                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-164-CV


IN THE INTEREST OF S.W.
AND S.W., CHILDREN




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           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      Appellant S.B. appeals the trial court’s order terminating her parental

rights to her children, S.W. and S.W.2 In two issues, appellant contends that

the trial court abused its discretion by denying her motion for continuance, and

that the evidence presented at trial was factually insufficient to prove that

      1
          … See Tex. R. App. P. 47.4.
      2
       … The names of the parent and children subject to this appeal have been
replaced with initials in accordance with Texas Rule of Appellate Procedure 9.8.
Tex. R. App. P. 9.8.
termination of the parent-child relationship was in her childrens’ best interests.

We affirm.

                                   Background Facts

       On April 27, 2007, appellant gave birth to twin daughters (the twins).

The twins were born prematurely, weighing approximately four pounds each

when delivered, and both had heart murmurs which required them to be closely

monitored during an extensive hospital stay. On May 29, 2007, upon their

release from the hospital, the Texas Department of Family and Protective

Services (the Department) removed the twins from appellant’s custody and

placed them with foster parents. The next day, the Department filed a petition

to gain conservatorship of the twins and to terminate the twins’ relationship

with   appellant.    The   trial    court   granted   the   Department   temporary

conservatorship and scheduled an adversary hearing under the Texas Family

Code. See Tex. Fam. Code Ann. § 262.201 (Vernon Supp. 2008). Appellant

received a copy of a “Family Service Plan” (service plan) from a Department

caseworker in June 2007, which required her to participate in drug

assessments, parenting classes, psychological evaluations, and counseling

sessions, among other tasks. The trial court ordered that appellant comply with

the service plan in July 2007. However, at the time of trial in April 2008,

appellant had not completed any of the required services.

                                            2
      Appellant visited the twins twice in June 2007, and then left alone for

Atlanta, Georgia in July 2007.         Appellant returned to Texas around

Thanksgiving of that year and visited the twins twice more before traveling

back to Atlanta. Finally, appellant returned again to Texas and had two visits

with the twins in March and April 2008. In total, from their removal from her

custody in May 2007 until the termination trial in April 2008 (a period spanning

almost eleven months), appellant saw the twins six times, for an hour on each

occasion. During the visits, the twins often became agitated and began crying

when separated from their foster mother.

      On April 10, 2008, based in part on information received from appellant,

the Department amended its petition for termination to name a new father of

the twins. On April 15, 2008 (the trial date), the Department filed a motion to

sever the alleged father from appellant’s case, so that appellant’s case could

proceed to trial. That day, appellant moved for a continuance to allow her more

time to complete her service plan, and she argued against the Department’s

severance motion.      The trial court granted the severance, denied the

continuance, and heard testimony from appellant and two Department

employees on the termination petition.

      The evidence established that appellant has given birth to a total of seven

children, including most recently the twins. Appellant does not have custody

                                       3
of any of her previous five children, and her parental rights have been

terminated with respect to three of these children. During her pregnancy with

the twins, appellant smoked marijuana, and she tested positive for marijuana

at their birth. Appellant also testified that she smoked marijuana each of the

two days preceding her termination trial, that she has had problems with drugs

for eight years, and that she has never entered any drug rehabilitation program.

Upon giving birth to her fifth child, appellant tested positive for marijuana and

cocaine.

      The evidence further indicated that appellant was unemployed but was

looking for a job at fast food restaurants and grocery stores and was receiving

$308 per month in social security insurance payments. Appellant said that

upon finding employment, a sister (who has a theft conviction) had agreed that

she would watch the twins while appellant worked. Testimony demonstrated

that the twins had no place to permanently reside, had no options for

placement with relatives, and had no medical insurance (though appellant

testified that she would apply for benefits from Medicaid or the Children’s

Health Insurance Program). Also, appellant had no cribs or other supplies for

the twins and had no stable transportation.

      After the evidence was closed and counsel argued, the trial court

terminated appellant’s parental relationship with the twins. Specifically, the

                                       4
trial court found that appellant (1) knowingly placed or knowingly allowed the

twins to remain in conditions or surroundings which endangered their physical

or emotional well-being, (2) engaged in conduct or knowingly placed the twins

with persons who engaged in conduct which endangered their physical or

emotional well-being, and (3) had previously had her parent-child relationship

terminated with respect to another child based on an adverse finding regarding

these previous two standards. See Tex. Fam. Code Ann. § 161.001(1)(D), (E),

(M) (Vernon Supp. 2008). The court also found that termination of appellant’s

parental   relationship   with   the   twins   was   in   their   best   interests.

