the
hospital, but was returned to both parents (who resided together) for a monitored return on
August 9, 2011. During the monitored return, F.E.M. remained in the temporary managing
conservatorship of the Department. F.E.M. was removed from the monitored return and placed
in foster care on January 25, 2012, after the mother tested positive for cocaine. The final hearing
in this case commenced on July 17, 2012. The father visited F.E.M. only five times out of the
twenty-two to twenty-four times that were available to him for visitation. All five of these visits
were made with the mother; the father made no visits on his own initiative. Thus, the father
failed to regularly visit or maintain significant contact with F.E.M. while she was in the
Department’s care. Evidence was introduced indicating that the Department made reasonable
efforts to work with the father, including a monitored return. The father, however, failed to keep
the Department apprised of his whereabouts after the monitored return and had no contact with
his caseworker after December 2011. There was also evidence that the father demonstrated an
inability to provide F.E.M. with a safe environment.
       The trial court’s finding under Section 161.001(1)(N) as to the father is supported by the
record. The father’s first issue is overruled. Because a finding that a parent committed one of
the acts listed in Section 161.001(1)(A)–(T) is all that is required under that statute, we need not

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address the father’s second issue regarding the sufficiency of the evidence to support the trial
court’s finding under Section 161.001(1)(O). See TEX. R. APP. P. 47.1.
        B. Acts of F.E.M.’s Mother
        The trial court found that termination of the mother’s parental rights would be in the best
interest of F.E.M. and that the mother had committed two of the acts listed in Section 161.001(1):
knowingly placing or allowing the child to remain in conditions or surroundings that endanger
the physical or emotional well-being of the child as set out in Section 161.001(1)(D) and failing
to comply with the necessary provisions of a court order pursuant to Section 161.001(1)(O).
Because we hold that the evidence is sufficient to support the trial court’s finding under Section
161.001(1)(O), we do not address the mother’s third issue relating to Section 161.001(1)(D). Id.
        In her fourth issue, the mother challenges the legal and factual sufficiency of the evidence
in support of the finding that she failed to comply with the provisions of a court order
establishing the actions necessary for her to obtain the return of F.E.M.              See Section
161.001(1)(O). Section 161.001(1)(O) provides that a court may terminate the parent-child
relationship if the parent:
                [F]ailed 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.
The Department’s caseworker, Don Meador, testified extensively about the mother’s failure to
comply with her family service plan, and the mother does not assert in this issue that she did
comply with the court-ordered provisions. Instead, she specifically asserts that the evidence is
insufficient to show that F.E.M. had been removed as a result of “abuse or neglect.”
        The record shows that F.E.M. was originally removed based upon positive drug tests
performed on the mother and F.E.M. shortly after F.E.M. was born. F.E.M. was removed from
the monitored return after the mother tested positive for cocaine. Additionally, at the time of
removal from the monitored return, F.E.M. required medical attention, which the parents had not
sought. The evidence is sufficient to show that F.E.M. had been removed from the mother due to
abuse or neglect. The mother’s fourth issue is overruled.




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       C. Best Interest of F.E.M.
       In the father’s third issue and the mother’s fifth issue, they argue that the evidence is
legally and factually insufficient to support the trial court’s finding that termination of their
parental rights is in F.E.M.’s best interest. With respect to the best interest of a child, no unique
set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010,
pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not limited to,
(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 that 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. Id. Additionally, evidence
that proves one or more statutory grounds for termination may also constitute evidence
illustrating that termination is in the child’s best interest. C.J.O., 325 S.W.3d at 266.
       Meador gave extensive testimony at trial that supports the trial court’s best interest
finding. The Department originally became involved with F.E.M. at the hospital shortly after her
birth, when both she and the mother tested positive for marihuana and the mother also tested
positive for benzodiazepine. The mother admitted that she smoked marihuana and took some
sort of “pill” knowing that she was pregnant. Meador testified that the parents’ house was not a
safe place for F.E.M. based upon the domestic violence that occurred in the house and upon the
alcohol and drug use. The parents had a history of family violence, and the father had a criminal
history that included a conviction for aggravated assault with a deadly weapon for stabbing
someone with a knife. According to the mother, the father had physically assaulted her multiple
times. On December 19, during the monitored return, the mother and F.E.M. went to a battered
women’s shelter because the father assaulted, or “beat,” the mother. The mother, however, was
asked to leave the shelter because she broke curfew; she returned to live with the father. F.E.M.
was removed from the monitored return when the mother tested positive for cocaine.
Additionally, when F.E.M. was removed from the monitored return, she required medical
attention that the parents had not sought. She had a yeast infection, a diaper rash that required

