in the Interest of N.S.H

• Court: Court of Appeals of Texas
• Decided: November 8, 2005
• Docket: 14-05-00025-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 8, 2005

Affirmed and Memorandum Opinion filed November 8, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00025-CV

IN THE INTEREST OF N.S.H.

On Appeal from the 311th District Court

Harris County, Texas

Trial Court Cause No. 95-20466

M E M O R A N D U M   O P I N I O N

Appellant Mikel E. H. appeals from the trial court=s decree terminating his parental rights to his biological daughter, N.S.H.  In four points of error, he challenges the legal and factual sufficiency of the evidence to support the jury=s verdict that his parental rights should be terminated and challenges the trial court=s denial of his motion for continuance.  Concluding the evidence was legally and factually sufficient to support the jury=s verdict and the trial court did not abuse its discretion in denying Mikel=s motion for continuance, we affirm.

Factual and Procedural Background

Events leading to the termination proceedings.  N.S.H. was born in 1994.  By the time N.S.H. was two and a half months old, Mikel brought her to Patricia H. and asked Patricia to keep her.^[1]  Mikel said N.S.H.=s mother was Adoing dope.@  Mikel moved into Patricia=s residence and married Patricia in 1995.  During their marriage Mikel took trips to Tennessee for a week or so at a time and left N.S.H. in Patricia=s care.  According to Patricia, Mikel worked at Jiffy Lube for about five months, but she did not know of any employment Mikel had after that.  Mikel and Patricia had a community property trucking business, but Mikel did not do much driving, and Patricia did not let him drive the new trucks because he was always drunk.

Patricia and Mikel divorced in 1998, but Patricia stayed in the relationship with Mikel because of N.S.H.  After the divorce, N.S.H. stayed mainly with Patricia although initially Mikel kept N.S.H. at his apartment across the street.  A few months after the divorce, Mikel took N.S.H. to Tennessee.  During that time, he asked Patricia for money to take care of N.S.H.  Less than six months later, Mikel returned to Houston, got some money, left N.S.H. with Patricia, and returned to Tennessee.

Mikel subsequently acquired a new girlfriend, Sherry.  When Sherry and Mikel came to Houston from Tennessee, they stayed in Patricia=s house or in a motel for which Patricia paid.  The first time they came, they stayed about three weeks.  They came again in March 2003 and stayed for several months.

On June 25, 2003, while Mikel and Sherry were still residing at Patricia=s apartment, Patricia visited a psychologist and took N.S.H. with her.  N.S.H. waited in another room while Patricia saw the psychologist.  Patricia was very depressed because of Mikel.  He was threatening Patricia and her sister, and Patricia was afraid of him.  During her talk with the psychologist, Patricia said, AI know how I can get out of here if I want to.  I=ve got all these drugs.  I can just mix them all together and do it.@  Her comments were taken as a suicide threat, and someone called the police.  Several policemen arrived, and Patricia was taken to a psychiatric ward at the University of Texas.  An officer transported N.S.H. to the Department of Family and Protective Services (ADFPS@).

DFPS investigator Varrell Milburn spoke with N.S.H., Mikel, and Sherry that same day.  Mikel refused to cooperate and was attempting to leave.  DFPS took emergency custody of N.S.H. because the family was a flight risk, there were allegations of drug abuse and domestic abuse, N.S.H. was afraid to go home with Mikel, and DFPS could not verify the family had a stable place to live.

DFPS filed an original petition for the protection of a child.^[2]  At a hearing June 26, 2003, the court appointed DFPS as temporary managing conservator, thereby triggering a dismissal  date of June 24, 2004.^[3] 

Request for continuance.  After the trial court granted a 180-day extension, trial was set for November 15, 2004.  On the first day of trial, Mikel filed a motion for continuance, alleging his mother had died on November 2, 2004, in Knoxville.  As a result, he had expended all his resources and had been unable to secure additional resources to return to Houston.  The trial court denied the motion and the case proceeded to jury trial.

