                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                 NO. 2-08-014-CV


IN THE INTEREST OF M.M.F., J.J.F.,
AND E.F.

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

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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

                                  I. INTRODUCTION

      Appellant Michael F. appeals the trial court’s judgment terminating his

parental rights to his three children—Matt, John, and Eric. 2         In ten points,

Michael argues that the evidence is factually insufficient to support the trial

court’s endangering environment and endangering conduct findings, that the

evidence is factually insufficient to support the trial court’s best interest finding,



      1
          … See Tex. R. App. P. 47.4.
      2
       … Pursuant to Texas Rule of Appellate Procedure 9.8(b)(2), we use
aliases for the names of the children.
that the trial court abused its discretion by denying his motion for continuance,

that the trial court committed reversible error when it admitted photographs

without proper predicate, and that section 263.405 of the Texas Family Code

violates the Due Process Clause, the Equal Protection Clause, and the

separation of powers doctrine. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Melisa and Michael are the biological parents of Matt, John, and Eric. At

the time of trial, Matt was four, Molly was three,3 John was two, and Eric was

one and a half. Because Melisa did not perfect an appeal from the judgment

terminating her parental rights, we limit our discussion of the facts to those that

are pertinent to Michael’s appeal of the termination of his parental rights.

      A.    Previous CPS History

      On July 9, 2003, CPS received a referral alleging physical neglect and

physical abuse of Matt by Melisa because she was bipolar and was not taking

her medication. CPS gave the case a disposition of “reason to believe” and

instituted a safety plan, which Michael signed, stating that Melisa would have

no unsupervised contact with the child.


      3
       … Molly’s father was Kevin H., and he signed an affidavit relinquishing
his parental rights to Molly. Molly is not Michael’s biological child, so he is not
asserting any rights to her. However, because she was in the home, we
include her information when it is relevant.

                                        2
      The next referral came in on December 24, 2003, and involved allegations

of physical neglect and medical neglect. Michael and Matt were staying at the

Salvation Army, and Michael was not cooperative with the program; he

appeared volatile and unstable. Matt had an open lesion on his left ankle; hard,

cracked skin over his body; and a distended abdomen. CPS ruled out that case.

      On May 23, 2005, a referral came in for physical neglect and neglectful

supervision of Matt and John by Melisa. The referral came in after Melisa gave

birth to John because there was a concern regarding her ability to properly care

for him due to her diagnosis of bipolar disorder and her inclination not to take

her medication. CPS ruled out that case but left it open for services to be

provided through Catholic Charities.

      On February 6, 2006, a referral came in for physical neglect of Matt,

Molly, and John by Michael and Melisa.        The allegations included a dirty

kitchen, dirty clothes throughout the home, and John was yellow and had his

hands bound with a piece of rag, possibly to keep him from scratching his skin.

All three children were seen at Cook Children’s Medical Center. Molly and Matt

had no problems. John, however, had a skin condition, and his weight was just

below the fifth percentile. All three children were sent home with Michael and

Melisa, along with a safety plan. CPS ruled the case reason to believe for

medical neglect and ruled out the allegations of physical neglect.

                                       3
      Even though a case was opened in May 2006 for family based safety

services, the Department went a number of months without seeing the children

because Michael, Melisa, or both would not allow anyone from the Department

to see any of the children. Because Michael and Melisa were not cooperative

with CPS and would not allow family, friends, 4 or professionals to enter their

home to see their children, the court signed an order providing services for the

family on January 30, 2007.

      B.    The February 1, 2007 Psych Call

      Two days later, Shawn Burton, a paramedic with MedStar, received a

psych call.5 He responded to the call and found Melisa 6 in the kitchen working

on family scrapbooks. He noticed a child, Eric, in a car seat or carrier on the

kitchen counter and three children in the living room. When Burton and another

paramedic removed the layers of blankets that were on Eric, they saw that he



      4
       … During the course of CPS’s investigation, Melisa’s mom said that
Michael would not allow her to see Eric, and two people who were interviewed
who were close to Michael and Melisa admitted that they had not been
permitted to see Eric. The person who reported the family to CPS said that Eric
was kept hidden in the bedroom.
      5
       … A neighbor had initiated the call after attempting to check on the
children and being turned away by Melisa.
      6
       … Although this person is referred to at various points in the record as
“Maria,” the evidence indicates that this is a mistake and that the correct name
is Melisa.

                                       4
was severely malnourished, that he had almost no musculature, that he was

very dehydrated, that his eyes were sunken in, that he was covered in eczema,

and that his arms had been wrapped behind his back.

      The paramedics questioned Melisa about why Eric’s arms were secured

behind his back, and she said that it was to keep him from scratching. She also

told them that Eric had eaten five times that day, and then she took an almost-

empty box of dry cereal out of the refrigerator to make her point. However,

they did not find anything that would confirm that Eric had eaten during the

day, and Melisa was unable to show them any bottles anywhere in the house.

They found no food in the cabinets and little to no food in the refrigerator.