                                                  5
antibiotics, and a condition known as wryneck that caused her neck to be bent so that her ear was
basically on her shoulder.
       Neither parent completed the family service plan. Both parents failed to attend the
required family and individual counseling, quitting “early on.” The father failed to take an anger
management class and continued to have issues with drinking alcoholic beverages, including an
arrest for public intoxication. The mother failed to participate in individual therapy, failed to
continue random drug monitoring, refused drug tests, and tested positive for cocaine during the
pendency of this case. The parents failed to attend AA/NA as required and also failed to
maintain stable employment. During the monitored return with her parents, F.E.M. resided in
four different locations.
       At the time of trial, the mother was forty-one years old and had ten children, none of
whom lived with her. Three of the mother’s children were older; five were in the custody of
Oklahoma CPS; and two children, including F.E.M., were under the Department’s care. The
father, who was twenty-four years old at the time of trial, had no children other than F.E.M. The
father failed to maintain significant contact with F.E.M., and the mother had not visited F.E.M. in
over a month at the time of trial. Sometimes the mother arrived late or left early. According to
Meador, the mother’s visits with F.E.M. were not always appropriate. When F.E.M. cried, the
mother had difficulty consoling her and passed her off to the supervisor of the visit for help.
       Meador testified that the Department’s goal for F.E.M. was adoption, that F.E.M. was
very adoptable, and that her current foster parents wanted to adopt her. Meador was also of the
opinion that termination of both parents’ rights would be in F.E.M.’s best interest. Meador
testified that F.E.M. is an adorable little girl with a wonderful smile. At the time of trial, F.E.M.
was not quite walking yet; was babbling but not talking; and was very happy in her current foster
placement, where she had been for two and one-half months.
       Based on the evidence presented at trial, the trial court could reasonably have formed a
firm belief or conviction that termination of both the father’s and the mother’s parental rights
would be in the best interest of F.E.M. We cannot hold that the findings as to best interest are not
supported by clear and convincing evidence.           The evidence is both legally and factually
sufficient to support the findings that termination of the father’s and the mother’s parental rights
is in the best interest of F.E.M. The father’s third issue and the mother’s fifth issue are overruled.



                                                  6
       D. Appointment of Managing Conservator
       In his fourth issue, the father argues that the evidence is legally and factually insufficient
to establish that the Department should remain F.E.M.’s permanent managing conservator. We
disagree. The findings necessary to appoint a nonparent as sole managing conservator need only
be established by a preponderance of the evidence. Lewelling v. Lewelling, 796 S.W.2d 164, 167
(Tex. 1990). Consequently, we review a trial court’s conservatorship decision under a less
stringent standard of review than the standard for termination. In re J.A.J., 243 S.W.3d 611, 616
(Tex. 2007). A conservatorship determination is subject to review for an abuse of discretion and
may be reversed only if that determination was arbitrary and unreasonable. Id. The record
shows that the Department’s goal for F.E.M. was adoption, that her current foster parents wanted
to adopt her, that she was very happy and was thriving in their care, and that neither the mother
nor the father had offered any suitable alternatives for placement. The father’s fourth issue is
overruled.
                                     Motion for Continuance
       In the father’s fifth issue and in the mother’s second issue, the parents contend that the
trial court abused its discretion in failing to grant a pretrial continuance so that they could be
present for the final hearing. We disagree.
       On July 16, 2012, which was the date that trial was supposed to commence, the parents’
attorneys were present, but neither parent appeared for trial. The father’s attorney requested a
continuance to locate the father because, although he had diligently attempted to contact the
father, he had been unsuccessful in doing so at any known address or phone number. Counsel
sent the notice to the father’s father, who said he would make sure that the father got the notice.
Likewise, the mother’s attorney filed a motion for continuance, stating that he had received a text
from the mother stating that she was out of town and was unable to be present for court as she
did not have funds available for the trip. The mother had informed counsel that she was in a
small town outside of San Antonio. The only way counsel was able to communicate with the
mother was via text message. The trial court instructed the mother’s counsel and Meador to
contact the mother and find out if she needed financial assistance in coming to trial. The trial
court granted a one-day continuance and offered to make funds immediately available for a bus
ticket for the mother. The Department also offered to provide transportation, even if “somebody
[had] to drive and pick her up.”