The trial.  Patricia testified about her relationship with N.S.H. and Mikel.  During the time Patricia had N.S.H., Mikel did not provide for N.S.H. in any way.  He never bought diapers, food, or groceries for N.S.H.  Instead, he demanded money from Patricia and would blackmail her, saying if she did not provide money, he would take N.S.H. away.  Patricia estimated she probably paid Mikel about $40,000; and N.S.H. was apart from Patricia for only about six months total time.  When Mikel was not living with Patricia and N.S.H., he would call Patricia primarily for money, talking with N.S.H. only long enough to say, AHi Baby . . . How are you?  Let me talk to your mom.@  Both Patricia and her sister gave Mikel money, and Patricia knew he was spending it on drugs.

According to Patricia, Mikel drank beer on a daily basis and drank in front of N.S.H.  Initially he drank a twelve-pack a day, but then he increased it to an eighteen pack, and subsequently a case.  Patricia bought the beer for Mikel because he threatened her.  Patricia testified Mikel also used drugs.  She said he used drugs every day if he had the money.  The drug use aggravated his temper and led to arguments between the two of them.  After N.S.H. was born, Patricia saw Mikel use speed, methamphetamine, marijuana, and crack cocaine.  She saw Mikel purchase marijuana from a friend, and N.S.H. was with him on some of these occasions.  According to Patricia, Mikel used marijuana and crack cocaine in N.S.H.=s presence.

Mikel hit Patricia a couple of times, but not too hard.  Once he hit N.S.H. pretty hard on the top of her head.

Mikel also threatened Patricia with violence.  She believed N.S.H. would hear these threats and Mikel did not care whether N.S.H. was there or not.  Once Mikel came to Patricia=s residence with a pistol and said he would have used it had N.S.H. not been there.  Another time, at about 11:00 P.M., he put a knife to her throat when she was in bed, told her to get up and get dressed to go somewhere.  She was afraid and drove Mikel to get some crack cocaine.  N.S.H. slept in the back seat of the car.

DFPS investigator Varrell Milburn testified Mikel and Sherry attended the emergency hearing concerning N.S.H.  They were wearing the same clothes as the previous night when she saw them after N.S.H. was taken into custody.  They also smelled of alcohol.

DFPS substitute care worker Julie Abaneme testified the DFPS plan of service required Mikel to attend individual counseling, obtain a job, maintain appropriate housing, complete parenting classes, obtain alcohol and psychological evaluations, obtain random urine analyses, and follow through with all the recommendations.  Abaneme referred Mikel for drug evaluation and, by letter, provided Mikel with information about where to obtain the evaluation.  Abaneme never received a response, and no drug evaluation or drug services were done for Mikel.  Mikel also did not submit to a court-required hair follicle test.

Abaneme was asking the jury to terminate Mikel=s parental rights because he had not completed all the tasks in the family service plan, had not dealt with the domestic violence and ongoing drug abuse, had no stable home, had not been able to provide for N.S.H., and N.S.H. was afraid of him.  After DFPS took N.S.H. into protective care, Mikel had lived in several different locations, including some time in jail because of what she understood to be assault with a deadly weapon.  According to the judgment of conviction, Mikel committed the assault in question in January 2004.^[4]  Abaneme did not believe Mikel was making any changes in his life that would make him able to parent N.S.H.

Penny Godwin, a Child Advocates volunteer, was appointed as N.S.H.=s guardian ad litem in July 2003.  She initially met N.S.H. at the DFPS shelter and observed N.S.H. was very overweight and angry.^[5]  In August 2003, N.S.H. was placed in a foster home, where she remained until the trial.  Goodwin described N.S.H.=s foster home as a four bedroom, two-bath house, in which N.S.H. had three brothers and had a very loving and comfortable relationship with her caregivers.  According to other testimony, the home is a potential adoptive home, and there is a specific adoptive interest in N.S.H.  When asked what she believed would be in N.S.H.=s long-term best interests, Godwin stated it was her opinion parental rights should be terminated.  She stated Mikel never parented N.S.H., N.S.H. is terrified of Mikel, Mikel did not participate in services, or make any efforts to do anything DFPS requested and suggested he do in order to regain custody of N.S.H.

