












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-08-025-CV
 
 
IN THE
INTEREST OF 
Z.C., C.C., L.C., AND 
D.A.C., JR., CHILDREN                                                                         
 
                                              ------------
 
           FROM THE 324TH
DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
Jeffery C. appeals the trial court=s
termination of his parental rights to C.C. and L.C.  David C. appeals the termination of his
rights to D.A.C., Jr.  We affirm.
I. 
Background Facts




Jeffery and his former wife Kimberly Jo C. are
the parents of three children:  Z.C.,
C.C., and L.C.   Z.C. was born in 1991,
C.C. was born in 1996, and L.C. in 1997. 
Jeffery and Kimberly divorced in 2003 and became joint managing
conservators of their three children. 
After Jeffery and Kimberly separated, David and Kimberly began living
together.  David and Kimberly are the
parents of D.A.C., Jr., who was born in 2005.[1]
After a decade of referrals alleging child abuse,
the Texas Department of Family and Protective Services (ADFPS@)
petitioned to terminate Jeffery=s,
Kimberly=s, and
David=s
parental rights.  Following a bench
trial, the trial court terminated the parental rights of all three.[2]  The court terminated Jeffery=s
parental rights to C.C. and L.C.[3]
on the following grounds:
$                  
Jeffery had knowingly placed or knowingly allowed the children to
remain in conditions or surroundings that endangered their physical or
emotional well-being;
 
$                  
Jeffery had engaged in conduct or knowingly placed the children with
persons who engaged in conduct that endangered their physical or emotional
well-being; and 
 
$                  
termination was in the children=s best interest.[4]




The trial court terminated David=s
parental rights to D.A.C., Jr., on the following grounds:
$                  
David had knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endangered the child=s emotional or physical
well being; 
 
$                  
David had engaged in conduct or knowingly placed the child with
persons who engaged in conduct that endangered the child=s physical or emotional
well being;
 
$                  
David had knowingly engaged in criminal conduct that resulted in his
conviction of an offense and confinement or imprisonment and inability to care
for the child for not less than two years from the date of the filing of the
petition to terminate his parental rights; and
 
$                  
termination was in the child=s best
interest.[5]
II.  Issues
on Appeal
Jeffery and David each challenge the legal and
factual sufficiency of the evidence to support the trial court=s
findings as to their parental rights and the trial court=s
appointment of a managing conservator. 
They also contend that the provision in section 263.405(i) of the family
code that precludes us from considering issues that are not presented to the
trial court in a timely filed statement of points violates federal due process
and Texas due course of law protections under the United States and Texas
constitutions because it deprives them of a meaningful appeal.  We will address this issue first.




III.  Texas Family Code Section 263.405(i)
Texas
Family Code Section 263.405(b) provides: 
Not later than the 15th day after the date a final order is signed by the
trial judge, a party who intends to request a new trial or appeal the order
must file with the trial court:
 
(1)  a request for a new trial;
or
 
(2)  if an
appeal is sought, a statement of the point or points on which the party intends
to appeal.[6]

Section 263.405(i) provides:
The appellate court may not
consider any issue that was not specifically presented to the trial
court in a timely filed statement of the points on which the party
intends to appeal or in a statement combined with a motion for new trial.[7]
 
The order terminating Jeffery and David=s
parental rights was signed on January 3, 2008. 
Thus, under section 263.405(b), appellants=
statements of points were due January 18, 2008.[8]  Appellants, however, filed motions to extend
the time for filing the statements of points an additional five days, until
January 23, 2008, which the trial court granted.  The statements of points were filed on the
new deadline set by the trial court with appellants= motions
for new trial.




The Supreme Court of Texas has recently held that
a trial court may properly extend the deadline for filing a statement of points
on appeal, so long as the new deadline is within thirty days of the termination
order and is for good cause shown.[9]  The record conclusively shows that appellants
filed their statements of points within thirty days of the termination orders,
and the State does not challenge the trial court=s order
granting the extension.  We, therefore,
hold that appellants= statements of points were
timely filed.  Consequently, appellants=
complaint that section 263.405(i) is unconstitutional on due process grounds is
overruled as moot.
             IV.  Sufficiency of the Evidence Supporting
Termination of
                            Jeffery=s and David=s Parental Rights
 
In their first four issues, appellants contend
that the evidence is legally and factually insufficient to support the trial
court=s
findings terminating their parental rights based on family code section
161.001(1) subsections D and E.  In his
seventh issue, David challenges the sufficiency of the evidence supporting the
termination of his parental rights based on family code section 161.001(1)(Q).