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          The next day on July 17, neither parent appeared for trial.                                The father’s attorney
announced not ready. The mother’s attorney filed a verified motion for continuance stating that
a continuance was necessary to secure the attendance of the mother, who was a material witness,
and that due diligence had been exercised. The record shows that the Department’s caseworker
and the mother’s attorney had notified the mother by text message on July 16 that funds were
available to pay for her trip. However, the mother did not respond to those text messages. The
trial court denied the motion for continuance.
          The trial court did not abuse its discretion in refusing to grant another continuance. The
father did not file a written, verified motion for continuance and did not show sufficient cause
supported by an affidavit as required by TEX. R. CIV. P. 251. The mother’s written, verified
motion was not supported by an affidavit as required by TEX. R. CIV. P. 251 and 252. Because
the parents failed to comply with Rule 251 and Rule 252, we presume that the trial court did not
abuse its discretion in denying their motions. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.
1986). Additionally, the mere absence of a party does not entitle him to a continuance; the party
must show a reasonable excuse for his absence. Ngo v. Ngo, 133 S.W.3d 688, 693 (Tex. App.—
Corpus Christi 2003, no pet.); Vickery v. Vickery, No. 01-94-01004-CV, 1997 WL 751995, at *20
(Tex. App.—Houston [1st Dist.] Dec. 4, 1997, pet. denied) (not designated for publication).
Neither parent provided a reasonable excuse in this case; the trial court could have determined
that the parents voluntarily absented themselves from trial. 1 We note that the trial in this case
took two days, commencing on July 17 and concluding on July 18, and that the parents were not
present on either day. We hold that sufficient cause for a continuance was not shown and that the
trial court did not abuse its discretion in denying the parents’ motions for continuance. The
father’s fifth issue and the mother’s second issue are overruled.
                                                  Father’s Notice of Trial
          In his sixth issue, the father contends that he did not receive notice of the final trial. This
contention is without merit. The record shows that the failure, if any, of the father to receive
actual notice of the trial setting was his own fault. The father’s attorney diligently attempted to
personally notify the father, who failed to keep in contact with his attorney and failed to notify


          1
           We note that both parents also failed to attend the January 30, 2012 hearing regarding removal from the monitored
return and that the hearing was reset due to their absence. The mother had notice of the January 30 hearing, and her attorney
expected her to be present. The father’s attorney could not locate the father, but he had left a message with the father’s relative.
The father also failed to attend the permanency hearing on May 7, 2012.

                                                                 8
his attorney of his whereabouts and his contact information. The father’s attorney ultimately sent
notice to the father’s father, who agreed to deliver the notice. Counsel was informed by two of
the father’s relatives that the father was aware of the trial setting and was going to be present for
trial on July 17. Furthermore, the father’s attorney had received notice and was present for the
trial. See TEX. R. CIV. P. 8, 21a. Counsel’s knowledge of a trial setting is imputed to his client.
In re G.N.M., No. 04-10-00729-CV, 2011 WL 1044407 (Tex. App.—San Antonio Mar. 23, 2011,
pet. denied). The father’s sixth issue is overruled.
                                          Dismissal Date
       Both parents assert error regarding the mandatory dismissal date addressed in TEX. FAM.
CODE ANN. § 263.403 (West 2008). In his seventh issue, the father contends that the trial court
lacked jurisdiction because the dismissal date had expired. In her first issue, the mother contends
that the trial court erred in failing to dismiss this case after it failed to enter a written order
setting a dismissal date when F.E.M. was removed from the monitored return.
       With respect to the father’s complaint, a trial court does not lose jurisdiction over a
termination proceeding when the dismissal date passes; the dismissal dates are not jurisdictional.
In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). Furthermore, a
party who fails to “make a timely motion to dismiss” prior to the commencement of the trial in
this type of case waives the right to object to the trial court’s failure to dismiss the suit. TEX.
FAM. CODE ANN. § 263.402(b) (West 2008). The record shows that the father filed his motion to
dismiss on September 25, 2012, and that the mother filed her motion to dismiss on October 4,
2012. Both motions were untimely as they were filed after the order of termination and more
than two months after the trial commenced. Therefore, both parents waived the right to object to
any failure of the trial court to dismiss this suit based upon the mandatory dismissal date.
       Moreover, the record does not support the parents’ contentions. The dismissal date had
not lapsed in this case. The original dismissal date in this case was July 23, 2012. See id.
§ 263.401. Pursuant to Section 263.403(b)(2), upon entering an order granting the monitored
return of F.E.M. to the parents, the trial court scheduled a new, appropriate dismissal date of
February 5, 2012.      However, F.E.M. was removed from the monitored return effective
January 25, 2012. At a January 30 hearing, the dismissal date of July 23, 2012, was discussed by
the parties’ attorneys, as that date was determined by them to be 180 days from the date F.E.M.
was returned to foster care. During that hearing and in open court, the trial court “extend[ed] the