Burton checked on the three other children, who were all under the age of four,

and noted that they were well fed and were playing in the living room.

      They explained to Melisa the seriousness of Eric’s condition and that they

were going to take him to the hospital. They also notified the police to come

interview Melisa. Melisa was not cooperative and did not want them to take

Eric. She told them that she did not think it was a good idea and that she

wanted her husband to make the decision.          So they called Michael and

explained that they needed to take Eric to the hospital.      He, too, was not

cooperative at first and told them that he would take Eric to the doctor the next




                                       5
day. They explained that due to the seriousness of Eric’s condition, they “were

going to have to take him anyways.” Michael finally agreed.

      Burton’s partner took Eric to the ambulance and began working on him

while they waited for the police to arrive and look after the children because

Melisa was agitated and not alert to what was going on. The neighbors told

him that Melisa does not take her medicine. When he asked Melisa whether

she had taken her medicine, she would not answer.

      C.    Eric’s Hospitalization

      Dr. Jayme Coffman, who was qualified as an expert on child abuse

because she is a pediatrician and medical director of the Care Team (the child

abuse program at Cook Children’s Medical Center), testified that she came into

contact with Eric on February 2, 2007, when she was asked to consult on his

case. Eric had been admitted to the pediatric intensive care unit the day before

and was severely malnourished.

      Dr. Coffman testified that Eric, who was seven and a half months old,

weighed 3.8 kilograms or a little over 8 pounds; had no body fat; had a sodium

level of 115, which is incompatible with life; and had “severe, severe eczema.”

Eric was “way off the growth charts, not only on weight, but on length and

head size as well” and had been starved long enough for it to affect his length

and brain growth. Dr. Coffman testified that this was not an overnight process

                                       6
that caused Eric’s body to quit growing and his brain to atrophy. She further

testified that Eric did not have a preexisting medical condition that caused this,

that his condition was the result of someone not feeding him, and that his

condition was obvious enough that it could be observed with the naked eye.

Dr. Coffman said that Eric presented with “the worst case of malnourishment

that [she had] seen that survived” and determined that his condition was abuse

due to severe malnutrition and starvation.

      Dr. Coffman said that Eric was in the hospital a couple of weeks because

“when they’re that malnourished, it’s difficult to refeed them. Their gut is not

used to the food, and so it’s difficult to get them to eat again, basically, and to

absorb the nutrition.” So they reintroduced food slowly and diluted it so that

his intestines could learn to deal with normal nutrition.

      Dr. Coffman testified that at the time of trial, Eric was a typical kid who

may have some special educational needs. Her main concern for Eric, based on

his brain atrophy, is future learning difficulties or developmental delays. She

said that he will need lots of developmental assistance through early childhood

and Head Start, but even with that, she was not sure that he could reach the

potential that he would have had if he had not been starved. He does not

require special living circumstances, only someone who will keep up with




                                        7
appointments and be aggressive in following through to make sure that Eric

gets his educational needs met.

      Dr. Coffman looked at previous emergency room visits during which one

of   Eric’s   older   siblings—John—was    diagnosed   as   “failure   to   thrive

[malnourished] with eczema” and noted that Eric’s medical records stated that

Eric’s mother and father were his primary caregivers. Dr. Coffman therefore felt

that it was appropriate that CPS remove the children. Dr. Coffman said that

she would have concerns if Eric was returned to the caregivers who had

allowed him to get into the state he was in.

      D.      The Department’s Investigation

      Stephanie Nick, formerly an investigator with the Department, testified

that on February 1, 2007, the Department received a referral that alleged

medical neglect and physical neglect of Eric by both of his parents. She met

with law enforcement and went to the residence, where she met Melisa and her

three older children. When Nick arrived at the home, she noticed signs of

violence, including that the screen on the front porch had been smashed, that

the living room had a broken window, and that there were holes in the walls

throughout the home, but Melisa would not permit her to take any photographs.




                                       8
      Melisa told Nick that she fed Eric several times a day, that she breastfed

him, that he ate Enfamil with iron, and that he also ate baby cereal and jars of

baby food. Melisa showed Nick the box of Beachnut baby cereal, a couple of

containers of baby food, and an unopened, three-pack of bottles.

      Nick also observed the older children while she was at the home and

noted that Matt and John exhibited developmental delays. John was in the

corner and not playing with the others, and Matt was three and a half and was

not potty-trained and said only the word “car.” Nick removed the children from

the home later that day because Eric, who was seven and a half months old

and weighed only eight and a half pounds, had been transported to the hospital.

This indicated to Nick that Eric was not being fed appropriately, so she ruled

the case as reason to believe for neglectful supervision of Eric, John, Molly, and

Matt by both parents and reason to believe for physical neglect and medical

neglect of Eric by both parents.

      Nick went to the hospital on February 2 to see Eric. At that time, his dry,

flaky skin was hanging from his bones. 7       She held him during his diaper

changes, and she could see the lymph nodes in his groin. He appeared to be

very uncomfortable.


