                     In the
                Court of Appeals
        Second Appellate District of Texas
                 at Fort Worth
             ___________________________
                  No. 02-19-00247-CV
             ___________________________

IN THE INTEREST OF K.H., Q.H., Q.H., AND S.R., CHILDREN



           On Appeal from the 30th District Court
                 Wichita County, Texas
               Trial Court No. 13073-JR-A


           Before Kerr, Womack, and Wallach, JJ.
          Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                  I. INTRODUCTION

       This accelerated appeal arises from a final judgment in a suit in which

termination of the parent-child relationship was at issue.1 The children are Rachel,

Josh, Allen, and Sally.2 The parents are Mother, who is the biological mother to all

four children; Harry, who is the biological father to Rachel, Josh, and Allen; and

Reagan, who is Sally’s biological father, but he has not appealed the termination of his

parental rights.

       In two issues, Mother argues that the evidence is legally and factually

insufficient to show that termination of her parental rights was in the children’s best

interest. In one issue, Harry argues that the “trial court erred in allowing the jury’s

decision to terminate [his] parental rights without providing him any meaningful way

to participate in the proceedings, therefore violating his Federal and Texas rights to

due process.” Specifically, Harry argues that the trial court erred by not granting him

a bench warrant to allow him to participate in trial. We will affirm.




       See Tex. Fam. Code Ann. § 109.002(a-1).
       1


       2
        In order to protect the identity of the minor children in this case, we use
aliases or initials in the place of proper names when referring to a child or the parents.
See Tex. R. App. P. 9.8 cmt., 9.10; Tex. App. (Fort Worth) Loc. R. 7.

                                            2
                                  II. BACKGROUND

       After Mother gave birth to Sally on January 19, 2018, Sally tested positive for

cocaine and marijuana. The Department of Family and Protective Services then

removed all four children from Mother’s care. Eventually, the Department sought

termination of Mother’s, Harry’s, and Reagan’s parental rights to Rachel, Josh, Allen,

and Sally.

A.     Mother’s Initial Testimony

       At trial, the Department called Mother to testify. Mother confirmed that the

Department became involved in her and her children’s lives when Sally tested positive

for cocaine and marijuana. Mother admitted that she had used both drugs toward the

end of her pregnancy with Sally, but Mother said that she had only used cocaine once

and that she has not used the drug since. She also averred that she had only used

marijuana once, sometime between New Years 2019 and Easter 2019, since her

pregnancy with Sally. Mother agreed, however, that she had tested positive for

cocaine and marijuana multiple times during the pendency of this case.

       Mother testified that she remembered when the court ordered her service plan

and that it had been impressed upon her by the trial court that failure to follow her

service plan could result in her parental rights being terminated. Mother said that she

knew that as part of her service plan, she was expected to submit to random drug

testing. Initially, Mother averred that she had never missed or refused a drug test, but

then after being confronted with the fact that she had missed three drug tests, she
                                           3
admitted that she had missed one because of a lack of transportation and another

because she was in jail.       According to Mother, on the occasion she lacked

transportation, she did not return her caseworker’s text telling her to submit to the

test. And even though the Department had previously provided her transportation

for other tests, Mother did not call her caseworker to inform him that she lacked

transportation. Mother acknowledged that she had tested positive for cocaine on

June 6, 2019, two days after she had been released from jail.3 She also agreed that she

had been told by her caseworker that she had tested positive for cocaine on May 21,

2019, when she had sought medical care for her sickle cell anemia, but Mother swore

that she had not used the drug during that time period.

      Mother also said that although she had not told the Department, doctors

confirmed on May 21, 2019, that she was again pregnant. Mother agreed that using

cocaine or marijuana while pregnant could be dangerous to her and her unborn child.

      Even though she said multiple times that she had only used cocaine once

toward the end of her pregnancy with Sally, at other times Mother testified that she

had used cocaine “a few times.” Specifically, Mother admitted that she had used

cocaine a week before Sally’s birth and at least once prior to November 2016, before

she was pregnant with Sally.



      3
       The record indicates that Mother was arrested and taken to jail for possession
of drug paraphernalia in May 2019.

                                          4
      Mother stated that even though she had gone to domestic-abuse counseling

and had learned that the best course of action was to stay away from abusive people,

during November 2018, after she had attended the classes, she called the police

multiple times regarding Reagan. One of these incidents included Reagan punching

Mother in the eye, and another involved Reagan pulling Mother’s hair and slapping

her in the face. Mother averred that she never pressed charges against Reagan

because the two had broken up, but after the couple had ended their relationship,

Reagan began to send threatening text messages to Mother telling her that he was

going to kill her. After the text messages, Mother told police that she wished to press

charges, but she never did. Mother also recalled an incident that occurred late in

November of 2018 wherein Reagan threw a rock through Mother’s bedroom window.

Again, Mother told police that she would prosecute, but she never did.

      Even though Mother claimed that she was no longer in a relationship with

Reagan, she agreed that Reagan was the father of the child she was carrying at the

time of trial. She also agreed that she called Reagan while she was in jail for the

paraphernalia charge, and he bailed her out.       The Department also introduced

evidence that Mother had reported domestic violence between her and Reagan in

February and March of 2017 and in November of 2018.

      Mother said that when she was in a relationship with Harry, he also physically

assaulted her but that she did not involve the police. Specifically, Mother said that

Harry had beaten her, slapped her, punched her, choked her, and held her hostage
                                          5
with a gun. According to Mother, she previously lived in Florida, and Harry had

stayed with her and her children for a short time while they lived there, but Mother

averred that Harry did not have a lot of contact with his own children because he was

repeatedly arrested. She testified that Harry’s abusive behavior did not begin until

they had moved to Texas. She also said it was no longer appropriate for Harry to

have contact with his children because he was currently facing capital-murder charges

for having murdered his girlfriend.

      Mother said that she had completed some of her court-ordered services,

including attending and completing anger management counseling. Mother testified

that she always reported her living arrangements and her employment status to her

Department caseworker, but she agreed that despite her service plan’s requirement to

do so, she had never provided pay stubs or a monthly budget to her caseworker.