N.S.H. testified by deposition.  She stated she had been with a foster family for over a year, liked where she is living, felt she was being taken good care of, and was in a place where she felt safe.  She testified she wanted to live where she was Aright now,@ because she loved  the people, they were nice, and Ait=s a lot better of a place than where [she] was before.@

According to N.S.H., before she went into DFPS=s care, it was Patricia who really took care of her.  If she became ill when she was with Mikel, he would call Patricia and ask her to send money.  N.S.H. did not remember going to a doctor with her father.  Mikel would also ask AAunt Libby,@ Patricia=s sister, for money.  When Patricia and Libby said Ano,@ Mikel would continue asking until he got his way.

N.S.H. said she knew what it looked like when someone was using drugs, and she had seen Mikel act like that.  She saw Mikel in a closet one time holding a pipe up to his mouth.  She described another incident when he used drugs in a motel bathroom, and Ahe would come out and he would be all calm and he would get into everything and take it apart and the room would be a mess.@

N.S.H. thought Acrack@ was green in color and that people rolled it up in a cigarette and smoked it.^[6]  She had seen Mikel or someone in the house smoke it, and it was what Sherry mostly would roll up.

N.S.H. did not think she had seen a white powder when she was living with Patricia, but added she would always hear Mikel Asay it=s something like a rock or something.@  She said it was Apowdery kind of, but it wasn=t, like, powder.@  She thought the rock was white.  One time, in a closet in their apartment, she saw Mikel and Sherry use the rock in a pipe.  When asked if Mikel smoked the rock more than one time, N.S.H. answered she saw them only twice because he smoked in the bathroom, but she could hear them, and  it sounded like a A>shishhh= kind of noise.@

N.S.H. recalled Mikel used to drink beer, but then he stopped.  She thought he stopped because he started to get sick from it.  When Mikel drank a lot, he acted really angry if he did not get his own way.  N.S.H. said it made her feel scared when Mikel was drinking or using drugs because she did not know what was going to happen next.  Sometimes Patricia would start crying and N.S.H. would go to her.

N.S.H. stated Mikel would threaten Patricia, but she had not seen him hit her.  His threats frightened her.

At the time of the deposition, N.S.H. weighed ninety-three pounds.  She had previously weighed 160 pounds.  She stated if felt good to lose the weight, and her foster mother had helped her the most to do so.  N.S.H. said her foster mother told her she was proud of her, and that made her feel good.

According to N.S.H., the people with whom she was living would like to adopt her.  When asked how she would feel about that, she responded, AI=d feel C fine.@  She said she loved the people with whom she was living and did not want to visit Mikel because she was afraid to.  She stated she was scared because Mikel might become angry and she did not want this to happen because she was not scared anymore and did not want to be scared again.  She also described the day DFPS took her into custody and how, when asked whether she wanted to go to Mikel, she said, Ano,@ because she was afraid of him and was tired of all the fighting, drugs, and everything.   N.S.H. would like to tell Mikel to stop drinking and doing drugs because she Awanted to have a regular family, rather than being put back and forth through places.@  Once she asked Mikel to stop drinking, and he replied, AI like my beer, and I like my pot.@

N.S.H. said, even if Mikel stopped drinking and was not with Sherry, she did not want to see him because she still thought he would be angry and she would be afraid.  She stated she knew what Aterminate@ means: that Mikel would have Ano rights of seeing me or anything like that.@  When asked whether she wanted that to happen, she stated, AYes.  I still love him and all; but, yes, I want that to happen.@  She did not think he would be a different person.