Id. § 161.001(2). Appellant timely filed this appeal.

                     Denial of the Motion for Continuance

      In her first issue, appellant contends that the trial court erred in denying

her motion for continuance. We review a trial court’s ruling granting or denying

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). We do not substitute our

discretion 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. Marchand, 83 S.W.3d at 800. The focus is on

whether the trial court acted without reference to guiding rules or principles.

                                        5
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).                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. Tex. R. Civ. P. 251;

see also In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.—Houston [14th Dist.]

2002, no pet.) (noting that “to grant or deny a motion for continuance is within

the trial court’s sound discretion”).

      Appellant contends that a continuance should have been granted because

she needed more time to complete her service plan and the twins’ father’s

termination case was still pending; therefore, a delay in the proceedings would

not have harmed the twins by delaying their permanent placement.

      We have held that when 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 in order to complete the plan, the trial court does not

abuse its discretion by denying the continuance.         See In re L.D.K., No.

02-07-00288-CV, 2008 WL 2930570, at *2–3 (Tex. App.—Fort Worth July

31, 2008, no pet.) (mem. op.); see generally E.L.T., 93 S.W.3d at 374

(explaining that to be reversible, a denial of a continuance must be “so arbitrary

as to exceed the bounds of reasonable discretion”). The record demonstrates

that appellant received her service plan in June 2007, that the Department filed

the service plan in July 2007, and that the trial court ordered appellant to

                                        6
comply with the service plan’s provisions later that same month. However, at

the time of trial in April 2008, appellant had not completed any of the service

plan’s requirements.

      Instead, appellant spent much of the time between June 2007 and April

2008 in Georgia for a temporary visit to “get away from trouble” and give her

“peace of mind.” Though acknowledging that she understood the service plan,

appellant testified that she chose to travel to Georgia voluntarily and to neglect

her service plan during her trip.     In the time appellant was away, three

documents were filed which indicated appellant was noncompliant with her

service plan. Appellant similarly failed to complete her service plans during prior

cases involving her other children.

      Under these facts, we cannot conclude that the trial court abused its

discretion by denying appellant’s continuance for more time to complete her

service plan.

      Likewise, we are unpersuaded that a continuance should have been

granted because the twins’ father’s case remained unresolved. The record

indicates that the Department was proceeding with exploring permanent options

for the twins. For instance, a Department caseworker testified that within a

couple weeks of appellant’s termination trial, she planned on beginning to study

the placement options related to four families who had already submitted

                                        7
adoption applications. Once a prospective adoptive family was chosen, the

Department planned to begin scheduling interaction between that family and the

twins. Further, appellant testified that the twins’ father planned on continuing

to reside in Georgia (making it unlikely that he would contest the termination

proceedings against him).

      Finally, we note that even if appellant had been granted more time to

complete her service plan, she cannot demonstrate that the result of these

proceedings would have changed because appellant’s relationship with the

twins was not terminated for failing to complete her service plan, but was

instead terminated for other statutory reasons. For this reason as well, the trial

court did not abuse its discretion by denying her motion for continuance.3 See

In re H.B., No. 02-06-00102-CV, 2006 WL 3438193, at *2 n.6 (Tex.

App.—Fort Worth Nov. 30, 2006, no pet.) (op. on reh’g) (mem. op.).

      Therefore, we hold that the trial court did not abuse its discretion by

denying appellant’s motion for continuance.          Accordingly, we overrule

appellant’s first issue.




      3
      … We are reviewing here evidence relative to the termination only for
purposes of evaluating the trial court’s discretion in granting or denying the
continuance.

                                        8
                               Factual Insufficiency

      In her second issue, appellant contends that the evidence was factually

insufficient to show that termination of her parental relationship with the twins

was in their best interests.

Standard of Review

      In reviewing the evidence for factual sufficiency in a termination case, we

must give due deference to the fact-finder’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 fact-finder could reasonably

form a firm conviction or belief that termination of appellant’s parental rights

was in the best interest of the twins. In re C.H., 89 S.W.3d 17, 28 (Tex.

2002). If, in light of the entire record, the disputed evidence that a reasonable

fact-finder could not have credited in favor of the finding is so significant that

a fact-finder 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 we have concluded that a reasonable fact-finder could

not have credited disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d 256, 266–67 (Tex. 2002).