                                                  9
deadline by the six-month period that’s permitted” upon removal from a monitored return. The
trial court thus complied with Section 263.403(c), which does not require that the dismissal date
be included in a written order entered at the time of removal but, rather, that the trial court “shall,
at the time of the move, schedule a new date for dismissal.” We note that, on March 5, 2012, the
trial court entered a written order indicating that July 23 was the dismissal date.                 Trial
commenced on July 17, 2012, before the dismissal date. We overrule the father’s seventh issue
and the mother’s first issue.
                                   Ineffective Assistance of Counsel
        In both parents’ final issue, they complain that their trial counsel rendered ineffective
assistance of counsel. A parent in a termination case has the right to “effective counsel.” In re
M.S., 115 S.W.3d 534, 544 (Tex. 2003). To prevail on a claim of ineffective assistance of
counsel, a parent must show that trial counsel’s performance was deficient and that the deficient
performance was so serious as to deny the parent a fair and reliable trial. In re J.O.A., 283
S.W.3d 336, 341–42 (Tex. 2009) (following the two-pronged analysis of Strickland v.
Washington, 466 U.S. 668 (1984)).
        The father specifically asserts that counsel was deficient in (1) failing to object to the
Department’s request that the trial court take judicial notice of the contents of the trial court’s
file, (2) failing to timely object to the jurisdiction of the court, and (3) failing to bring to the trial
court’s attention that the father did not have a court-ordered service plan. First, a trial court may
take judicial notice of the contents of its file, but may not take judicial notice of the truth of any
factual allegations contained in its file. In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San
Antonio 2012, no pet.). Nothing in the record indicates that the trial court took judicial notice of
the truth of any disputed matter contained in its file or that it was requested to do so. Thus, trial
counsel was not deficient in failing to object. Second, as discussed above, the trial court had
jurisdiction to hear this case; further, trial was commenced prior to the dismissal deadline. Thus,
even a timely objection or motion to dismiss would not have had merit. Third, the record shows
that a family service plan had been instituted for both parents. The mother signed the plan on
August 29, 2011, and a copy containing her signature was filed with the trial court that same day.
A note on the plan indicates that the father refused to sign the plan until he had conferred with
his attorney. The father subsequently signed the plan in September, and a copy of the service
plan containing both parents’ signatures was filed in the trial court on September 14, 2011.

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These plans are exact copies of each other with the exception of the father’s signature. The trial
court subsequently signed an order incorporating “the plan of service for the parents, filed with
the Court on August 29, 2011.” Although the father had not signed that copy of the service plan,
its terms applied to him. Furthermore, the trial court instructed the father at the adversary
hearing on August 9, 2011, regarding the court’s orders, which included submitting to a hair
follicle test within ten days; continued urinalysis tests every three days; and participation in
anger management courses, parenting classes, a psychological evaluation, and a drug and alcohol
assessment. Meador’s testimony also indicated that the family service plan was court ordered
and that both parents were present at the family group conference that resulted in the service
plan. We cannot hold that the father’s attorney rendered ineffective assistance of counsel by
failing to notify the trial court that the father had no court-ordered service plan. The father’s
eighth issue is overruled.
       The mother contends that her counsel was deficient for failing to ensure that the mother
received timely notice of the trial date, failing to ensure that she would be able to appear at trial,
failing to send discovery requests in a timely manner, failing to timely file a motion to dismiss,
and failing to file a sufficient motion for continuance. The record does not support these
contentions. The record shows that the mother had timely notice of the trial date but that she
failed to attend despite the efforts of her attorney and the trial court. As discussed above, this
case was not subject to dismissal because the trial court complied with the statutes regarding the
setting of mandatory dismissal deadlines and because trial was commenced prior to the
appropriate deadline. Finally, any failure of counsel with respect to the motion for continuance
was due to the mother’s inability or unwillingness to be present for trial and her failure to notify
her counsel of such in a timely manner. Furthermore, even if the motion for continuance had
been supported by an affidavit, it would have been within the trial court’s discretion to deny the
motion for lack of sufficient cause based upon the mother’s actions and the impending
mandatory dismissal date.
       With respect to the discovery requests, the mother asserts that trial counsel failed to seek
discovery about witnesses and experts until after it was too late to do so. The record from
July 16 reflects that, although the mother’s trial counsel filed an untimely request for discovery,
he had received “pretty close to 1500 pages of documents” from the Department. The mother’s
attorney specifically complained that he had not received a “194 response” or “the drug testing

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protocol.” There is nothing in the record to indicate that the Department was in possession of
“the drug testing protocol”; the Department had provided documents regarding the results of the
parents’ drug tests, but not the protocol for that testing. On July 17, the mother’s attorney
announced that he had met with the Department’s attorney after the July 16 hearing and that she
had “provided [him] with all of the discovery that [he had] asked for.” Even assuming that trial
counsel was deficient in filing an untimely discovery request, the mother has not shown that she
was prejudiced—denied a fair and reliable trial—by this alleged deficiency. The mother’s sixth
issue is overruled.
       The trial court’s order of termination is affirmed.




                                                             JIM R. WRIGHT
                                                             CHIEF JUSTICE


March 14, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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