in the Interest of L.T. and K.B., Children

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00094-CV

IN THE INTEREST OF L.T. AND K.B., CHILDREN

----------

FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Appellant A.L. (Mother) appeals the trial court’s order terminating her

parental rights to her children, L.T. and K.B. Appellant R.T. (Richard) appeals

the termination of his parental rights to L.T., and appellant G.B. (George) appeals

the termination of his parental rights to K.B.2 The parents contend that the

evidence is legally and factually insufficient to show that termination of their rights

1 See Tex. R. App. P. 47.4. 2 To protect the identity of the parties, we will identify them through initials or portions of their names. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008); Tex. R. App. P. 9.8(b). is in the best interests of the children, and Mother also argues that the trial court

erred by denying her motion for continuance. We affirm.

Background Facts

Mother and Richard are the parents of L.T.; Mother and George are the

parents of K.B. On April 2, 2009, while the children were living with Mother,

George, and George’s roommate, Child Protective Services (CPS) received an

allegation that methamphetamine was being manufactured in a garage next to

the home.3 One of CPS’s employees, Melinda Esquibel, went with four narcotics

officers to the home, where they found Mother’s sister, Melinda Bednar. Mother

was not initially at the home, but the children were, and Bednar was holding L.T.

Neither father was there. The children stunk because they were dirty and their

diapers had not been recently changed.

Outside of the home, Esquibel saw surveillance cameras, and inside the

home, she saw clutter, unwashed dishes, what she believed to be a drug pipe

with liquid inside, and marijuana that was within reach of L.T. Eventually, Mother

arrived at the residence; she had dark circles under her eyes, was ―very slurred

in her words,‖ and was not engaged in her conversation with Esquibel. Mother

admitted that she was using marijuana and said that she had used

methamphetamine that day.

3 In April 2009, L.T. was two years old and K.B. was a few months old.

2 After obtaining a search warrant, officers found a meth lab at the property

where the children lived. Specifically, they discovered, in a small garage outside

the residence, digital scales, ―tons of‖ ephedrine tablets, lithium batteries,

Coleman fuel, anhydrous gas generators, and a gas mask, which are all items

related to methamphetamine production. They also discovered a full syringe

located underneath a seat cushion inside the house; the syringe could have been

reached by L.T.

CPS removed the children from the home and told Mother that she would

need to work services, including drug treatment, to get the children back.

Esquibel took the children to a hospital, where L.T. tested positive for

methamphetamine.4

The Department of Family and Protective Services (the Department) filed a

petition that asked for, among other relief, termination of each parent’s rights to

the children if reunification could not be achieved. The Department attached an

affidavit that detailed the findings at the children’s home. The trial court granted

the Department temporary sole managing conservatorship of the children,

appointed an attorney ad litem to represent them, and limited the parents’ access

to them to times arranged by the Department. The parents filed answers to the

Department’s petition. The children began living with a foster family.

4 Esquibel’s involvement in this case ended in May 2009.

3 In May 2009, the Department filed service plans that described the

children’s history and needs and gave the parents several particular tasks to

achieve reunification with them. Later that month, the trial court found that the

parents understood the service plans.

A few days before the termination trial in February 2010, Mother filed a

motion for continuance on the grounds that her attorney was unprepared to

proceed and that she needed more time to complete the service plan. Richard

also asked for a continuance. During a hearing on Mother’s continuance motion

before the trial began, her counsel explained that Mother was awaiting resolution

of a criminal charge. The trial court denied the continuance requests.

After the trial concluded, the court terminated each parent’s rights to the

children. It found that each parent knowingly placed or allowed the children to

remain in conditions or surroundings that endangered their physical or emotional

well-being and engaged in conduct or knowingly placed the children with persons

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

The court also found that Mother and George constructively abandoned the

children and that termination of each parent’s rights was in the children’s best

interests. The Department became the children’s permanent managing

conservator and received authorization to place them for adoption. The parents

each filed a notice of appeal.