Mother stated that she had always lived in a safe and stable home with working

utilities during the pendency of this case, but that when she lived with her brother,

despite the requirements of her service plan, she never provided the Department with

her brother’s name, date of birth, driver’s license number, or his social security

number. Mother averred, however, that she had lived in home environments that

contained both illegal drug use and domestic violence.

      Mother also said that, in accordance with her service plan, when she had

visitation with the children, she would always bring the kids things like toys or

clothing. Mother stated that she had not complied with or fully participated in a drug
                                          6
and alcohol assessment as required by her service plan. She also agreed that she had

not fully complied with her requirements regarding visitation with the children.

Mother further admitted that she did not fully comply with her court-ordered drug

treatment.

      Mother said that despite her earlier testimony that she had never used drugs

once the Department became involved in her life, she had smoked marijuana during

the pendency of this case. She also reiterated that even though drug testing showed

otherwise, she had not used cocaine since Sally was born.

      Mother averred that she had been incarcerated on three different occasions,

once for burglary of a habitation and twice for theft. She also said that she had been

in jail more than a dozen times, most recently for possession of drug paraphernalia.

      Regarding her plans for the four children if they were returned to her, Mother

said that she intended to continue living with her brother and his girlfriend, that her

brother was aware that she might move four children into the home with them, and

that brother’s home had five bedrooms. Mother said that she planned to enroll the

three older children in school and that she would primarily care for Sally but that

because she intended to get another job, her brother would care for Sally while she

worked. Mother admitted that her brother had served more than five years in prison

prior to 2015 for aggravated assault causing bodily injury. Mother also said that she

intended to live with her brother only for a short time and then move to Fort Worth.


                                          7
       On cross-examination, Mother acknowledged that she had lied about being

pregnant to Allen and Sally’s ad litem attorney at visitation on May 21, 2019. She also

said on cross that, although Harry had committed what she considered abuse against

Rachel and Josh, she believed it was justifiable discipline because the children had

disrespected Harry, and one is to “honor your mother and your father.”

B.     Rachel’s Testimony

       Rachel testified via video testimony.4 Rachel said that at the time of her

testimony she was eleven years old and in the sixth grade. She also said that Harry

was her father, that Mother was her mother, and that Josh, Allen, and Sally were her

siblings. Rachel said that she loved each of her siblings.

       Rachel recalled living with Mother and her siblings prior to being removed in

January 2018. By Rachel’s account, Mother was a good cook, she kept the house

clean, and Rachel said that she loves her. Rachel also said that her mother had

expected her to follow rules and to do her chores but that she never feared Mother.

She further stated that when she lived with Mother there was always plenty of food

and clothing and that all the utilities were functioning.

       According to Rachel, she had lived in eight different placements in varying

Texas towns and cities during the pendency of this case. Rachel said that she never


       See Tex. Fam. Code Ann. § 104.003(a) (allowing for the testimony of a child to
       4

be taken and recorded outside the courtroom for the purpose of showing the
recorded testimony at trial).

                                             8
lived in one foster home for more than a few months. Sometimes Rachel was placed

in the same place with her brothers but at other times she lived in a separate foster

home. Rachel said that she had never been placed with Sally. Rachel stated that being

separated from her siblings had been hard on all of them.

      Rachel recalled that her move away from one of the foster homes was because

another child had touched her “in a weird way.” She also recalled how her brothers

and she had been placed with Aletha Redd, who was Harry’s current girlfriend’s

mother, but that after three weeks Redd dropped them off at a mental hospital and

drove away.

      At the time of her testimony, Rachel lived in the Children’s Home in Wichita

Falls but plans had already been made to move her to a ninth foster home the next

day. Rachel also averred that moving several times had made it hard for her to make

friends at school but that when she lived with Mother she had gone to the same

school and had friends.

      When asked what her wishes were, she said that she wanted “to go home”

because she missed Mother and her siblings. When asked what she wanted the jury to

do with her siblings, Rachel said that she wanted them to also be allowed to come

home. She further testified that during visits with Mother, Mother had often brought

her “[n]ew shoes, new clothes, fanny packs, [and] all types of stuff.”

      Rachel said that she had never seen Reagan hit Mother when he was around

prior to removal and that she had never feared him, but she did recall that Mother had
                                            9
said Reagan had pulled Mother’s hair once. She did remember Mother and Reagan

having argued, and she believed that Reagan took illegal drugs because of the way he

had behaved sometimes. She also remembered a time when Mother had refused to let

Reagan in the house, and he got angry and beat on the door.

      Rachel testified that she did not have a relationship with her father, Harry, but

she did remember that Harry used to hit Mother because Mother would cry and tell

Rachel what had happened. Rachel said that she knew that Harry used marijuana

because “he kept on saying that he wanted it.” She also said that she had never seen

Mother do drugs other than the ones prescribed for Mother’s sickle cell anemia. But

Rachel said that she was aware that Sally had been born with both cocaine and

marijuana in her system and that meant that Mother must have used both drugs.

      According to Rachel, when she was in Redd’s care, Harry had visited them and

sometimes watched them when Redd was sick. Rachel was also aware that Mother

had spent time in jail and prison.

C.    Josh’s Testimony

      Josh also testified via videotaped testimony. Josh was eleven years old at the

time of his testimony and about to enter the sixth grade. By Josh’s account, he had

been in the Department’s care since January 2018. Josh said that he was close to

Rachel and that he enjoyed Allen and Sally. Much like Rachel’s testimony, Josh said

that Mother was a caring mother and that in addition to cooking and cleaning the

house, she had also imposed rules and chores on him and that he had learned to be
                                         10
polite from Mother. And like Rachel, Josh said that he had lived in at least eight

foster homes during the pendency of this case and that most of the time he had been

placed with Allen, but rarely were he and Allen placed with Rachel. Josh said that he

never lived in the same home as Sally.

       Josh also recalled how, after the children had been placed with Redd and after

Redd had gotten into an argument with Mother over the phone, Redd had dropped

him and his siblings off in front of a mental hospital and drove away.5 Josh said that

he had never feared Mother, that she had made sure that he and his siblings attended

school, and that he had enjoyed the schools he went to while living with Mother.

Josh averred that he was a happier child when he lived with Mother, that he always

felt safe in her care, and that he was asking the jury to let him live with Mother and his

siblings.