The trial court charged the jury:

For the parent rights of the father Mikel . . . , to be terminated at least one, but not all of the following ground(s) for termination must be proven by clear and convincing evidence for Mikel . . . as to the child:

The father knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

OR

The father failed to support the child in accordance with the father=s ability during a period of one year ending within six months of the date of the filing of the petition;

AND

By clear and convincing evidence that:

Termination of [Mikel=s] parental rights would be in the best interest of the child.

The jury found Mikel=s parental rights should be terminated, and the trial court so decreed.  Mikel now appeals, challenging the legal and factual sufficiency of the evidence and the trial court=s denial of his motion for continuance.

Discussion

I.        Legal and Factual Sufficiency of the Evidence to Support Termination of Mikel=s Parental Rights

A.  Standard of Review

In his first three points of error, Mikel challenges the legal and factual sufficiency of the evidence to support the involuntary termination of his parental rights.  A court can order involuntary termination of parental rights only on a showing of clear and convincing evidence.  Tex. Fam. Code Ann. ' 161.001 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).  AClear and convincing evidence@ means Athe measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.@  Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d at 264.

When reviewing factual findings required to be made by clear and convincing evidence, we apply a standard of review that reflects this burden of proof.  Id.  In evaluating the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true.  In re J.F.C., 96 S.W.3d at 265B66.  We assume the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.  Id. at 266.

In a factual sufficiency review, we must also determine whether a factfinder could reasonably form a firm belief or conviction about the truth of the allegations.  Id.  We should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.  Id.  If, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not have reasonably formed a firm belief or conviction, then the evidence is factually insufficient.  Id.

B.  Analysis

1.  Parental Acts

In Texas, to terminate the parent‑child relationship, the factfinder must find by clear and convincing evidence both that (1) the parent committed one or more acts specifically named in the Texas Family Code as grounds for termination and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. ' 161.001; In re U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  In the present case, the jury was instructed it could find Mikel=s parental rights should be terminated if either (1) Michael knowingly placed or knowingly allowed N.S.H. to remain in conditions or surroundings which endangered her physical or emotional well-being (Asubsection D finding@)  or (2) he failed to support N.S.H. in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition (Asubsection F finding@).  See Tex. Fam. Code Ann. ' 161.001(1)(D), (F).

In his first point of error, Mikel challenges the legal and factual sufficiency of the evidence to support a subsection D finding.  In his second point of error, he challenges the legal and factually sufficiency of the evidence to support a subsection F finding.  We turn now to to the sufficiency of the evidence to support a subsection D finding.

Under subsection (D), one examines evidence related to the environment of the child to determine whether the environment was the source of endangerment to the child=s physical or emotional well‑being.  In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.CFort Worth 2003, no pet.).^[7]  To endanger means to expose to loss or injury or to jeopardize.  Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  It is not necessary the endangering conduct be directed at the child or that the child actually suffer injury.  Id.

Although the focus in subsection D is on the child=s environment, a parent=s conduct in the home can create an environment that endangers the physical and emotional well‑being of a child.  J.T.G., 121 S.W.3d at 125.  For example, a parent=s abusive or violent conduct or that of another resident of a child=s home may produce an environment that endangers the child=s physical or emotional well‑being.  Id.  A parent=s or caregiver=s illegal drug use and drug‑related criminal activity may also support the conclusion the child=s surroundings endanger her physical or emotional well‑being.  Id.

Under subsection D, the parent must be aware of the endangering environment.  See In re B.S.T., 977 S.W.2d 481,485 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (holding there was no evidence to support termination under subsection D because there was no evidence of the father=s knowledge of the conditions in which his children were living); In re T.H., 131 S.W.3d 598, 603 (Tex. App.CTexarkana 2004, pet. denied) (stating, even if clear and convincing evidence supported trial court=s finding environment posed danger to child=s well-being, DFPS failed to show father knowingly placed or allowed child to remain in such an environment).  The parent, however, need not know with certainty the child is in an endangering environment; he need only be aware of the environment=s potential for danger.  See In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.CTyler 2003, no pet.) (stating it is sufficient the parent was aware of potential for danger to child in such environment and disregarded that risk); In re Tidwell, 35 S.W.3d 115, 119B20 (Tex. App.CTexarkana 2000, no pet.) (stating it is not necessary for mother to have had certain knowledge sexual molestation offense actually occurred; it is sufficient she was aware of potential for danger to children and disregarded risk by breaking agreement with court and placing and leaving children in that environment).