4 Best Interests of the Children

Each parent contends that the trial court’s termination order should be

reversed because the evidence is legally and factually insufficient to show that

termination of their rights is in the best interests of the children. 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 State seeks not just to limit parental rights but to

erase 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 2008); Holick

v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex.

App.—Fort Worth 2008, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must prove that termination is in

5 the best interest of the child. Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp.

2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).5 Termination decisions must be

supported by clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001,

.206(a). 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.‖ Id. § 101.007 (Vernon 2008).

In reviewing the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the

evidence in the light most favorable to the finding and judgment. Id. This means

that we must assume that the factfinder resolved any disputed facts in favor of its

finding if a reasonable factfinder could have done so. Id. We must also

disregard all evidence that a reasonable factfinder could have disbelieved. Id.

We must consider, however, undisputed evidence even if it is contrary to the

finding. Id. That is, we must consider evidence favorable to termination if a

reasonable factfinder could and disregard contrary evidence unless a reasonable

factfinder could not. Id.

We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

5 None of the parents challenge the grounds for termination under section 161.001(1). See Tex. Fam. Code Ann. § 161.001(1).

6 the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573–74. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as they

are not unreasonable. Id. at 573.

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 termination of the parent-child relationship would be in the best interest of

the child. See Tex. Fam. Code Ann. § 161.001(2); 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.

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). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon 2008).

In evaluating the parent’s willingness and ability to provide the child with a safe

environment, we may consider, among other factors, the child’s age and physical

and mental vulnerabilities; the frequency and nature of out-of-home placements;

the magnitude, frequency, and circumstances of the harm to the child; the results

7 of psychiatric, psychological, or developmental evaluations of the child’s parents;

whether there is a history of substance abuse by the child’s family or others who

have access to the child’s home; the willingness and ability of the child’s family to

seek out, accept, and complete counseling services; the willingness and ability of

the child’s family to effect positive environmental and personal changes within a

reasonable period of time; and whether an adequate social support system

consisting of an extended family and friends is available to the child. Id.

§ 263.307(b); R.R., 209 S.W.3d at 116.

Other factors used to determine the best interest of the child include the

desires of the child; the emotional and physical needs of the child now and in the

future; the emotional and physical danger to the child now and in the future; the

parental abilities of the individuals seeking custody; the programs available to

assist these individuals to promote the best interest of the child; the plans for the

child by these individuals or by the agency seeking custody; the stability of the

home or proposed placement; the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one; and 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. 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.

8 The parents’ poor decisions

Mother’s drug history and background

During an interview that occurred a day after the children’s removal in April

2009, Mother told Esquibel that her drug of choice was marijuana, which she

used twice a week, and that she had been using methamphetamine on a daily

basis. Mother cared for the children while she was under the influence of drugs.

She believed that George also used methamphetamine. A few days after the

children’s removal, Mother came to a visit with the children smelling like

methamphetamine. Mother had failed in the past to complete outpatient

treatment for her drug use, but she told Esquibel that she would be willing to

receive treatment at Recovery Resources in Arlington. Mother did not contact

Esquibel after a telephone call on April 24, 2009.

Mother’s involvement with drugs caused her incarceration that lasted until

the time of the termination trial. CPS case worker Linda Phillips said that even if

Mother had not been incarcerated, she would be concerned that Mother could

not maintain a drug-free lifestyle and could not refrain from having a relationship

with someone involved with drugs, such as Richard.

George’s drug history and background

George conceded that drugs were used in his home and that the children

possibly inhaled drug fumes. He denied knowing of the methamphetamine lab at

the home. George was not employed when he talked to Esquibel, and he

admitted that he had sold drugs ―all his life.‖ He was in jail when he talked to

9 Esquibel because of the methamphetamine that the officers found, but he said

that he would be willing to complete inpatient drug treatment.6

George is not able to read or write, and he remained in jail from April 2009

until the termination trial in February 2010. He has a 2005 conviction for

possession of certain chemicals with the intent to manufacture

methamphetamine, of which he served a two-year sentence. He also has a 1990

conviction for delivering cocaine, of which he was placed on ten years’ probation.