       Josh stated that he missed Mother and his siblings and that being separated

from them had been hard on him. Josh expressed that he no longer wanted to move

from house to house and that he “just want[ed] to stay home.” He also said that he

was tired of having to learn to get used to living with people he did not know.




       5
        The record indicates that it was Mother and Harry who requested that Rachel,
Josh, and Allen be placed with Redd as a “fictive kin” placement. The record also
indicates that the children’s placement in other relatives’ homes was at the behest of
the parents. Thus, some of the multiple placements were predicated on the parent’s
requests and not necessarily because of instability in the prior placement.

                                           11
      Josh testified that when Mother had visited him, she had brought him clothes,

shoes, and hats. Josh further said that Mother taught him to be polite to adults, to

work hard at school, and to pay attention to what his teachers were telling him. Josh

described Mother as kind and careful.

      According to Josh, since he was removed from Mother’s care, he has been

prescribed medication for ADHD, something he said he did not take previously. Josh

stated that he was aware that Reagan had struck Mother because he had heard their

arguments, but he had never seen it happen. By Josh’s account, Rachel had witnessed

some of the arguing and fighting. And although Josh could not recall what the

fighting was about, he did remember Mother telling Reagan to leave, which he

eventually did. Josh said that he had heard from Rachel that Sally was born with

cocaine in her system but that Mother had never told him as much.

      Josh recalled how, when the family was living in Florida, he and his siblings had

once been removed from Mother’s care and placed in a foster home when Mother

went to jail.    Josh also said that although Mother had never said as much, he

interpreted Mother’s relationship with Reagan as a “dating” relationship and that this

relationship had gone on through the pendency of this case. Josh refers to Reagan as

his “stepdad.”

D.    The Department’s Caseworker’s Testimony

      Omarion Bradford testified that he was the Department’s caseworker involved

in these proceedings. After discussing Harry’s lack of involvement with this case,
                                         12
Bradford said that on one occasion during the pendency of this case, Mother had

allowed Harry to stay the night with her, and Bradford had once seen Mother in

Harry’s car.

      Regarding Mother’s drug use, Bradford testified that in all, Mother had failed

seven drug screenings by either failing to show up or by testing positive for marijuana

or cocaine.

      Bradford averred that Mother had not complied with many of the provisions of

her service plan. Bradford said that it was inappropriate for Mother to continue to

have a relationship with Reagan and that she should have learned in the domestic-

violence classes to separate herself from abusive people and that Reagan was one of

the people she should avoid. He also stated that Mother’s continued relationship with

Reagan demonstrated her inability to provide a safe environment for the children,

given that in addition to the domestic violence between Mother and Reagan, Reagan

has a criminal history that includes assault family violence and multiple arrests for

drug possession. Bradford further said that it was his understanding that Reagan is a

known member of a street gang named the Hoova Crip Gang in Wichita County and

that his association with that gang had been documented as recently as February 2017.

      According to Bradford, Mother had not been honest with the Department

during the pendency of this case. Specifically, Mother had lied about drug use and her

relationship with Reagan. Bradford said that Mother’s use of cocaine and marijuana

while pregnant with Sally endangered Sally. Bradford also recalled how on more than
                                          13
one occasion, Mother had attempted to remove Sally from a car seat while the vehicle

was moving while Mother and Sally were in the vehicle with Bradford.

      Bradford said that he considered Mother and Reagan to be in a relationship

because she was pregnant with his child at the time of trial and because he knew that

they would say “I love you” to each other as they ended any phone conversations.

However, according to Bradford, Mother had denied being in a relationship with him

and never told Bradford that she was pregnant with Reagan’s child. Bradford stated

that Mother had not complied with the condition that she let him know within three

days of any address, phone number, or change in circumstances. Bradford also said

that Mother had not maintained significant contact with her children, including not

making timely and regular visitations that were scheduled by the Department.6

Bradford said that he first learned of Mother’s intentions to move in with her brother

if the children were returned to her on the first day of trial when Mother testified.

Bradford said that it concerned him for the children’s safety that Mother’s brother

had served more than five years in prison for aggravated assault.

      Regarding Sally, Bradford averred that Sally had been with the same foster

family since being placed there almost immediately after her birth. He also said that

Sally had never been in Mother’s care. Bradford said that Sally is doing “extremely


      6
        Bradford testified that Mother had made only seventy-seven percent of her
scheduled visitations and that he did not consider that to be significant contact with
the children.

                                          14
well” in her foster home, that the foster parents take her to all necessary doctor’s

visits, and that Sally is very bonded with the foster parents. Specifically, Bradford said

that “[y]ou couldn’t tell that [Sally] wasn’t [the foster parent’s] child.” Bradford

further stated that at the end of Mother’s visits with Sally, Sally would immediately run

to her foster parents when they returned to pick her up. Bradford also testified that

the foster parents had consistently transported Sally to visitations, some of which

Mother missed, and that they had attended the majority of the court proceedings in

this case.

       Bradford said that Mother’s drug use, continual involvement in domestically

abusive relationships, and her repeated contacts with law enforcement demonstrated

that Mother had engaged in conduct which endangered the physical and emotional

well-being of Sally. Bradford said that the Department was asking that both Mother’s

and Reagan’s parental rights be terminated because the Department’s plans for Sally

were for the foster parents to adopt her, and they have expressed a desire to do so.

       According to Bradford, initially when Mother had visited the children, she

would be disengaged and mainly payed attention to her cell phone, but “towards the

end that was corrected.” Bradford said that although Mother often appeared to be a

“good parent,” her continuing involvement in domestically violent relationships, her

repeated arrests, her changing stories, her lying, and her drug use demonstrated a

failure in parenting abilities as well as an inability to provide any of the children with a

safe environment. Bradford also said that Mother’s past conduct had allowed Rachel,
                                            15
Josh, and Allen to remain in an environment which endangered their physical and

emotional well-being and that Mother had also placed Rachel, Josh, and Allen with

individuals who engaged in conduct that endangered their physical or emotional well-

being.

         More specifically regarding Rachel, Josh, and Allen, Bradford said that initial

placement of the three siblings in foster care had not worked out because the children

had difficulty adapting to foster care and that the foster parents asked that the

children be removed from their care after only six weeks. The siblings had then been

placed together in a second foster home, but again that did not work out and lasted

only six weeks because Allen was having issues with other foster kids in the home.