      7
       … The record included photographs from February 1, 2007, showing
Eric’s malnourished state.

                                        9
      Nick interviewed Michael on February 2, and he said that Melisa has a

mental condition and a history of not taking her medications. He said that her

medicines were kept in the cabinet and that he “kind of forgot about them.”

He said that Melisa was responsible for the children during the day while he

worked and that he provides care to Eric after he returns home from work in the

evenings, during the night, and on the weekends. Michael said that he would

feed Eric several times during the evening hours and that he was eating up to

eight ounces at a time.8 Nick asked both Michael and Melisa about how Eric

got into the condition he was found in, and both were adamant that they had

been feeding him on a regular basis.

      Michael told Nick that he wanted a home study performed on Melisa’s

parents. When Nick met with Melisa’s dad, he told Nick that he suspected

domestic violence between Melisa and Michael and that an altercation had

occurred between Michael and Melisa’s mom. Nick also learned during the

interview with Melisa’s dad that he had been in the home approximately twice

a week to pick up Molly. Melisa’s dad said that when he had seen Eric the last

weekend in January, he was covered in blankets, but his face was thin.

Melisa’s dad told Nick that he had seen both Michael and Melisa feed Eric cereal


      8
       … The medical records also stated that Michael reported that he fed Eric
the previous night and that he took the whole bottle.

                                       10
and baby food. However, it concerned Nick that Melisa’s dad knew of his

daughter’s mental health issues and her propensity to not take her medicine,

that he was in the home on a regular basis, and that he did not report Eric’s

looking thin.

      During Nick’s investigation, she discovered that this family had an

extensive history with CPS. She requested a criminal history, and what she

learned about Michael factored into the reasons for the removal of the children. 9

Nick felt that removal of the children was appropriate because the family had

not been cooperative in the past and because she had very serious concerns

about the parents’ present ability to care for and protect their children. The

Department felt that removal of all four children from Michael and Melisa was

in the children’s best interest.

      E.    The Caseworker’s Observations

      Christie Weaver, the ongoing caseworker for the children in this case,

testified that she met with Melisa. During the meeting, Melisa threatened to

beat her up, and the children behaved timidly around her, though Weaver never

saw her strike at them.




      9
      … Nick said that a criminal case is being investigated but that charges
had not been filed at the time of the termination trial.

                                       11
      Weaver also met with Michael, and gave him a service plan.             He

completed his psychological evaluation, which diagnosed him as having an

adjustment disorder. The psychological evaluation recommended that Michael

enroll in individual supportive counseling for adjustment issues, that he

participate in parenting class, that he enroll in GED classes, and that his

probation officer be contacted for treatment plan purposes.10      Michael did

subsequently obtain a certificate for completing parenting classes. He failed,

however, to complete his service plan because he did not undergo a psychiatric

evaluation, participate in individual and family counseling, or submit to a drug

test.11

      Michael visited regularly with the children and missed only three or four

visits. Weaver noted that there were several occasions when Michael did not

engage the children and when he would read a magazine during the visit. At

one visit, he pushed John away and told him to go bother someone else.

During a visit in July 2007, he threatened to spank John and reached down as



      10
        … Weaver testified that her understanding was that Michael was on
probation during this case for an aggravated assault charge from a prior year.
However, the record reflected that Michael was placed on deferred adjudication
for criminal mischief and that there was a plea in bar on aggravated assault.
      11
       … On the day that Weaver asked Michael to take a drug test, she had
concerns because his behavior was considerably different than it had been in
the past, and she wanted to rule out substance abuse.

                                      12
though he were taking off his belt. Later during the visit, Michael became

agitated when Matt and John started throwing balls at him, and he took their

hands and squeezed them. Weaver described the rest of the visit as follows:

      And then after -- after about 30 minutes in the visit, [Michael] took
      a toy away from [Matt] and [Matt] teased [Michael] saying, “I got
      the toy. I got the toy.” And [Michael] took the toy away from him
      and he glared at [Matt] and [Matt] yelled at his father three times
      to shut up, each time getting louder.

             And [John] said something to [Matt] and [Michael] said, “You
      tell him, Son.” And [Matt] then looked at his father and called him
      a fucker. And at that point [Michael] reached out and grabbed
      [Matt] by the shirt and jerked him towards him. And at that point
      I interrupted the visit and asked [Michael] to leave.

After that visit, CPS took precautions to have two observers and to have a male

caseworker in the hallway or in the adjacent rooms every time that Michael

visited. Additionally, after a bonding assessment was completed, the visits

were reduced to once a month due to Michael’s behaviors, the chaos that they

created with the children, and the after-effects on the children following visits

with Michael.

      Currently, Matt and Molly are together in a foster home, and John and

Eric are together in another foster home. Both Molly and Matt were nonverbal

when they came into care, and now they are able to communicate effectively.