Richard’s evaluation with Dr. Nichelle Wiggins and his personal history

Dr. Nichelle Wiggins, a licensed psychologist, evaluated Richard in August

2009. Richard told Dr. Wiggins that his involvement with the Department began

because Mother and L.T. resided with a man who was arrested for manufacturing

drugs (presumably George), and L.T. tested positive for methamphetamine.

Richard was not surprised that there were drugs in the home because he knew

Mother was using drugs. He expressed concern about Mother’s neglect of L.T.

because L.T. did not bathe sometimes and was not well taken care of. Richard

acknowledged, however, that he did not try to remove L.T. from Mother’s home

because he was also using drugs and ―didn’t really know all his options of what

he could have done . . . , so he basically did nothing.‖

6 George was arrested for possessing chemicals with the intent to manufacture methamphetamine and other drug-related crimes. Mother was also arrested in connection with the drugs found at the residence. Mother’s and George’s criminal charges were still pending at the time of the termination trial.

10 At the time of Richard’s interview with Dr. Wiggins, he was living with a

friend who was using drugs, and other friends who visited him also used drugs.

Richard admitted that he had used drugs for twenty years and that at one time,

he used methamphetamine daily.7 Richard used methamphetamine

intravenously, by snorting it, and by eating it. He was able to buy drugs because

he sold them. He told Dr. Wiggins, however, that because of his love for L.T. and

prayer, he had not used drugs for approximately four months before the

interview. But Richard had attended inpatient treatment for his drug use at

various times in the past and would ―use [drugs] as soon as he got out.‖

Because of his drug addiction, Richard had not had his own place to live since

2003.

Richard had four children other than L.T., but he did not remain active with

those children and did not have contact with three of them for fifteen years.

Richard used drugs during his relationships with both of the mothers of his other

four children.

Dr. Wiggins learned that Richard had been arrested for burglary in 1996,

possession of cocaine in 1997, and theft in 2006. The theft occurred when he

took a flat bed trailer to sell it for money to buy drugs.

7 Richard also admitted his drug use and his knowledge of Mother’s methamphetamine use to Esquibel.

11 Richard told Dr. Wiggins that he loved L.T. and was willing to stop using

drugs to be involved with her. He said that he was employed helping landlords

do various jobs.

Dr. Wiggins was concerned about Richard’s ability to raise L.T. because of

his failure to protect L.T., unhealthy relationships, chronic drug use, legal

problems, poor decisions, and absence as a father; she believed that he was ―a

very high risk to relapse‖ because of his twenty-year addiction and his decision to

surround himself with people who used drugs. Dr. Wiggins was also troubled by

the way Richard answered certain questions. For instance, when Richard was

asked if there was one thing that he could change about himself, he said that he

―wish[ed] [he] was tall.‖ Dr. Wiggins therefore believed that Richard was not

focused on L.T. and ―highly recommended‖ that L.T. remain in protective care

because the ―prognosis was poor for any kind of significant progression.‖

Richard attended all of his visits with the children. In November 2009,

during one of the visits, he admitted that he sells drugs, and he blamed a positive

drug test on his drug-selling behavior. Mother said that Richard bought a new

truck with money from selling methamphetamine.

Phillips conducted an unannounced visit of Richard’s house; Richard did

not let Phillips enter a room where he said that his cousin stayed, and Phillips

also could not enter a locked storage area. Richard did not give Phillips

background information on his cousins that resided with him. Phillips was

concerned about the cleanliness and child-friendliness of the home (for instance,

12 there was a chainsaw on the floor in Richard’s bedroom). Phillips believed that

Richard was not drug-free at any point during the case, and she opined that he

did not have parenting skills necessary to provide for L.T.’s needs. Richard told

Phillips that at the time of the trial, he was making money by repairing and selling

trailers.