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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.” C.H., 89 S.W.3d at 26. 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)

(Vernon Supp. 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 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 prove that termination




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is in the best interest of the child. 4 Tex. Fam. Code Ann. § 161.001 (Vernon

Supp. 2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).         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 clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a); J.F.C., 96 S.W.3d

at 263. 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.

      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). 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.


      4
       … A petitioner must also prove that the parent has violated one of the
several statutory provisions contained in the family code. Tex. Fam. Code Ann.
§ 161.001(1). However, appellant has agreed that a violation of at least one
of these provisions was established at trial, and we will therefore limit our
analysis to whether termination was in the twins’ best interests. See id.
§ 161.001(2).

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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

      (9)   any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

      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.

C.H., 89 S.W.3d at 27. On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding. Id. These factors are

not exhaustive; some listed factors may be inapplicable to some cases; other


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factors not on the list may also be considered when appropriate. Id. For this

reason, we will only discuss the factors which were made relevant by the

evidence submitted at trial and will combine our analysis of factors where the

evidence may concurrently apply.

Analysis

      The desires of the twins and the parental abilities of appellant

      While the twins were less than a year old at the time of the termination

trial and could not therefore specifically express their desires, testimony at trial

indicated that the twins were emotionally attached to their foster parents and

had not bonded emotionally with appellant. However, permanent placement

with the twins’ foster parents was not an option, and a Department caseworker

testified that the twins would need to develop a bond with any permanent

placement, whether appellant or adopting parents. To that end, the evidence

showed that appellant was loving, patient, and appropriate with the twins in her

limited visits with them after removal.      However, appellant chose to visit

Georgia while her termination case was pending rather than complete her

service plan, which may indicate that she was not motivated in developing her

parental abilities.




                                        13
      The present and future physical and emotional needs of the twins

      The evidence submitted at trial indicated that appellant was unprepared

to care for the twins’ physical needs.        For instance, though testimony

demonstrated that the twins would continue to have minor medical issues,

including the possible need for outpatient surgery, appellant had not applied for

insurance for the twins at the time of trial. The evidence also showed that

appellant may not have been aware of the twins’ medical needs. For instance,

though the twins had heart murmurs which required them to be closely

monitored at the hospital for more than a month following their birth, when

asked about whether the twins had medical problems at birth, appellant

responded that they were “just premature.”

      The evidence also established that appellant did not have a job (though

she was looking for work, she had not maintained employment since 1998),

was receiving only $308 per month in social security insurance, had little formal

education (she dropped out of school in the ninth grade), had no place set up

for the children to reside (though she was on the waiting list for Section 8

housing), had no means of transporting the twins (other than possible public

transportation), and had no cribs or other supplies needed by infants. Finally,

though appellant had given birth to five previous children, she did not raise any

of these children.

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      The present and future potential emotional and physical danger to the
      twins, the acts or omissions of the appellant which may indicate that the
      existing parent-child relationship is not a proper one, and any excuse for
      appellant’s acts or omissions

      Extensive testimony at trial indicated that appellant had a long-standing,

persistent drug problem. For instance, appellant had been smoking marijuana

for eight years, used marijuana while pregnant with the twins, used cocaine

while pregnant with a previous child, and had never attempted to enter a drug

rehabilitation program. Further, though appellant recognized that the twins

should not be around drugs and offered to seek counseling for her drug issues,

she admitted to smoking marijuana on each of the two days preceding the

termination trial and indicated that marijuana was her “drug of choice.”

      The plans for the twins by the Department and the stability of their
      proposed placement

      As noted, at the time of trial, four families had already expressed interest

in adopting the twins together. The Department was ready to proceed with

studying those options and was confident that a loving home could be found

for the twins. Prompt and permanent placement for the twins therefore seemed

to be a very attainable goal. In contrast, appellant indicated at trial that she

was requesting that the court give her more time to complete her service plan

and that the issue of permanent placement could be decided at a later date.




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     We hold that these facts, applied cumulatively to the Holley factors,

enabled the trial court to reasonably form a firm conviction or belief that

termination of appellants’s parental rights was in the twins’ best interests.

C.H., 89 S.W.3d at 28. We therefore overrule appellant’s second issue.

                                 Conclusion

     Having overruled both of appellant’s issues, we affirm the trial court’s

order terminating appellant’s parental rights to S.W. and S.W.




                                          TERRIE LIVINGSTON
                                          JUSTICE


PANEL: CAYCE, C.J.; LIVINGSTON, AND MCCOY, JJ.

CAYCE, C.J. dissents without opinion.

DELIVERED: October 9, 2008




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