From there, the Department placed Josh and Allen together in a foster home and

Rachel in a separate foster home.

         Rachel’s stay in her third foster home did not last long because, according to

Bradford, another foster child had spanked Rachel on her bottom. The Department

relocated Rachel to a fourth foster home. And then, because it had ostensibly been

urged by the parents, the Department relocated Rachel to Mother’s cousin’s home

and Josh and Allen to another nearby cousin’s home. Neither of these placements

ultimately worked out, and the three children were again moved to other foster

homes, only this time in different homes in different cities. Not long after that, the

three children were placed in the home of a “fictive kin,” Redd, whom the three

children knew. Bradford averred that while there, Harry, against the Department’s
                                           16
edicts, had watched the three kids by himself. Bradford also said that there was

evidence that Harry had physically abused Rachel during that time. Redd ultimately

decided that she could not care for or tolerate the children, and she dropped them off

in front of a mental hospital and drove away. After that, the three children were

placed in the Children’s Home in Wichita Falls.

      At the time of trial, the three children had been placed in three separate foster

homes or facilities in three different cities in Texas. In all, Rachel, Josh, and Allen

have each been placed in more than eight different foster homes or facilities during

the pendency of this case. But Bradford did testify that while Josh and Allen were

placed in a foster home in Houston and Rachel was placed in a separate foster home

in Houston, all three had been “doing real good,” but that their parents had requested

a fictive kin placement; thus, the children were removed. Bradford averred that

despite the many moves, Josh and Allen were doing well in school and that Rachel

was at the same level as she was prior to the Department’s involvement.

      With regard to Rachel’s current placement, Bradford said that he had visited

the foster home, that Rachel was getting “along real well,” and that there was a foster

girl around Rachel’s age who is also living in the same foster home. In contrast, Allen

had already experienced behavioral problems in a new foster home, including

breaking a window with a brick, attempting to drive the family’s four-wheeler without

permission, chasing another foster child with an electric drill, riding his bike in the

middle of the street, and attempting to unbuckle his seat belt and open the car door as
                                          17
the foster parents were driving. Because of these acts, Allen is now in a residential

treatment center for children with aggressive-behavior issues.               Bradford

recommended that due to Allen’s behavioral issues, the residential treatment center

was currently the best place for him to remain because there are advanced medical,

counseling, and psychiatric treatments available to him.

      At the time of trial, Bradford had not heard how Josh was doing in his current

placement. Bradford did testify, however, that Josh told one of his foster parents that

he had seen Mother having sex twice, that he did not like how many boyfriends

Mother had, and that he wanted to return to Mother’s care even though at times he

had not had enough food while in her care.

      Bradford averred that the Department would make concerted efforts to make

sure the children had visitations with each other in the future. He also said that he

believed that ultimately the Department would be able to find an adoptive home so

that Rachel, Josh, and Allen could live together and that the Department had already

been approached by people who know the children and voiced a desire to adopt all

three. Bradford did say that Sally’s foster parents were only interested in adopting

Sally, but that the Department anticipated that the three older children should be able

to maintain contact with her.

      Bradford testified that the best course of action for all four children was that

each of the parent’s rights be terminated so that the Department could facilitate the

children being adopted. He also said that if any one of the parents maintained
                                          18
parental rights, the Department would be hindered in attempting to find an adoptive

home.

E.      Mother Returned to the Witness Stand

        Mother’s attorney later called Mother again to take the stand. This time,

Mother testified that Rachel is a beautiful and intelligent girl who likes to sing and

dance. According to Mother, prior to her removal, Rachel and she had liked going to

get their nails done, and Rachel loved to go to Walmart. Rachel also helped cook the

family’s meals. Mother described Josh as being an intelligent kid who likes to play

football but cleans and cooks as well.      Mother described Allen as being funny,

intelligent, and “spoiled.” According to Mother, Allen likes to watch movies and

cartoons with her.

        Mother said that she had conditioned her kids to clean their own rooms, to

wash dishes, and to do laundry as chores. Mother said that she had routinely checked

on the children’s homework and that she had made sure the children went to school

regularly. Mother said that if any of the children had acted up, her mode of discipline

was to ground the child and take away privileges, like video games.

        Mother said that the children’s routine had been to get up at 6 a.m., to most

often eat breakfast at home, and then to walk to school with a group of kids. The

children had normally come home after 3:35 p.m., when school let out. Once Mother

was home, she said that she had often checked to make sure the children had done

their homework, and then she would cook dinner. Mother said that the children had
                                          19
routinely bathed and brushed their teeth. She also said that they had always worn

clean clothes, and she had ironed their clothing if needed.

      By Mother’s account, none of the children had needed prescription drugs prior

to being removed. She also averred that Rachel was previously always laughing,

smiling, and joking, but now she seems “more shut down[,] sad[,] and depressed.”

She said that when they had lived with her, the children were very polite and said “yes,

ma’am” or “no, ma’am,” but now the children are less respectful. Specifically, she

said that Allen had never acted out the way that he does now.

      Mother said that her own brother’s behavior had significantly improved after

he served time in prison and that he is now very responsible. Mother said that her

brother’s house is clean, that he has plenty of food, and that all utilities are available.

Mother testified that if the children were returned to her, she would send them to

counseling to recover from the process of having been removed and then moved so

frequently. Mother also said that money for counseling would not be an issue because

the children have Medicaid. Mother denied that she had ever taken Sally out of her

car seat when the Department was transporting them. Mother said that the reason

she had told Reagan she loved him at the end of phone calls was because she was in

jail and attempting to have him bail her out. But she admitted that she had recently

had sex with Reagan and that she had put on her Facebook page that she was

engaged. She also agreed that she had messaged or called him throughout the weeks

leading up to trial and even during trial. By Mother’s account, Reagan had messaged
                                            20
her more than ten times during trial. Mother said that over the last year she had

spoken, seen, or communicated with Reagan “often.”