In proceedings to terminate the parent‑child
relationship brought under section 161.001 of the family code, the petitioner
must establish one ground listed under subdivision (1) of the statute and must
also prove that termination is in the best interest of the child.[10]  Although each element must be proven
independently, the same evidence may be probative of both.[11]
A.     Standards of Review
Because of the elevated status of parental
rights, the quantum of proof in a termination proceeding is elevated from the
preponderance of the evidence to clear and convincing evidence.[12]  This higher burden of proof alters the
appellate standard for both legal and factual sufficiency reviews.[13]  In termination cases, both standards must
take into consideration whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the matter on
which the State bears the burden of proof.[14]




Accordingly, in reviewing the evidence for legal
sufficiency in parental termination cases, we look at all the evidence in the
light most favorable to the finding to determine whether a trier of fact
reasonably could have formed a firm belief or conviction that its finding was
true.  In conducting our review, we must
also disregard all evidence that a reasonable factfinder could have disbelieved,
however, we must consider undisputed evidence even if it is contrary to the
finding.[15]  That is, we must consider evidence favorable
to termination if a reasonable factfinder could, and disregard contrary
evidence unless a reasonable factfinder could not.[16]




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.[17]  We must determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated the relevant conduct provision of section 161.001(1) and that
the termination of the parent=s
parental rights would be in the best interest of the child as required by
section 161.001(2).[18]  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.[19]
B.     Evidence Supporting Terminating Jeffery=s Parental Rights Based
on
Family
Code Section 161.001(1)(D)
 
Under subsection D of section 161.001(1), we
examine the evidence to determine whether the parent knowingly allowed the
child to remain in conditions or surroundings that endangered the child=s
physical or emotional well-being.[20]  A parent=s
illegal drug use and drug-related criminal activity may support a finding that
the child=s surroundings endanger his
physical or emotional well-being.[21]
Jeffery, an admitted methamphetamine addict, was
the subject of multiple child-abuse referrals and investigations by DFPS during
and after his marriage to Kimberly. 
Despite having won primary custody of the children in the divorce
decree, he continued to use methamphetamine and marihuana, culminating in his
arrest and conviction on drug charges.




The evidence showed that Jeffery would keep the
children for a few months and then send them back to Kimberly.  Once, after he had passed them off to her,
she failed a drug test, gave them back to him, and he then kept them for months
during the school year without enrolling them in school.  He eventually returned the children to
Kimberly once more, complaining that caring for them had become too stressful.
Kimberly voluntarily placed the children with
Jeffery=s mother
in December 2006.  When Jeffery learned
of this, he contacted DFPS for the first time, angry that the children had been
placed with his mother.  He reported that
he was homeless and admitted that he had a history of drug abuse, but he denied
that he had used any drugs Afor
awhile.@  He refused, however, to provide any
confirmation by submitting to a drug test. 
Jeffery=s mother gave the children back
to Kimberly within days of receiving them, explaining that Jeffery had
threatened to burn her house down.




The children were placed in foster care in
January 2007.  Jeffery was still
homeless, he continued to use illegal drugs, and he avoided contact with DFPS
and the children for months.  Although supervised
visitation with the children began in March, Jeffery did not contact DFPS until
late April, when in a telephone call, he insisted that he wanted to begin
participating in the service plan.  He
admitted that he had been using illegal drugs but reported that he was working
and had enrolled in a substance-abuse program offered through his
employer.  He also admitted that he was
homeless and had been deliberately avoiding the DFPS caseworker.
Jeffery visited the children once in May, but
then missed the next scheduled appointment without advance notice, which upset
the children greatly.
Jeffery finally secured housing in August, but
the evidence showed that by November he was already behind in his rent.  In September, he reported to DFPS that he was
trying to begin taking steps toward complying with the service plans.  But he missed a scheduled drug test in
October and a visit with the children scheduled for November just before the
case went to trial.  Although he
completed some classes and attended two counseling sessions just prior to
trial, he did not complete a psychological assessment or a drug assessment
until trial was well underway.  Moreover,
he continued to use illegal drugs after trial began, admitting to having smoked
marihuana between proceedings.




We find the evidence against Jeffery legally and
factually sufficient to support the trial court=s
endangerment findings under section 161.001(1)(D) of the family code.  Jeffery=s first
four issues are overruled.[22]
C.     Evidence
Supporting the Trial Court=s Finding that Termination of Jeffery=s Rights is in the
Children=s Best Interest
 
Jeffery also challenges the sufficiency of the
evidence to support the trial court=s
finding that termination of his parental rights and the appointment of DFPS as
managing conservator is in the children=s best
interest.  
Factors that the trier of fact may use in
determining the best interest of the child include, but are not limited to the
following:
(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.[23]
 
We hold that there is legally and factually sufficient evidence of one
or more of these best interest factors to support the trial court=s
findings against Jeffery.