Molly has been potty-trained, and Matt is attending Head Start, where he is




                                       13
learning his ABCs. The one concern noted in Matt’s service plan was that he

had shown possible signs of sexual abuse.

      Eric and John are progressing more slowly. Eric went from a little over

eight pounds in February 2007 to twenty-four pounds at his birthday in June

2007.    Eric is in occupational therapy and works with Early Childhood

Intervention. Eric is seeing a doctor regularly to relearn how to use the muscles

that allow him to swallow. Due to Eric’s swallowing problems, his food has to

be prepared so that he will not aspirate or choke on what he eats or drinks.

      Like Eric, John has shown signs of severe neglect. Generally, John is

fairly quiet and reserved. However, he can be extremely aggressive and violent

and has directed that behavior toward Eric and other children. Weaver testified

that, in her opinion, John has serious emotional problems.         John has been

diagnosed with reactive attachment disorder, which is a life-long disorder, and

he is in therapy with a therapist at the University of North Texas. John was

also diagnosed with post-traumatic stress disorder and struggles with

attachment issues in that he attaches to inappropriate caregivers, such as

people whom he has been with for only fifteen or twenty minutes.

      W eaver’s concerns for the scenario of returning the children to their

parents are that the children will be neglected, that Eric will not be fed, that the

children will not be cared for appropriately, and that they will again witness

                                        14
domestic violence in the home. Weaver therefore recommended that the trial

court terminate the parental rights of Michael and Melisa and testified that

termination was in the children’s best interest. Weaver believed it would be

good for all four children to be placed together, but the Department’s current

plan was to place two of the children with one home and the other two children

in another home. Weaver asked that the trial court name the Department as

the managing conservator of the children. Weaver said that the permanency

plan for the children is for them to be adopted.

      F.    CASA’s Observations and Recommendation

      Teresa Schultz, the court appointed special advocate for the children, said

that Michael’s initial visits with Molly, Matt, and John “didn’t go well at all.”

It appeared that Michael did not know how to interact with the children, so they

each stayed by themselves. She described the visits as “torture” and felt that

the children suffered when they spent time with Michael because they showed

signs of emotional distress. Schultz said that Michael’s behavior at the visits

improved as time went on. He seemed to apply what he had learned in his

parenting classes and seemed to interact better with his children.




                                       15
      Schultz also observed the first visit that Eric was taken to 12 and said that

Eric handled it well after some initial timidity.     During that visit, Michael

interacted with all of the children and gave Eric a bottle and sang or read to

him. Michael changed one of Eric’s dirty diapers during that visit and also made

the caseworkers aware of Molly’s issues in going to the restroom.

      Schultz recommended terminating the parental rights of all three parents

in this case. Schultz said that Molly and Matt are bonded together and that

John and Eric are bonded together. Schultz thinks that all four children should

be together, but if they cannot be together, the current groupings should be

maintained.

      G.      The Ad Litem’s Recommendation

      Sylvia Andrews, the ad litem for the children, recommended that the trial

court terminate the parental rights of all three parents, that Melisa’s parents be

named temporary managing conservators of Molly and Matt, and that John and

Eric remain in the foster home where they are currently residing.




      12
       … Eric was not allowed to participate in visitations until he was healthy
enough to do so and until his parents started participating in their service plans.

                                        16
      H.    Trial Court’s Disposition

      After hearing the above evidence and reviewing the medical records from

Cook Children’s Hospital and MedStar, as well as Melisa’s records from John

PeterSmith Hospital, the trial court stated on the record:

      With respect to the evidence of [Michael,] he had some -- had some
      culpability in this matter. We have the testimony of Shawn Burton
      from MedStar who says when he entered the house that one of the
      things that they did was call [Michael] at work. He objected to the
      removal of the child by MedStar EMTs.

            We have the testimony of the caseworker where [Michael]
      told her that he provided the care for [Eric] every night when he got
      off work and [Eric] drank eight ounces of formula and he had given
      him eight ounces just the night before.

             So the long and the short of it is there is every indication the
      -- and -- and we have the evidence that the grandparents had -- had
      been cut out of any real relationship because of [Michael]. There
      had been an altercation with [Michael]. Certainly I think that his
      contact has been substantial.

            He is the one who went to the hospital when [Eric] was
      hospitalized. He says that the mother has a history of not taking
      her meds. And we have the history in the case of -- there is a long
      CPS involvement with this -- with this family going all the way back
      to the -- to [Matt’s] birth.

The trial court thus found by clear and convincing evidence that Michael had

knowingly placed or knowingly allowed his children to remain in conditions or

surroundings that endangered the physical or emotional well-being of the

children, that he had engaged in conduct or knowingly placed the children with


                                        17
persons who engaged in conduct that endangered the physical or emotional

well-being of the children, and that termination of the parent-child relationship

was in the children’s best interest. The trial court therefore terminated the

parent-child relationship between Michael and Matt, John, and Eric.13 This

appeal followed.