F.    The CASA Guardian Ad Litem’s Testimony

      Kristen Henry, the CASA guardian ad litem for the children, testified that she

visited with all four children at least a couple of times a month during the pendency of

this case. Henry said that despite Mother having a duty to inform Henry where she

was living, she had not informed Henry that she (Mother) had moved in with her

brother. Henry said that Mother had moved quite often during the course of this case

and that this was evidence that Mother had a pattern of unstable living arrangements.

Henry also said that three of the placements for the children were placements given to

the Department by the children’s parents and that it was concerning that the people

recommended by the parents could not adequately supervise the children. Regarding

Allen’s behavior, Henry opined that because Allen had moved around so much he

had grown frustrated because he had not had “time to actually be a kid.” Henry also

said that after being discharged from one of the foster homes that the parents did not

recommend, Allen had told her that he desired to return to that foster home and was

very frustrated that he could not. Henry further said that Allen was in need of

structure in his life and that she did not believe that either Harry or Mother were in a

position to provide him the structure he needs.




                                          21
      Henry said that the children have knowledge of gangs. Specifically, Henry

recalled that she had taken the children to the park, and upon their return, Josh and

Allen were exchanging gang signs between each other.

      Although Henry acknowledged that this case had been difficult and that there

was no “ideal solution” for the children, she did not believe the children would be

safe with Harry or Mother, and she said she believed that it was in each of the

children’s best interest that their parents’ rights be terminated. Henry also averred

that once the children are in a more permanent place, they will likely receive more

stable and consistent counseling than they do now given how much they had moved.

      According to Henry, she had inquired of Allen where he wished to be

permanently placed, and his initial response was with one of his prior foster homes.

Henry said, however, that when Allen was in the presence of his older siblings who

had expressed a desire to return to Mother’s care, he then said he too wanted to

return to Mother. Henry agreed that Rachel and Josh have always maintained a desire

to be returned to Mother and that they love her. Henry said that when she had

observed Mother’s visits with the children, the children seemed happy, Mother

instructed the children to be polite, and the children’s bond with Mother was obvious.

      Nonetheless, Henry said that given Mother’s continued drug use, unstable

living environments, and her continual involvement with domestic abusers, she

believed it was still in the children’s best interest that Mother’s rights be terminated.

Henry said that she did not find Mother’s explanation that she was being nice to
                                           22
Reagan in order to be bailed out of jail to be credible given that she continues to hang

around him and is now again pregnant with his child.           Henry said that in her

experience it is not uncommon for children to move from place to place while in the

Department’s care, but she said that she had seen a number of children adopted under

similar circumstances—including multiple placements during pendency of a case and

including children with behavioral issues—once the parent’s rights had been

terminated. Henry did state, however, that she had seen a number of children in the

Department’s care not get adopted.

      Henry acknowledged that she had no reason to disbelieve Mother’s testimony

that when the children were in her care, Rachel practiced good hygiene. However,

she further acknowledged that through the course of this case, Rachel had developed

issues with maintaining good hygiene. Henry recognized that Allen’s behavior had

gotten worse since being removed from Mother’s care, and she attributed that to the

many moves that he had experienced while in the Department’s care.

G.    The Outcome of Trial

      A jury ultimately found that Mother, Harry, and Reagan had all committed acts

under Texas Family Code Section 161.001(b) and that termination of the parent’s

parental rights was in each of the children’s best interest. The trial court rendered

judgment accordingly. In its final order, the trial court named the Department as

permanent managing conservator (PMC) to all four children. Mother and Harry now

appeal.
                                          23
                                    III. DISCUSSION

A.     Mother’s Appeal

       In two issues, Mother argues that the trial court’s judgment, which was

predicated on the jury’s verdict, terminating her parental rights to all four children

should be reversed because the evidence is legally and factually insufficient to support

the trial court’s best interest findings to each child. We disagree.

       1.     Sufficiency Standards and the Holley Factors

       For a trial court to terminate a parent–child relationship, the party seeking

termination must prove two elements by clear and convincing evidence: 1) that the

parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and

2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);

In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). 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.” Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

       In evaluating the evidence for legal sufficiency in parental termination cases, we

determine whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction that the challenged ground for termination was proven. See In re

J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most

favorable to the finding and judgment. Id. We resolve any disputed facts in favor of

the finding if a reasonable factfinder could have done so. Id. We disregard all
                                            24
evidence that a reasonable factfinder could have disbelieved.        Id.     We consider

undisputed evidence even if it is contrary to the finding. Id. That is, we consider

evidence favorable to termination if a reasonable factfinder could, and we disregard

contrary evidence unless a reasonable factfinder could not.        See id.    “A lack of

evidence does not constitute clear and convincing evidence.”               In re E.N.C.,

384 S.W.3d at 808.

      In evaluating the evidence for factual sufficiency in parental termination cases,

we are required to perform “an exacting review of the entire record” in determining

whether the evidence is factually sufficient to support the termination of a parent-

child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the

evidence for factual sufficiency, we give due deference to the factfinder’s findings and

do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006). We determine whether, on the entire record, a factfinder could reasonably

form a firm conviction or belief that the termination of the parent-child relationship

would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2); 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 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.


                                          25
      There is 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). We review the entire

record to determine the child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.

2013). The same evidence may be probative of both the subsection (1) ground and

best interest. Id. at 249; C.H., 89 S.W.3d at 28.

      Nonexclusive factors that the factfinder in a termination case may also use in

determining the best interest of the child include the following: (A) the desires of the

child; (B) the emotional and physical needs of the child now and in the future; (C) the

emotional and physical danger to the child now and in the future; (D) the parental

abilities of the individuals seeking custody; (E) the programs available to assist these

individuals to promote the best interest of the child; (F) the plans for the child by

these individuals or by the agency seeking custody; (G) the stability of the home or

proposed placement; (H) the acts or omissions of the parent which may indicate that

the existing parent-child relationship is not a proper one; and (I) any excuse for the

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976);

see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we

consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.

These factors are not exhaustive, and some listed factors may be inapplicable to some

cases. 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


                                            26
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.

             a.     The Desires of the Children

      With regard to Sally’s and Allen’s desires, Sally was less than two years old at

the time of trial, and Allen was six years old; thus, neither child possessed sufficient

maturity to express an opinion regarding a parental preference, and neither Sally nor

Allen testified at trial. See In re M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010,

no pet.) (“The record contains scant evidence that any of the children possess

sufficient maturity to express an opinion regarding a parental preference.”); L.Z. v.