The evidence shows that the children, having been
passed back and forth between parents unable or unwilling to give up illegal
drugs, experienced very little stability or permanence while in the possession
of their parents.  Stability and permanence
are paramount in the upbringing of a child.[24]  In addition, although there is evidence that
the children wanted to be with their father, their ad litem supported
termination.  Furthermore, the evidence
shows that the emotional and physical needs of the children were being better
met while in foster care.  The children
were bonding well with others and were enrolled in school and improving in
foster care.  Jeffery, on the other hand,
had the children for months during the school year without having them enrolled
in school.  His employment status was
precarious, as was his ability to maintain stable housing.  His minimal efforts to improve his ability to
effectively parent on the eve of trial are not enough to overcome a decade of
poor parenting and neglect.
Jeffery=s issues
five through eight are overruled.
D.     Sufficiency
of the Evidence to Support Terminating David=s Parental
Rights
Based on Family Code Section 161.001(1)(Q)
 
In his seventh issue, David contends that the
evidence is insufficient to support termination of his parental rights under
section 161.001(1)(Q).  Subsection Q of
section 161.001(1) provides that parental rights may be terminated if the parent
has knowingly engaged in criminal conduct that has resulted in the parent=s
conviction of an offense and confinement or imprisonment and inability to care
for the child for not less than two years from the date of filing the petition.[25]  The Texas Supreme Court has interpreted this
subsection to mean two years after the termination petition is filed.[26]




David admitted that he committed the offense of
aggravated assault on May 5, 2005. 
D.A.C., Jr. was born seven months later. 
On the issue of whether David committed the offense knowing that
Kimberly was pregnant, David=s
testimony was contradictory.  At first,
he testified that he knew.  Later,
however, he testified that he did not remember when she got pregnant but that
he did not think he knew until after the offense.  Because the trial court reasonably could have
found that David=s first answer was more credible
than his second, we defer to the trial court=s
resolution of this fact issue.[27]




David pleaded guilty to the aggravated assault
charge and was sentenced to four years=
confinement on February 13, 2006.[28]  The petition to terminate his parental rights
was filed on January 4, 2007.  David
concedes in his brief that, unless he is paroled, he will be imprisoned for
more than two years from the date the petition was filed.  Although he testified that he had served
enough of his sentence to be parole eligible, there is no evidence that he
would be released before completing the full term.  David had been incarcerated most of his
life.  Between the ages of eighteen and
forty, the longest period that he had not been incarcerated was two-and-a-half
years.  Both of his children were born
while he was in jail.  It was reasonable
for the trial court to conclude that he would not be released on parole but
would serve his full sentence.
David admitted that because he was incarcerated
he had no present ability to care for D.A.C., Jr., but he hoped that one of his
relatives could care for the child until David=s
release from prison.  His mother, Kay C.,
testified that she had cared for D.A.C., Jr., in the past, and that she had
told Kimberly that she would have taken him. 
The investigator, however, testified that at the time D.A.C., Jr. was
removed, Kay refused to care for him any longer.  Moreover, the evidence is undisputed that,
while the case was pending, Kay moved into and signed a years= lease
on an assisted-living facility that excluded tenants under the age of
sixty-two.
We hold that the evidence is legally and
factually sufficient to support the trial court=s
finding that David violated section 161.001(1)(Q) of the family code.  David=s
seventh issue is overruled.[29]




E.     Sufficiency of the Evidence Supporting the
Trial Court=s Finding that
Termination of David=s Parental Rights is in the Child=s Best Interest
 
There is also legally and
factually sufficient evidence to support the trial court=s best
interest findings against David.  The
record shows D.A.C., Jr. had never known him. 
D.A.C., Jr. was born while David was incarcerated and was less than two
years old at the time of trial.  The only
time David had seen D.A.C., Jr. was when Kimberly brought him to the jail once
for a visit just after he was born. 
Although D.A.C., Jr. was too young to voice his desires at the time of
trial, the ad litem recommended termination.
Further, David could not provide for the child=s
physical and emotional needs because he was currently serving a prison term,
and he presented no viable options for caring for the child until after he was
released.  While David planned to care
for D.A.C., Jr. after he gets out of prison, he had only served two-and-a-half
years of a four year sentence, and there is no evidence that he will be
released before serving the full term. 
DFPS, on the other hand, planned to keep D.A.C., Jr. and his siblings
together and to fast-track their adoption into the same home.




Moreover, the evidence shows that David had
virtually no parental experience or ability and that he had exposed other
children to illegal drug use.  He
testified that during one of the brief periods when he was not incarcerated and
was living with Kimberly and two of her other children, he used illegal drugs
in the home, resulting in his arrest for a parole violation.
Having carefully reviewed the record, we hold
that it was reasonable for the trial court to form a firm conviction or belief
that termination of David=s parental rights and
appointment of DFPS as managing conservator was in D.A.C., Jr.=s best
interest.  We overrule David=s issues
five, six, and eight.
V.  Jeffery=s Motion
for Continuance
In his ninth issue, Jeffery contends that the
trial court abused its discretion by overruling his motion for continuance
because his attorney announced that she had not received documentation she
requested from the State and was, as a result, not ready for trial.