                        III. C ONSTITUTIONAL C HALLENGES

      In his sixth through tenth points, which we will address first, Michael

argues that section 263.405 of the Texas Family Code violates his right to due

process and equal protection and that the statutory scheme contained in

section 263.405 violates the separation of powers provision of the Texas

constitution. Because the trial court granted Michael’s motion to extend the

time for filing his statement of points listing the issues raised on appeal, we

need not consider these constitutional challenges. See In re T.H., No. 02-07-

00464-CV, 2008 WL 4831374, at *9 (Tex. App.—Fort Worth Nov. 6, 2008,

no pet. h.) (mem. op.); In re O.L.A., No. 02-06-00321-CV, 2008 WL 706335,




      13
        … The trial court appointed CPS as managing conservator of all the
children, appointed Melisa’s parents possessory conservators of Matt and
Molly, and found that John and Eric are special needs children who would
benefit from remaining in their current placement and possible adoption.

                                       18
at *8 (Tex. App.—Fort Worth Mar. 13, 2008, no pet.) (mem. op.). 1 4            We

overrule Michael’s sixth through tenth points.

                 IV. B URDEN OF P ROOF AND S TANDARD OF R EVIEW

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

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

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

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

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

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

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

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

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

Department 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




      14
         … We have already ruled that family code section 263.405(i) is void as
a violation of the separation of powers provision of the Texas constitution. See
In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort Worth 2008, pet. denied).

                                           19
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 Department must establish one ground

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

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

Supp. 2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must

be established; termination may not be based solely on the best interest of the

child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd,

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

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

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

clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); In

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

between the preponderance standard of ordinary civil proceedings and the

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

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

2006, pet. denied). It is defined as the “measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth

                                        20
of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007

(Vernon 2002).

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

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

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

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

conviction or belief that the parent violated section 161.001(1)(D) or (E) and

that the termination of the parent’s parental rights would be in the best interest

of the child.    C.H., 89 S.W.3d at 28.      If, in light of the entire record, the

disputed evidence that a reasonable factfinder could not have credited in favor

of the finding is so significant that a factfinder could not reasonably have

formed a firm belief or conviction in the truth of its finding, then the evidence

is factually insufficient. H.R.M., 209 S.W.3d at 108.

                V. F ACTUALLY S UFFICIENT E VIDENCE OF E NDANGERMENT

      In his first and second points, Michael argues that the evidence is

factually insufficient to establish that he endangered his children.           The

Department argues that there is factually sufficient evidence to support the trial

court’s endangerment findings under subsections (D) and (E) of section

161.001(1) of the family code.




                                        21
      Endangerment means to expose to loss or injury, to jeopardize. Boyd,

727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort

Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).

To prove endangerment under subsection (D), the Department had to prove that

Michael (1) knowingly (2) placed or allowed his children to remain (3) in

conditions or surroundings that endangered their physical or emotional

well-being. See Tex. Fam. Code Ann. § 161.001(1)(D). Under subsection (E),

the relevant inquiry is whether evidence exists that the endangerment of the

children’s physical well-being was the direct result of Michael’s conduct,

including acts, omissions, or failures to act. See J.T.G., 121 S.W.3d at 125;

Tex. Fam. Code Ann. § 161.001(1)(E).          Additionally, termination under

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

voluntary, deliberate, and conscious course of conduct by the parent is

required.   J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code                 Ann.

§ 161.001(1)(E). However, it is not necessary that the parent’s conduct be

directed at the children or that the children actually suffer injury. Boyd, 727

S.W.2d at 533; J.T.G., 121 S.W.3d at 125.         The specific danger to the

children’s well-being may be inferred from parental misconduct standing alone.

Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort

Worth 2004, pet. denied). To determine whether termination is necessary,

                                      22
courts may look to parental conduct occurring both before and after the

children’s birth.   In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth

2001, no pet.).

      Stability and permanence are paramount in the upbringing of children.

See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.

denied). A factfinder may infer from past conduct endangering the well-being

of the children that similar conduct will recur if the children are returned to the

parent. See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet.

denied), disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H.,

89 S.W.3d at 17. Evidence of criminal conduct, convictions, and imprisonment

prior to the birth of a child will support a finding that a parent engaged in a

course of conduct that endangered the child’s well-being. J.T.G., 121 S.W.3d

at 133.

      The record contains substantial evidence of subsection (D) environmental

endangerment and subsection (E) course of conduct endangerment to the

physical or emotional well-being of the children.         Because the evidence

concerning these two statutory grounds for termination is interrelated, we

consolidate our examination of it. See J.T.G., 121 S.W.3d at 126.

      The record demonstrates that Michael allowed Melisa to parent the

children during the day even though he was aware that she did not take her

                                        23
bipolar medications.   The record also demonstrates that Michael prevented

family, friends, and professionals from seeing Eric and initially denied MedStar

permission to take Eric to the hospital.    Michael’s testimony that he was

feeding Eric multiple times in the evenings and that he took a full bottle was

contradicted by the medical records, testimony, and photographs that revealed

Eric’s malnourished body. And medical records showed that John was also

suffering from malnourishment.