Tex. Dept. of Family and Protective Servs., No. 03-12-00113-CV, 2012 WL 3629435, at *10

(Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.) (reasoning that a two-year-old

child “was too young to articulate his desires” under the desires-of-the-children

factor). The jury was entitled to find that this factor weighed neither in favor of nor

against termination of Mother’s parental rights to Sally and Allen.

      With regard to Rachel’s and Josh’s desires, both Rachel and Josh testified that

they wished to be returned to Mother and placed in a home setting that included all

four children.    This factor weighs against the jury’s best-interest determination

regarding Rachel and Josh.

             b.     The Emotional and Physical Needs of the Children

      As for the emotional and physical needs of all four children now and in the

future, their basic needs include food, shelter, and clothing; routine medical and dental
                                             27
care; a safe, stimulating, and nurturing home environment; and friendships and

recreational activities appropriate to their age.     In re L.S., No. 02-16-00197-CV,

2016 WL 4699199, at *6 (Tex. App.—Fort Worth Sept. 8, 2016, no pet.) (mem. op.).

Here, Mother, Rachel, and Josh all testified that Mother provided the children with

their basic needs of food, shelter, and clothing. They also testified that Mother

routinely required the children attend school, directed them to do chores, and

encouraged that they behave politely. Rachel specifically said that she had friends

when she was in Mother’s care but that she had difficulty making new friends given

her numerous placements while in the Department’s care. And both Rachel and Josh

testified that the frequent placements had been hard on them.

      In contrast, Bradford testified that Josh had said that when he lived with

Mother there was not enough food. And multiple Department workers testified that

Mother had not demonstrated an ability to provide a safe and stable home for the

children during the pendency of this case. The evidence indicates that when in

Mother’s care, the children had been exposed to drug use, domestic violence, gang

involvement, and Mother’s repeated encounters with police. The jury was entitled to

find that this factor weighed in favor of termination of Mother’s parental rights to all

four children.

             c.     The Emotional and Physical Danger to the Children

      With regard to the emotional and physical danger to the children now and in

the future, the record reveals that significant harm could be inflicted on them given
                                           28
Mother’s persistent drug use, her repeated encounters with police, her multiple

incarcerations and jailing, and her continuous relationships with domestic abusers.

Also, the record reveals that Mother attempted to keep her relationship with Reagan

from the Department, demonstrating that she knew the relationship is inappropriate.

The jury was entitled to find that this factor weighed heavily in favor of termination

of Mother’s parental rights to all four children.

             d.     The Parenting Abilities of Individuals Seeking Custody

      Regarding the parental abilities of the individuals seeking custody of Sally,

Bradford testified that under the foster parents’ supervision, Sally is doing quite well,

she has bonded with her foster parents, and she acts as though they are her parents.

Bradford said that the foster parents desire to adopt Sally and that they had routinely

taken care of her needs. Bradford further said that the foster parents had been

actively engaged during the pendency of this case, including transporting Sally for

visitations and attending most of the court settings. The jury was entitled to find that

this factor weighed in favor of termination of Mother’s parental rights to Sally.

      With regard to the parental abilities of the individuals seeking custody of

Rachel, Josh, and Allen, only Mother and the Department were seeking custody, but

Mother has not shown adequate parental abilities. Indeed, even though Mother is said

to have taught the children to be polite, to be dutiful at school, and to take

responsibilities for chores, multiple Department workers testified that Mother’s

continued drug use, involvement in domestic-abuse relationships, and her inability to
                                            29
maintain a stable living environment indicated that Mother lacked the proper parental

abilities to appropriately care for Rachel, Josh, and Allen. Indeed, even after the

commencement of this case, Mother was arrested for possession of drug

paraphernalia, and she tested positive for illegal drugs multiple times. Bradford and

Henry also both testified that Mother had been dishonest about her drug use and her

continued relationship with Reagan, a person that Mother admittedly has called the

police on several times for domestic-violence issues and the man who is the biological

father of the child Mother was carrying at the time of trial—a pregnancy that Mother

purposely hid from the Department. In contrast, Henry testified that the Department

has services available to assist the children, and the Department has the expertise and

resources to work toward the three children being adopted together. The jury was

entitled to find that this factor weighed in favor of termination of Mother’s parental

rights to all four children.

              e.     Programs Available to Those Seeking Custody

       Regarding programs available to assist those seeking custody of the children,

the record reveals that although Mother completed one course in domestic-violence

counseling, Mother still maintains a relationship with a domestically violent partner.

The record also demonstrates that Mother did not complete the majority of her court-

ordered services.

       As to Sally, the Department put on evidence that she is currently in a stable

foster home that provides for her, that it would facilitate counseling if needed, and
                                            30
that they are potentially willing to allow the four children to see each other after the

trial. These foster parents have already demonstrated a persistent involvement in

bringing Sally to visitations with her siblings, and they have repeatedly attended court

settings regarding this case.

       As to Rachel, Josh, and Allen, Henry testified that although the three children

have not experienced the benefits of programs to assist them given how much they

have moved, she was confident that once Mother’s rights were terminated and the

Department was made PMC, the Department would be able to facilitate the three

children attending counseling and other programs. Further, the Department put on

evidence that both Rachel and Allen need prescription medications that they were not

receiving under Mother’s care. Specifically to Allen, the Department’s current plan is

to leave him in the residential treatment center where he is currently placed because

the treatment center provides advanced medical, counseling, and psychiatric

treatments.   The jury was entitled to find that this factor weighed in favor of

termination of Mother’s parental rights to all four children.

              f.     Plans for the Children
              g.     The Stability of Proposed Placements7

       With regard to the plans for the children and the stability of their proposed

placements, Mother’s plan was simply to move in with her brother with the four

       7
        See In re B.R., 456 S.W.3d 612, 617 (Tex. App.—San Antonio 2015, no pet.)
(analyzing several of the Holley factors together instead of analyzing each factor
separately).

                                              31
children for a short while and then move to Fort Worth from Wichita Falls. Bradford

testified that this concerned him greatly given that Mother never informed the

Department of her moving in with her brother and that Mother admitted that her

brother had previously served time for aggravated assault. The record also indicates

that Mother had most of her encounters with law enforcement while in Fort Worth.