The parents’ compliance with the service plans

When Phillips began her involvement in the children’s case, George was

already incarcerated but Mother was not. Phillips did not discuss the service

plan with Mother, however, until June 2009, at which time Mother was

incarcerated. While in jail, Mother worked on some of the service plan and

progressed toward obtaining a GED. She also participated in substance abuse

programs (including Christians Against Substance Abuse), a bible class, and

other religious classes. She did not complete parenting classes, a psychological

evaluation, or individual counseling, but Phillips did not facilitate making those

services available for Mother. Mother wanted to resume her relationship with

Richard if she was released from confinement, but the timing of her release was

uncertain. When Phillips was testifying about the completion certificates that

Mother received, she said, ―The biggest thing is what [parents] do when they get

out of jail.‖

George did not take any classes while confined and did not communicate

with Phillips even though Phillips told George that some of the classes could be

completed while he was in jail.

13 Richard completed the psychological evaluation with Dr. Wiggins and

parenting classes. He also started a drug program at Merit Family Services but

was discharged in November 2009 for noncompliance because his ―lifestyle

centered around his choice of drugs.‖ He then started another drug program in

December 2009 and last visited that program in January 2010 (the month before

the trial began) before he was also discharged from it because of a positive hair

follicle drug test.8 Richard was also discharged from individual counseling.

He tested positive for methamphetamine in October 2009 and again in January

2010 (just a month before trial); he acted surprised when he learned of these

results. Richard did not complete individual counseling.

Possible familial placements

After Esquibel told Mother that the children would be taken outside the

home, Mother gave Esquibel some names of relatives for possible placement but

was not able to give Esquibel contact information for most of those people.

A few days later, Mother gave Esquibel names of paternal cousins but did not

give Esquibel background information on the cousins so that a home study could

be completed.

Richard asked that his aunt, Sue, be allowed to care for the children, but

Esquibel was not able to contact Sue.

8 Richard told one of his drug counselors that he had a meth lab in his back yard.

14 George asked that his sisters, Helen and Ellen, be able to keep the

children, but he did not give contact information for them, and Esquibel never

talked to them. George’s mother, Joyce, told Esquibel that neither Helen nor

Ellen would be able to care for the children, but Joyce asked that she be

considered for placement.

Joyce came to most of Richard’s visits with the children and acted

appropriately and lovingly. Mother wanted the children to be placed with Joyce.

However, at a family group conference, Joyce allegedly said that she would not

be able to keep her daughter, Leanna Scoggins (one of K.B.’s aunts), away from

the children, and this concerned CPS because Scoggins had a ―reason to

believe‖ CPS finding against her.9 Scoggins said that she would move in with

Joyce if the children lived there. CPS was also reluctant to place the children

with Joyce because of her age (she was seventy-six years old at the time of the

trial), statements during visits that the children ―tire[d] her out,‖ her income, her

housing instability, her inability to protect the children,10 and a previous fatal

accident her son had. Phillips never visited Joyce’s home, but Joyce failed a

home study.

9 Joyce denied making this statement. Scoggins had been living with Joyce at the time of the trial for about six months. Joyce said that she would remove Scoggins from the home if needed. 10 One of CPS’s employees testified, ―[Joyce] had been to the address where the kids had been staying. I can’t imagine that she didn’t know the condition that they were living in.‖

15 Joyce testified at the termination trial. She said that she was living in a

two-bedroom apartment and that she would ―love to take care‖ of the children.

She testified that she had high blood pressure and arthritis in one knee but

otherwise had good health. She said that she would receive financial help to

care for the children. She explained that her son’s death occurred many years

ago when he pulled a deep fryer down on himself.

Mother’s attorney also proposed Mary Ciano as a placement option along

with some of Mother’s other relatives, Charles Bednar, Charlie Bednar, and

Loydean Bednar. But Mary said that she could not care for any more children,

Charlie had a ―reason to believe‖ finding for physical neglect of her daughter,

Charles had a physical neglect finding, and Loydean had a CPS history and

three felony convictions. Thus, CPS believed that it had exhausted all leads for

placing the children with any of the parents’ family members. Jennifer

Thompson, a CPS supervisor, said that she would be willing to continue looking

at familial placements.