      The record also reveals that there were domestic violence issues between

Michael and Melisa, which the children witnessed. The record further reveals

that Michael had a criminal history that included a conviction for criminal

mischief. And at one point during the case, Matt’s service plan stated that he

showed signs of possible sexual abuse.

      W e have carefully reviewed the entire record. Giving due deference to

the trial court’s findings, we hold that a reasonable trier of fact could have

formed a firm belief or conviction that Michael knowingly placed Matt, John,

and Eric in conditions and engaged in conduct that endangered the children’s

physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D),

(E); J.F.C., 96 S.W.3d at 265–66; C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d

at 124; In re S.G.S., 130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no

pet.) (holding that evidence was legally and factually sufficient to support

                                      24
endangerment finding when evidence showed that mother and father failed to

feed one child adequate nutrition; jury could infer that actual harm to one child

meant that the physical and emotional well-being of other children in same

house were also jeopardized); see also In re M.R., 243 S.W.3d 807, 819 (Tex.

App.—Fort Worth 2007, no pet.) (holding that record contained legally and

factually sufficient evidence of both endangerment grounds when, among other

things, it showed that mother exposed children to domestic violence and

refused to participate in her CPS service plan). Accordingly, we hold that the

evidence is factually sufficient to support the trial court’s findings on

environmental endangerment and course of conduct endangerment.                  We

overrule Michael’s first and second points.

             VI. T ERMINATION W AS IN T HE C HILDREN’S B EST INTEREST

      In his third point, Michael argues that the evidence is factually insufficient

to support the trial court’s finding that termination of his parental rights was in

the children’s best interest.    The Department argues that the evidence is

factually sufficient to support the trial court’s “best interest” finding.

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

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

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

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

                                        25
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).

      These factors are not exhaustive; some listed factors may be inapplicable

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

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

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

finding. Id.

      Regarding the first factor, the children did not testify at trial. However,

the evidence demonstrated that there were very serious concerns about

                                        26
Michael’s ability to parent and that the children did not want to leave their

foster parents to attend visits with Michael. The record also revealed that the

children are attached to and bonded with their foster parents.

      Regarding the second factor—the children’s present and future physical

and emotional needs—Dr. Coffman testified that Eric will need lots of

developmental assistance through early childhood and Head Start. Weaver said

that Eric is seeing a doctor regularly to relearn how to use the muscles that

allow him to swallow and that due to Eric’s swallowing problems, his food has

to be prepared so that he will not aspirate or choke on what he eats or drinks.

John has been diagnosed with reactive attachment disorder, which is a life-long

disorder, and he is in therapy with a therapist at the University of North Texas.

John was also diagnosed with post-traumatic stress disorder and struggles with

attachment issues in that he attaches to inappropriate caregivers, such as

people whom he has been with for only fifteen or twenty minutes. Matt is

attending Head Start, where he is learning his ABCs.

      The environmental endangerment and endangering course of conduct

discussion above addressed the third, fourth, and eighth factors—the present

and future physical and emotional dangers to the children, as well as Michael’s

parenting abilities, or lack thereof, and his acts and omissions.




                                       27
      Concerning the fifth factor, Michael attempted to better himself by

attending parenting classes.    However, he did not take advantage of other

services that were offered to him.

      Regarding the parties’ plans for the children—the sixth factor—Michael

did not list his plans for the children, though it can be presumed from the filing

of his appellate brief that he wanted the children returned to him. Weaver, the

ongoing case worker, testified that the Department’s plan is for the children to

be adopted. Schultz, the CASA worker, testified that all four children should

be together, but if they cannot be together, the current groupings should be

maintained. Sylvia Andrews, the ad litem for the children, recommended that

Melisa’s parents be named temporary managing conservators of Molly and Matt

and that John and Eric remain in the foster home where they are currently

residing.

      Regarding the stability of the proposed placement—the              seventh

factor—the evidence demonstrated that terminating Michael’s parental rights

would allow CPS to pursue adoptive placements for the children, which would

allow them to have the stability lacking in their current situation.

      Finally, concerning the ninth factor—any excuse for the parents’ acts or

omissions—Michael was adamant that he had been feeding Eric and did not

accept any blame for the condition in which Eric was found.

                                       28
      Giving due consideration to evidence that the factfinder could have

reasonably found to be clear and convincing, and based on our review of the

entire record, we hold that a reasonable trier of fact could have formed a firm

belief or conviction that the termination of Michael’s parental rights would be

in the children’s best interest. See S.G.S., 130 S.W.3d at 239–41 (holding

that clear and convincing evidence existed that termination of mother’s and

father’s parental rights was in children’s best interest when, among other

factors, children suffered severe health problems and significant developmental

delays while in their care and parents did not utilize services to maintain a

stable living environment); see also In re J.L.W., No. 02-08-00179-CV, 2008

WL 4937970, at *9–10 (Tex. App.—Fort Worth Nov. 20, 2008, no pet. h.)