In light of the preceding case law, the following evidence supports a subsection D finding in the present case:

$                   Evidence of Mikel=s pattern of illegal drug activities, including drug use in N.S.H.=s presence, once permitting N.S.H. to be with him in the car when he went to purchase crack cocaine, purchasing marijuana on several occasions while N.S.H. was with him, and responding to N.S.H.=s request he quit drinking by telling her he liked his beer and he liked his pot;

$                   Evidence of Mikel=s abuse of alcohol,  including drinking beer on a daily basis and in N.S.H.=s presence, acting Areally mad@ when he drank a lot; and responding, as he did to N.S.H.=s request he quit drinking;

$                   Evidence of Mikel=s threats and physical abuse, including hitting N.S.H. once Apretty hard on the head,@ screaming at her and verbally abusing her, hitting Patricia a couple of times, putting a knife to Patricia=s throat, and telling Patricia he would use a pistol but for N.S.H.=s presence;

$                   Evidence of N.S.H.=s awareness of the preceding conduct, her testimony she was afraid when Mikel drank or used drugs because she did not know what would happen next, and her testimony she was afraid of him and was tired of all the fighting, drugs, and everything; and

$                   Evidence of Mikel=s criminal assaults, including a conviction for an assault committed after N.S.H. came into DFPS=s care.

Given this evidence, a reasonable trier of fact could have formed a firm belief or conviction Mikel knowingly placed or knowingly allowed N.S.H. to remain in conditions or surroundings which endangered her physical or emotional well-being.  There is also no disputed evidence such that a reasonable factfinder could not have resolved that disputed evidence in favor of a subsection D finding.  The evidence is legally and factually sufficient to support a subsection D finding.  See J.F.C., 96 S.W.3d at 265B66.  Accordingly, we overrule Mikel=s first point of error.

Having concluded the evidence was legally and factually sufficient to support a subsection D finding, we need not address his second point of error challenging the evidence to support a subsection F finding.  See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (stating only one predicate finding under section 161.001(1) is necessary to support judgment of termination when there is also a finding termination is in child=s best interest).

2.  Child=s Best Interest

In his third point of error, Mikel contends the evidence is legally and factually insufficient to support a finding termination is in N.S.H.=s best interest as required under Texas Family Code section 161.001(2).  See Tex. Fam. Code Ann. ' 161.001(2).  There is a strong presumption that keeping a child with the natural parent serves the child=s best interest.  In re U.P., 105 S.W.3d at 230; see Tex. Fam. Code Ann. '' 153.131(b), .191, .252 (Vernon 2002).  DFPS had the burden to rebut this presumption.  In re U.P., 105 S.W.3d at 230.  To rebut this presumption, DFPS needed to present clear and convincing evidence of the natural parent=s present unfitness.  Id.

Factors that may overcome the presumption in favor of keeping a child with the natural parent include (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the person seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that indicate the existing parent‑child relationship is not appropriate; and (9) any excuse for the parent=s acts or omissions.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re U.P. at 230.  This list is not exhaustive, nor is evidence required on all nine factors.  Holley, 544 S.W.2d at 327; In re U.P. at 230.