The children’s placement at the time of trial and the Department’s plan for the children

The children’s foster mother said that when she began caring for the

children in April 2009, two-year-old L.T. did not sleep or interact with people well.

She also cried excessively and shoveled any food that she saw. L.T. received

developmental therapy, speech therapy, behavioral therapy, and occupational

therapy. She became a ―different child‖ from the time she came into her foster

16 parents’ care; she began talking, saying random sentences, smiling and hugging,

and acting more secure without crying. L.T.’s foster mother recognized L.T.’s

need to receive special education once she started school because although L.T.

had made progress, she still lacked some cognitive skills.

The children’s foster mother described K.B., who was one and a half years

old at the time of the trial, as a ―perfect little bundle of joy.‖ But K.B. was also

somewhat developmentally behind (for instance, she was about four months late

in learning to walk and was not talking very much). The foster mother did not

want to adopt the children but said that the children were welcome to stay in the

home as long as needed.

The children had weekly one-hour visits with Richard, and L.T. enjoyed the

visits and left them in a good mood. Richard always brought food, toys, and

clothes for both children (even though K.B. is not his child).

Phillips opined that termination of each parent’s rights was in the best

interests of the children. She said that the Department wanted the children to be

adopted, and she believed that finding adopting parents would not be difficult, but

she acknowledged that the children would need to be moved from their foster

parents to be adopted, which affects their stability.

The sufficiency of the evidence for termination

We conclude that under the standards detailed above, these facts are

legally and factually sufficient to show, clearly and convincingly, that termination

of each parent’s rights is in the children’s best interests. The Department proved

17 that the children are young and need developmental attention. They are unlikely

to get sufficient attention in the parents’ care because of Mother’s and George’s

incarceration and each parent’s substantial connection with a combination of

using, distributing, or manufacturing drugs.11 See In re M.R., 243 S.W.3d 807,

820–21 (Tex. App.—Fort Worth 2007, no pet.) (holding that termination was in

the best interest of children when a mother had a history of abusing drugs); In re

S.B., 207 S.W.3d 877, 888 (Tex. App.—Fort Worth 2006, no pet.) (relying on

drug use as evidence supporting termination of a father’s parental rights). In fact,

the children developed better after they left the parents’ care and began living in

their foster home.

The Department showed that the parents were careless about whether the

children could be harmed by their exposure to drugs and the chemicals used to

make them, and L.T. had in fact been harmed by Mother’s and George’s drug-

related choices because she tested positive for methamphetamine. None of the

parents completed all of the service plan, and the evidence is scant that Mother

or George sought out many of the required services while they were incarcerated

(although Mother participated in some drug and spiritual counseling). Neither

Mother nor George testified that they could remain drug-free outside of a

11 We recognize that a parent’s imprisonment ―does not automatically establish that termination of parental rights is in the child’s best interest.‖ In re S.R.L., 243 S.W.3d 232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

18 confined environment, and Mother told Esquibel that her ―longest clean-time was

about a year and nine months.‖

Various members of the parents’ family could not care for the children,

could not be located, or were not qualified to have custody of them because of

previous negative involvement with the Department or other factors.

The children were in a stable, positive environment at the time of the termination

trial, and they could remain there until the Department found a permanent

adoptive home.

Neither Mother nor George had been found guilty of the charges related to

CPS’s April 2009 investigation.12 Mother contends that the trial court should

have granted the Department permanent managing conservatorship of the

children and readdressed termination or reunification after she resolved her

criminal case. But the evidence substantiated Mother’s and George’s recent

drug-related behavior regardless of whether they were convicted of any specific

act, and neither Mother nor George testified that they were innocent of the

charges against them or provided the trial court with direct explanations of their

12 The trial court could have reasonably inferred that George was responsible for the methamphetamine lab at his home because he had been previously convicted of possessing materials to manufacture the drug. See In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ) (―[T]he trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences.‖); see also In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (―A factfinder reasonably could infer that [a mother’s] failure to submit to the court- ordered drug screening indicated she was avoiding testing because she was using drugs.‖).