(mem. op.) (holding that evidence was legally and factually sufficient to support

trial court’s best interest finding when evidence revealed that returning child to

mother would risk child’s emotional and physical well-being because of couple’s

past history of domestic abuse and because of mother’s inability to care for any

of her four children).   Accordingly, we hold that the evidence is factually

sufficient to support the trial court’s best-interest finding.      We overrule

Michael’s third point.




                                       29
                 VII. M OTION FOR C ONTINUANCE P ROPERLY D ENIED

       At the beginning of the termination trial on December 17, 2007, the trial

court heard Michael’s motion for continuance, which he had filed that same

day.   Michael argued that a continuance was needed because he had a

psychiatric evaluation scheduled for December 19. The Department responded

by reminding the trial court that there had been a hearing on October 1, 2007,

which addressed the issue of Michael’s getting a psychiatric evaluation, and

that he had failed to comply with the trial court’s order giving him thirty days

to undergo the evaluation. The trial court thereafter denied Michael’s motion

for continuance.

       In his fourth point, Michael argues that the trial court abused its discretion

by denying his motion for continuance, which he sought in order to obtain a

psychiatric evaluation to comply with his family reunification plan.             The

Department responds that the trial court properly overruled Michael’s 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). To determine whether a trial

court abused its discretion, we must decide whether it acted without reference

to any guiding rules or principles; in other words, whether the act was arbitrary

                                         30
or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Whether the trial

court grants or denies a motion for continuance is within its sound discretion.

See BMC Software, 83 S.W.3d at 800; Villegas v. Carter, 711 S.W.2d 624,

626 (Tex. 1986); see also In re E.L.T., 93 S.W.3d 372, 374 (Tex.

App.—Houston [14th Dist.] 2002, no pet.). The trial court’s action in denying

a continuance will not be disturbed unless the record discloses a clear abuse of

discretion. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988).

      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. If appellant provides no record of the evidence presented to the

trial court, we must presume that the evidence supports the ruling. See Wil-

Roye Inv. Co. II v. Wash. Mut. Bank, F.A., 142 S.W.3d 393, 401 (Tex.

App.—El Paso 2004, no pet.); In re Guardianship of Berry, 105 S.W.3d 665,

667 (Tex. App.—Beaumont 2003, no pet.).

      Here, the record demonstrates that the trial court’s October 1, 2007 order

required Michael to “attend, participate in, and follow the recommendations of

a psychiatric evaluation.” The trial court further ordered that “the psychiatric

evaluation for MICHAEL [F.] be arranged by and paid for by the Department of

Family and Protective Services within the next thirty (30) days.” More than

                                      31
thirty days elapsed during which Michael failed to comply with the trial court’s

order. Although the Department argues in its brief that CPS had previously

arranged the required psychiatric exam for Michael on October 1, 2007, and

that he missed the appointment, the Department does not point to any place

in the record supporting its argument. At the hearing, the Department stated

only that Michael had failed to undergo a psychiatric evaluation “in compliance

with the Court order within 30 days, which the Department had arranged for

him to do.” Michael did not dispute this, nor did he put on evidence showing

why he had been unable to comply with this provision of his service plan prior

to the termination trial. As Michael notes in his brief to this court, “The record,

however, is absolutely silent on the reason for the delay in securing the

psychiatric evaluation.”

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

discretion by denying Michael’s continuance for more time to complete his

service plan. See D.B., No. 02-07-00428-CV, 2008 WL 2553343, at *6 (Tex.

App.—Fort Worth June 26, 2008, no pet.) (mem. op.) (holding that trial court

did not abuse its discretion by denying appellant’s motion for continuance when

he had four months’ notice of trial setting but waited until day of termination

trial to file motion for continuance and did not claim that he was unprepared for

trial); see also In re S.W., No. 02-08-00164-CV, 2008 WL 4531711, at *3

                                        32
(Tex. App.—Fort Worth Oct. 9, 2008, no pet.) (mem. op.) (holding that when

parent chooses to travel out of state and neglect her 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 a continuance).

       Moreover, we note that even if Michael had been granted more time to

complete his service plan, he cannot demonstrate that the result of the

termination trial would have changed because his parental rights were not

terminated for failing to complete his service plan but instead were terminated

for   other   statutory   reasons.   See    generally   Tex.   Fam.   Code   Ann.

§ 161.001(1)(O) (listing as a separate ground, not linked to endangerment, the

failure 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). For this reason as well, the trial court did not abuse its discretion by

denying Michael’s motion for continuance. Cf. 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.) (mem. op.) (stating that given counsel for the Department’s representation

that he was proceeding on “D and E” grounds, not on the added mental health

grounds, no abuse of discretion occurred when the trial court denied appellant’s

motion for continuance).




                                       33
      Furthermore, Michael’s written motion failed to comply with rule 251

because it was not supported by verification or affidavit, and the trial court

could have properly denied the motion on this ground as well. See Tex. R. Civ.