The following evidence in the present case supports a finding that termination of Mikel=s parental rights is in N.S.H.=s best interest:

$                   The desires of the childCevidence showing N.S.H. knew what termination meant and wanted Mikel=s parental rights terminated;

$                   The present and future physical and emotional needs of the childCevidence showing (a) N.S.H. was afraid of Mikel and still feared him at the time of her deposition, (b) N.S.H. believes Mikel will not change, (c) Mikel has done nothing to alleviate those fears, but indicated to N.S.H. he did not want to quit drinking or smoking marijuana and (c) Mikel has not provided a stable living environment;

$                   The present and future emotional and physical danger to the childCevidence showing (a) Mikel becomes angry when he abuses drugs or alcohol, (b) he responded negatively to N.S.H.=s request that he quit drinking, (c) he did not participate in services to address his behavior after N.S.H. came into DFPS=s custody;

$                   The parental abilities of the person seeking custodyCevidence showing Mikel ceded care and support of N.S.H. to Patricia most of the time and would threaten to take N.S.H. away from Patricia if Patricia did not give him money;

$                   The programs available to assist those persons seeking custody in promoting the best interest of the childCevidence showing Mikel did not participate in the services available to him during the year and a half N.S.H. was in DFPS=s custody;

$                   Plans for the child by the individuals or agency seeking custodyCevidence showing DFPS has placed N.S.H. in a loving foster home, her placement is a potential adoptive home, and there is a specific adoptive interest in her; and

$                   Acts or omissions of the parent that indicate the existing parent‑child relationship is not appropriateCevidence showing N.S.H. is afraid of Mikel because when he is drinking or abusing drugs she does not know what is going to happen next.

In contrast, Mikel points to letters he wrote to N.S.H. after she was in DFPS=s custody.  In these letters, he expressed his love for her and his intent to change.

Having reviewed all the evidence in the light most favorable to a finding the termination of the parent-child relationship was in N.S.H.=s best interest, we conclude a reasonable factfinder could have formed a firm belief or conviction such a finding was true.  See J.F.C., 96 S.W.3d at 266.  We also conclude any disputed evidence is not such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.  See id. 

The evidence is legally and factually sufficient to support a finding that termination of the parent‑child relationship is in N.S.H.=s best interest.  We therefore overrule Mikel=s third point of error.

II.       Whether the Trial Court Abused its Discretion and Deprived Mikel of his Constitutional Rights when it Denied his Motion for Continuance.

A.  Procedural Background

In his fourth point of error, Mikel contends (1) that the trial court Aerred@ in denying his motion for continuance and (2) that proceeding to trial in his absence deprived him of his rights to confrontation, due process, and equal protection under the Constitutions of the United States and the State of Texas.  On November 15, 2004, the day set for trial, Mikel=s counsel filed a motion for continuance, comprising the following allegations:

1.  This case is presently set for jury trial on November 15, 2004.  This Court has previously extended the Court=s jurisdiction in ths case pursuant to '261.401(b).  This case is set for dimissal [sic] on or about December 22, 2004. [Mikel] would agree to waive his right to make a Motion for Dismissal under '263.402 and agrees not to complain about any delays created at his request.

2.  On November 2, 2004, [Mikel=s] mother, died in Knoxville, Tennessee.  Due to the unforseen death of his mother, Alma Gossett, Respondent was forced to expend of [sic] all his resources and has been unable to secure enough additional resources to return to Houston for trial.  As a Respondent to this suit, [Mikel=s] testimony at the trial of this cause relative to the Termination filed by [DFPS] is material.

3.  This is [Mikel=s] first request for continuance not sought solely for delay but that justice may be done.

WHEREFORE, PREMISES CONSIDERED, [Mikel] requests the Court to grant this Motion for Continuance, and continue the case for a sufficient period of time to allow for [Mikel=s] presence at trial.

The only sworn statement made part of the motion was the following statement by Mikel=s counsel:

I, the undersigned attorney of record, swear under oath that I have talked with [Mikel] and that my Legal Assistant has confirmed the death with the Berry Funeral Home in Knoxville, Tennessee and the remaining matters set forth in the Motion for Continuance are true and correct to the best of my knowledge and belief.