      As to Sally, the only seeming drawback to her current proposed placement is

that she will not be placed in the same home as her siblings. But Sally has never lived

with her siblings. Indeed, she was removed from Mother’s care upon birth because

she was born with cocaine and marijuana in her system. Moreover, Sally’s foster

parents are the only parents Sally has ever lived with, she is bonded with them, and

they have demonstrated that they will actively participate in whatever care Sally needs.

      As to Rachel, Josh, and Allen, as Henry testified, there is no “ideal solution” for

these children. But Henry testified that she believed that once Mother’s rights were

terminated and the Department became PMC to the children, then their odds of

being adopted by the same family would increase.            Henry also said that the

Department could keep the children involved in programs to assist them and that

once their placement became more permanent, then the children would benefit from

consistent counseling. The jury was entitled to find that this factor weighed in favor

of termination of Mother’s parental rights to Sally, and that at worst this factor is

neutral as to Rachel, Josh, and Allen.


                                           32
             h.     Mother’s Acts or Omissions Indicating that the Existing Parent-Child
                    Relationship is Not Proper

      Considering Mother’s acts or omissions that may indicate that the existing

parent-child relationship is not a proper one, the analysis set forth above—which

details Mother’s drug use that continued through the pendency of this case, Mother’s

housing instability, Mother’s continued involvement with domestically abusive

partners, Mother’s frequent encounters with law enforcement, as well as Mother’s

failure to take full advantage of the services that she was offered—reveals that the

existing parent-child relationship between Mother and all four children is not a proper

parent-child relationship. The jury was entitled to find that this factor weighed in

favor of termination of Mother’s parental rights to all four children.

             i.     Any Excuse for the Acts or Omissions of the Parent

      As for any excuse for Mother’s acts or omissions, the jury heard evidence that

Mother lied about her drug use and her relationship with Reagan. Mother presented

no evidence at trial excusing why she repeatedly failed drug tests, failed to take drug

tests, or failed to follow her service plan. The jury was entitled to find that this factor

weighed in favor of termination of Mother’s parental rights to all four children.

      2.     The Evidence is Legally and Factually Sufficient to Support the
             Jury’s Best-Interest Findings

      Viewing all the evidence in the light most favorable to the best-interest findings

and considering the nonexclusive Holley factors, we hold that the jury could have

reasonably formed a firm conviction or belief that termination of the parent-child
                                            33
relationship between Mother and the children was in the children’s best interest, and

we therefore hold the evidence legally sufficient to support the jury’s best-interest

findings. See Tex. Fam. Code Ann. § 161.001(b)(2); Jordan v. Dossey, 325 S.W.3d 700,

733 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding evidence legally

sufficient to support best-interest finding when most of the best-interest factors

weighed in favor of termination); see also In re T.R.M., No. 14-14-00773-CV, 2015 WL

1062171, at *11–12 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, no pet.) (mem.

op.) (holding evidence legally sufficient to support best-interest finding based on

mother’s lack of a safe, stable home environment; noncompliance with services; and

drug use).

      Similarly, reviewing all of the evidence with appropriate deference to the

factfinder, we hold that the jury had sufficient evidence before it that was relevant to

the Holley factors from which it could have reasonably formed a firm conviction or

belief that termination of the parent-child relationship between Mother and the

children was in the children’s best interest, and we therefore hold that the evidence is

factually sufficient to support the jury’s best-interest findings. See Tex. Fam. Code

Ann. § 161.001(b)(2); Jordan, 325 S.W.3d at 733 (holding evidence factually sufficient

to support best-interest finding when most of the best-interest factors weighed in

favor of termination); In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth

2006, no pet.) (“A parent’s drug use, inability to provide a stable home, and failure to


                                          34
comply with [a] family service plan support a finding that termination is in the best

interest of the child.”). We overrule Mother’s first and second issues.

B.    Harry’s Appeal

      In his sole issue, Harry argues that the “trial court erred in allowing the jury’s

decision to terminate [his] parental rights without providing him any meaningful way

to participate in the proceedings therefore violating his Federal and Texas rights to

due process.” Specifically, Harry argues that the trial court erred by not granting him

a bench warrant to allow him to participate in trial or by otherwise allowing him to

participate in some other manner, ostensibly via video or telephonic participation.

Harry’s argument is that the trial court did not appropriately balance the factors to

consider for allowing a bench warrant that are laid out in the Texas Supreme Court’s

decision in In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). We conclude that Harry

failed to carry his burden at trial to show that the trial court erred by denying his

request to be allowed to participate.

      1.     Standard of Review and The Law Regarding Bench Warrants

      We review a trial court’s decision on an inmate’s request for a bench warrant

for an abuse of discretion. See id.; In re A.W., 302 S.W.3d 925, 928 (Tex. App.—

Dallas 2010, no pet.). The test for abuse of discretion is whether the trial court’s

ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal

principles. K–Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).


                                          35
       It is well settled that litigants cannot be denied access to the courts merely

because they are inmates. Z.L.T., 124 S.W.3d at 165. “However, an inmate does not

have an absolute right to appear in person in every court proceeding.” Id.; see also In re

D.D.J., 136 S.W.3d 305, 311 (Tex. App.—Fort Worth 2004, no pet.) (reasoning that

an inmate, whether plaintiff or defendant in a civil action, does not have an automatic

right to appear personally in court). Rather, in determining whether a personal

appearance is warranted, the trial court must balance the prisoner’s right of access to

the courts against the government’s interest in protecting the integrity of the

correctional system. Z.L.T., 124 S.W.3d at 165; Heine v. Tex. Dep’t of Pub. Safety,

92 S.W.3d 642, 649 (Tex. App.—Austin 2002, pet. denied).

       When deciding whether to grant an inmate’s request for a bench warrant, Texas

courts apply the factors articulated by the Seventh Circuit in Stone v. Morris, 546 F.2d

730, 735–36 (7th Cir. 1976). Z.L.T., 124 S.W.3d at 165. These factors include the

costs and inconvenience of transporting the prisoner to the courtroom; the security

risk the prisoner presents to the court and the public; whether the prisoner’s claims

are substantial; whether the matter’s resolution can reasonably be delayed until the

prisoner’s release; whether the prisoner can and will offer admissible, noncumulative

testimony that cannot be effectively presented by deposition, telephone, or some

other means; whether the prisoner’s presence is important in judging his demeanor

and credibility; whether the trial is to the court or a jury; and the prisoner’s probability

of success on the merits. Id.; Heine, 92 S.W.3d at 650. It is the inmate’s burden to
                                            36
show the trial court why his presence is warranted. Z.L.T., 124 S.W.3d at 166; In re

A.W., 302 S.W.3d at 929.