We review a trial court=s ruling
granting or denying a motion for continuance for an abuse of discretion.[30]  We do not substitute our discretion for that
of the trial court.[31]  Instead, we must determine whether the trial
court=s action
was so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law.[32]  The focus is on whether the trial court acted
without reference to guiding rules or principles.[33]
Under Texas Rule of Civil Procedure 251, a trial
court may not grant a continuance Aexcept
for sufficient cause supported by affidavit, or by consent of the parties, or
by operation of law.@[34]  Jeffery=s motion
was unsworn and  unsupported by
affidavit.  Therefore, it did not comply
with rule 251, and under the plain language of the rule, the trial court was
without discretion to grant it.  We
overrule Jeffery=s ninth issue.
                                          VI.  Conclusion
Having
overruled all dispositive issues raised by appellants, we affirm the trial
court=s order
terminating appellants= parental rights to C.C., L.C.,
and D.A.C., Jr.
 
PER
CURIAM
 
PANEL:  CAYCE, C.J.; LIVINGSTON, and HOLMAN, JJ.
 
DELIVERED:   February 12, 2009




[1]David and Kimberly are
also the parents of A.R.C.  David=s rights to A.R.C.,
however, were terminated before this case was instituted.


[2]The trial court
terminated Kimberly=s rights to C.C., L.C.,
and D.A.C., Jr., but she has not appealed.


[3]The trial court did not
terminate any rights to Z.C., who at the time of trial was sixteen years old
and a runaway.


[4]See Tex. Fam. Code Ann. ' 161.001(1)(D),(E),
(2)(Vernon 2008).


[5]See id. ' 161.001(1)(D),(E),(Q),
(2).


[6]Id. ' 263.405(b) (Vernon
2008)(emphasis added).


[7]Id. ' 263.405(i)(emphasis
added).


[8]Id. ' 263.405(b).


[9]See In re M.N., 262 S.W.3d 799, 803B05 (Tex. 2008).


[10]Tex. Fam. Code Ann. ' 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005).


[11]In re C.H., 89 S.W.3d 17, 28 (Tex.
2002).


[12]Santosky v. Kramer, 455 U.S. 745, 758B69, 102 S. Ct. 1388
(1982); see also Tex. Fam. Code Ann. ' 161.001.


[13]In re J.F.C., 96 S.W.3d 256, 265 (Tex.
2002); C.H., 89 S.W.3d at 25; In re J.T.G., 121 S.W.3d 117, 124
(Tex. App.CFort Worth 2003, no
pet.).


[14]J.F.C., 96 S.W.3d at 265B66; C.H., 89
S.W.3d at 25; J.T.G., 121 S.W.3d at 124.


[15]In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005).


[16]Id.


[17]In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006).


[18]C.H., 89 S.W.3d at 28.


[19]H.R.M., 209 S.W.3d at 108.


[20]J.T.G., 121 S.W.3d at 125; In
re D.T., 34 S.W.3d 625, 632 (Tex. App.CFort Worth 2000, pet. denied).


[21]J.T.G., 121 S.W.3d at 125.


[22]Because the finding under
section 161.001(1)(D) is enough to support a judgment of termination, we need
not address Jeffery=s issues regarding the
trial court=s findings under section
161.001(1) subsection (E).  See In re
K.A.S., 131 S.W.3d 215, 225 (Tex. App.CFort Worth 2004, pet. denied); Tex. R. App. P.
47.1.


[23]Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976); see
C.H., 89 S.W.3d at 27.


[24]See In re T.D.C., 91 S.W.3d 865, 873
(Tex. App.C Fort Worth 2002, pet.
denied).


[25]Tex. Fam. Code Ann. ' 161.001(1)(Q).


[26]In re A.V., 113 S.W.3d 355, 356B57 (Tex. 2003).


[27]See H.R.M., 209 S.W.3d
at 108; J.P.B., 180 S.W.3d at 573; J.F.C., 96 S.W.3d at 265B66.


[28]The judgment credited
David with 244 days= time served.


[29]Because the finding under
section 161.001(1)(Q) is sufficient to support a judgment of termination, we
need not address David=s issues regarding the
trial court=s findings under section
161.001(1)(D) and (E).  See K.A.S.,
131 S.W.3d at 225; Tex. R. App. P. 47.1.


[30]See BMC Software Belg.,
N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).


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


[32]Marchand, 83 S.W.3d at 800.


[33]Goode v. Shoukfeh, 943 S.W.2d 441, 446
(Tex. 1997).


[34]Tex. R. Civ. P. 251.