19 behavior, which included leaving marijuana and a syringe within the reach of L.T.

and exposing her to methamphetamine. Cf. In re N.A., No. 02-10-00022-CV,

2010 WL 3834640, at *9–11 (Tex. App.—Fort Worth Sept. 30, 2010, no pet.)

(mem. op.) (holding that the evidence was factually insufficient to support the trial

court’s best interest finding when a mother’s aggravated robbery case was

unresolved at the time of the termination trial, the mother denied the aggravated

robbery at trial, and the Department was planning to return the mother’s children

before her arrest).

Based on all the facts described above, we conclude that the evidence is

legally and factually sufficient to show that termination of each parent’s rights is

in the children’s best interests. See Tex. Fam. Code Ann. § 161.001(2); H.R.M.,

209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573. Thus, we overrule both of

George’s points, both of Richard’s issues, and Mother’s first and second issues.

The Denial of Mother’s Motion for Continuance

In her third issue, Mother argues that the trial court erred by denying her

motion for continuance that she filed a few days before trial. She relies on

section 161.2011 of the family code, which states,

A parent whose rights are subject to termination in a suit affecting the parent-child relationship and against whom criminal charges are filed that directly relate to the grounds for which termination is sought may file a motion requesting a continuance of the final trial in the suit until the criminal charges are resolved. The court may grant the motion only if the court finds that a continuance is in the best interest of the child.

20 Tex. Fam. Code Ann. § 161.2011(a) (Vernon Supp. 2010). As we recently

explained,

We review a trial court’s ruling granting or denying a motion for continuance for an abuse of discretion. We do not substitute our discretion for that of the trial court. 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. The focus is on whether the trial court acted without reference to guiding rules or principles.

In re Z.C., 280 S.W.3d 470, 478 (Tex. App.—Fort Worth 2009, pet. denied)

(footnotes and citations omitted).

Mother argues that the ―rationale for the application of [section

161.2011(a)] to grant the continuance is essentially the same‖ as her argument

that termination was not in the best interests of the children. But we have upheld

the trial court’s determination that termination was in the children’s best interests.

Also, although Mother’s trial attorney stated during the motion for

continuance hearing that Mother had an April 2010 trial date for her criminal

case, the record does not establish that Mother’s case was certain to be resolved

at that time (Mother did not present any evidence on the issue), and the

Department’s attorney told the court that she had spoken ―with the Assistant

District Attorney assigned to the case, and it didn’t seem likely that [the case]

was going to be resolved in April.‖13 Next, although Mother’s trial attorney told

the trial court that she had ―learned of additional family members that may be

13 Mother’s criminal trial date had been reset three previous times.

21 able and willing to take custody of the children,‖ she did not say who those

relatives were (except for Mary Ciano, who, as stated above, said she could not

care for the children), explain why they were qualified to care for the children, or

elicit testimony from them during the brief continuance hearing. See Tex. R. Civ.

P. 251 (requiring a showing of sufficient cause for the granting of a continuance).

Moreover, the children had already been in foster care for several months at the

time of the trial, and proceeding with the trial in February 2010 allowed the trial

court to expedite their permanent placement. ―[T]he 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).

Finally, Mother’s written motion failed to comply with rule 251 because it

was not verified or supported by an affidavit, and the trial court could have

properly denied the motion on this ground as well. See Tex. R. Civ. P. 251; In re

M.M.F., No. 02-08-00014-CV, 2008 WL 5265033, at *14 (Tex. App.—Fort Worth

Dec. 18, 2008, no pet.) (mem. op.); In re T.H., No. 02-07-00464-CV, 2008 WL

4831374, at *8–9 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.); In re

E.L.T., 93 S.W.3d 372, 375 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

For these reasons, we conclude that the trial court did not abuse its

discretion by denying Mother’s motion for continuance. See Z.C., 280 S.W.3d at

478. We overrule her third issue.

22 Conclusion

Having overruled all of each parent’s issues or points, we affirm the trial

court’s judgment.

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: February 17, 2011