       The trial court does not have an independent duty to inquire into the necessity

of an inmate’s appearance beyond the contents of the bench warrant request. Z.L.T.,

124 S.W.3d at 166; In re A.H.L., 214 S.W.3d 45, 50 (Tex. App.—El Paso 2006, pet.

denied). In Z.L.T., the Texas Supreme Court disagreed with the court of appeals’

holding that the trial court had an independent duty to identify and evaluate, on the

record, the relevant factors before disposing of the father’s motion seeking a bench

warrant. 124 S.W.3d at 166. The court pointed out that, in general, Texas rules place

the burden on litigants to identify with sufficient specificity the grounds for a ruling

they seek. See id. (citing Tex. R Civ. P. 21; Tex. R. App. P. 33.1(a)(1)(A)). The court

reasoned that a litigant’s status as an inmate does not alter that burden. Id. The court

focused on the fact that the trial court had no responsibility to independently inquire

into relevant facts not provided by the moving party, emphasizing that the father’s

request for a bench warrant included no information by which the trial court could

assess the necessity of his appearance. Id. Although the father referenced the relevant

Stone factors in his request, he failed to provide any factual information showing why

his interest in appearing outweighed the impact on the correctional system: “the only

pertinent information contained in the request was that he was located in Rosharon,

Texas, more than 200 miles from the trial court.” Id. The court ultimately held that

the father failed to carry his burden to establish his right to relief and, in light of such
                                            37
failure, the trial court did not abuse its discretion by denying his request for a bench

warrant. Id.

      2.       Application of Law to The Facts in Harry’s Case

      Here, Harry’s request for a bench warrant was far more deficient than the one

in Z.L.T. Like in Z.L.T., where the father failed to provide factual information

showing why his interest in appearing outweighed the impact on the correctional

system, here, Harry provided no other factual information in his request for a bench

warrant other than the fact that he was “presently confined in the Tarrant County Jail

located at 100 N. Lamar St., Fort Worth, Texas” and that the “necessity exists for the

issuance of a bench warrant for [Harry] to be before th[e] Court for the purpose of a

jury trial in which a termination is requested of [Harry’s] parental rights.” Even in his

verbal re-urging8 of his bench warrant prior to trial, all that Harry asserted was that he

“ha[d] the right to be” at trial. But unlike in Z.L.T., where the father in that case

articulated the Stone factors, here, Harry did not mention them in either his written

      8
       The trial court initially granted Harry’s “Application for Bench Warrant,” but
during a pre-trial hearing held the same day trial was scheduled, Harry’s attorney
informed the court that the sheriff’s office was unwilling to release Harry from the
Tarrant County Jail on the bench warrant ostensibly because his bond had been
declared insufficient, he had twice cut off his GPS monitoring device, and he was
currently being held on capital-murder charges. The trial court did, however, allow
Harry’s attorney to admit into evidence a letter from Harry in which Harry stated that
he loved his children, that he had a relationship with them, that he would go to any
lengths to ensure their health and safety, and that he did not want his parental rights
terminated “due to [Mother’s] actions.” See D.D.J., 136 S.W.3d at 314 (discussing
other means of participating in trial when an inmate is disallowed personal
appearance).

                                           38
motion or his oral re-urging of his motion for bench warrant. Thus, like in Z.L.T.,

where the father failed to carry his burden to demonstrate his right to be at trial, here,

Harry failed to carry his burden as well. We reject Harry’s argument that the trial

court failed to weigh the Stone factors appropriately because that was his burden, and

we conclude that the trial court had no independent burden to analyze those factors

for him.9

      Relying on In re Daugherty, 42 S.W.3d 331, 336 (Tex. App.—Texarkana 2001, no

pet.), Harry argues that the trial court still should have allowed him to participate in

the trial through another means, ostensibly through video or teleconference. But

Harry’s reliance on Daugherty is misplaced. In Daugherty, the appellant had argued in a

motion for continuance to the trial court that he be able to utilize “an alternative

dispute resolution by means of a conference call.” But here, in his own verbal motion

for continuance, all Harry asked for was a continuance10 of trial, and he never asked


      9
        Even though the trial court did not have a duty to do so, we do note that the
trial court made several of the Stone factor findings in the record.
      10
         In his brief, Harry does not mention his motion for continuance in his “Issue
Presented.” But in his “Summary of The Argument” section of his brief, Harry states
that the trial court abused its discretion by denying his motion for continuance. Harry
also mentions that the trial court “implicitly” denied his motion for continuance once
in the body of his argument. However, the overall argument that Harry is clearly
making before this court is that the trial court erred by denying his re-urging of his
“Application for Bench Warrant.” To the extent that he might have argued the trial
court abused its discretion by denying his motion for continuance, Harry would not
prevail because he only verbally moved for a continuance without any supporting
affidavit. See In re J.S., No. 02-04-00277-CV, 2005 WL 1693537, at *2 (Tex. App.—
Fort Worth July 21, 2005, no pet.) (mem. op.) (“If a motion for continuance is not
                                             39
that he be allowed to participate in trial via some other form of participation other

than being actually present. He also did not ask for this in his initial request for a

bench warrant. We overrule Harry’s sole issue.

                                  IV. CONCLUSION

      Having overruled both of Mother’s issues and Harry’s sole issue, we affirm the

trial court’s judgment.


                                                      /s/ Dana Womack

                                                      Dana Womack
                                                      Justice

Delivered: November 22, 2019




made in writing and verified, it will be presumed that the trial court did not abuse its
discretion in denying the motion.”); Tex. R. Civ. P. 251 (“[N]or shall any continuance
be granted except for sufficient cause supported by affidavit . . . .”).

                                          40