P. 251; In re J.A., No. 02-05-00454-CV, 2006 WL 3114434, at *9 (Tex.

App.—Fort Worth Nov. 2, 2006, no pet.) (mem. op.) (holding that trial court did

not abuse its discretion by denying appellant’s motion for continuance because

appellant did not comply with rule 251 when he requested a continuance

without a supporting affidavit). We therefore overrule Michael’s fourth point.

                    VIII. P HOTOGRAPHS P ROPERLY A DMITTED

      In his fifth point, Michael contends that the trial court committed

reversible error by admitting exhibits containing photographs for which the

proper evidentiary predicate had not been laid. Specifically, Michael contends

that the sponsoring witness, through whom the photographs were admitted,

failed to address whether the photographs had been altered. The Department

responds that the exhibits were properly admitted.

      The Department attempted to introduce into evidence exhibits 6 through

15 through Stephanie Nick, a former investigator with the Department. Nick

testified that the exhibits contained photographs of Eric that had been taken on

February 1, 2007, and that the photographs fairly and accurately portrayed

what he looked like when she saw him on February 2, 2007. Michael objected

                                      34
on the basis that the proper predicate had not been established, and the trial

court allowed the Department to go back through its predicate again. The

Department complied, and Michael reiterated his objection.     The trial court

sustained Michael’s objection. The Department thereafter questioned Nick in

more detail:

           Q. (BY MS. MILOUD) Ms. Nick, I’m again handing you
      what’s been marked as Petitioner’s Exhibits 6 through 15.

               A. Uh-huh.

           Q. You’re familiar with how [Eric] looked on the 2nd day of
      February 2007; is that correct?

               A. Yes, ma’am.

            Q. And do these pictures reflect what he looked like on that
      date to you?

               A. Yes, ma’am.

            Q. Okay. And they were taken on the 1st, but he looked –
      he was in this condition when you saw him on the 2nd; is that
      correct?

               A. Yes, ma’am.

            Q. Okay. To your knowledge, you have had these pictures
      in your custody; is that correct?

               A. Yes. They have been in my case file.

            Q. Okay. And do you know if they have been altered in any
      way to not clearly, accurately reflect what you saw on that day in
      the hospital?

                                       35
            A. I don’t believe they have been altered, no.

            Q. Okay. So this is what he looked like on that date; is that
      correct?

            A. Yes, ma’am.

           Q. And you can identify every one, 6 through 15, as the
      same child and what he looked like on that date?

            A. Yes, ma’am.

Michael thereafter took Nick on voir dire and asked whether she was present

when the photographs were taken, whether she was present when they were

developed, whether she knew the name of the person who took them, and

whether she really knew whether they had been altered. At the conclusion of

the voir dire, Michael objected again that the proper predicate had not been

established and that there was a break in the chain of custody.                The

Department responded that the chain of custody did not need to be established

in a civil suit such as this one and that the rules of evidence do not require that

the photographer be called in order to admit the pictures.         The trial court

overruled the objections and admitted Petitioner’s Exhibits 6 through 15.

Michael made similar objections when the Department attempted to admit

exhibits 16 and 17, which were photographs of Eric on his first birthday. The

trial court admitted the photographs over Michael’s objections.




                                        36
       The admission or exclusion of evidence is left to the trial court’s sound

discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.

1995); Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 757

(Tex. App.—Fort Worth 1998, no pet.).        “Admissibility of a photograph is

conditioned upon its identification by a witness as an accurate portrayal of the

facts, and on verification by that witness or a person with knowledge that the

photograph is a correct representation of such facts.” Davidson v. Great Nat’l

Life Ins. Co., 737 S.W.2d 312, 314–15 (Tex. 1987); see also Tex. R. Evid.

901(b)(1) (stating that all that is necessary is testimony from a witness with

personal knowledge that the photograph accurately depicts what it claims to

be).   The authentication requirement is “satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.”

Tex. R. Evid. 901(a).


       Under the above rules, Nick need not have taken the photographs or

observed them being taken in order to testify about them.        See Kessler v.

Fanning, 953 S.W.2d 515, 522 (Tex. App.—Fort Worth 1997, no pet.) (stating

that “predicate for admissibility need not be laid by the photographer, the

person photographed, or even a person who was present when the photograph

was taken”). She testified that the pictures accurately depicted Eric’s condition



                                       37
on the date that she saw him. Her testimony therefore met the requirements

of Texas Rule of Evidence 901, and the trial court did not abuse its discretion

by admitting the exhibits containing photographs of Eric. We overrule Michael’s

fifth point.


                               IX. C ONCLUSION


      Having overruled Michael’s ten points, we affirm the trial court’s order

terminating his parental rights to Matt, John, and Eric.




                                                 SUE WALKER
                                                 JUSTICE


PANEL: HOLMAN, WALKER, and MCCOY, JJ.


DELIVERED: December 18, 2008




                                      38