Mikel=s counsel presented no additional evidence at the hearing on the motion.  Counsel did inform the court he had discussed with Mikel the importance of Mikel=s presence at trial and the mandated time limits in the case.  Counsel stated Mikel was willing to go to trial and requested thirty days to get the resources to come to Houston.  According to counsel, Mikel was willing to agree to waive any right to claim dismissal for failure to prosecute in accordance with the guidelines if the case were not disposed by the dismissal date of December 22, 2004.  Counsel also indicated the court could Aput [the case] to trial and continue the setting,@ but then finish it after the deadline.  Counsel argued an additional thirty or sixty days would not make a significant difference regarding permanency with respect to the child.

DFPS responded, in part, that because there was another parent in the suit, Mikel=s claim he would waive the dismissal deadline did not eliminate the dismissal problem.  Counsel for the absent mother stated they had Ano position in this matter.@

The court then reviewed its docket for the rest of November and December 2004, listing at least thirteen preferential settings and a separate jury case.  Finally, the court stated, AIn part considering the court=s docket and consider[ing] that this motion was filed today on the date of trial, and given the length of time between the unfortunate circumstance regarding [Mikel=s] family, the Motion for Continuance is denied.@

B.  Standard of Review and Rules Applicable to Motions for Continuance

As Mikel correctly observes, we review denial of a continuance under an abuse-of-discretion standard.  See In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (in context of parental rights termination case, stating decision to grant or deny motion for continuance is within trial court=s sound discretion).  We cannot substitute our judgment for the trial court=s, but must determine only whether the trial court=s action was so arbitrary as to exceed the bounds of reasonable discretion.  Id.  A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles.  Id.  In the present case, the following reasons support the trial court=s discretion in denying Mikel=s motion: (1) the motion=s non-compliance with Texas Rules of Civil Procedure 251 and 252, (2) the timing of the motion in relation to the purported triggering event, and (3) the closeness of the mandatory dismissal date.

Texas Rules of Civil Procedure 251 and 252 govern continuances to secure testimony or the presence of a party.  See In Re Uvalle, 102 S.W.3d 337, 340B41 (Tex. App.CAmarillo 2003, no pet.) (stating continuances for purposes of securing testimony are governed by rules 251 and 252); In re H.R., 87 S.W.3d 691, 701 (Tex. App.CSan Antonio 2002, no pet.) (applying requirements of rule 251 to respondent mother=s motion for continuance based on mother=s alleged illness and victimization); Hawthorne v. Guenther, 917 S.W.2d 924, 929 (Tex. App.CBeaumont 1996, writ denied) (stating, when continuance is sought because of party=s unavailability, rules governing unavailability of witnesses apply).  Under rule 251, a court shall not grant a continuance Aexcept for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@  Tex. R. Civ. P. 251.  Under rule 252, if the basis of the application for a continuance is want of testimony, the applicant Ashall make affidavit that such testimony is material, showing the materiality thereof.@  Tex. R. Civ. P. 252.

Mikel does not contend a continuance was warranted by consent of the parties or operation of law.  Instead, he contends his motion was Asupported by affidavit in accordance with Tex. R. Civ. P. 251.@  We disagree.

Mikel sought a continuance based on his allegedly having spent all his resources on his mother=s funeral and the resultant lack of resources to return to Houston.  He further contended, because he was the respondent,  his testimony was Amaterial.@

The only sworn statement provided with the motion was that of Mikel=s counsel, who stated merely (1) he had spoken with Mikel, (2) his legal assistant had confirmed the death with a funeral home in Knoxville, and (3)  Athe remaining matters@ in the motion were Atrue and correct to best of [his] knowledge and belief.@  If counsel=s statement was intended to support Mikel=s allegation he lacked the resources to travel to Houston, the statement was insufficient because it is based on Aknowledge and belief,@ rather than counsel=s personal knowledge.  See Hawthorne, 917 S.W.2d at 930.

There is also nothing, either in the motion or in counsel=s statement, to indicate the nature of Mikel=s expected testimony.  Because Mikel did not state what he expected to prove by his testimony, he did not comply with rule 252.  See Lynd v. Wesley, 705 S.W.2d 759, 764 (Tex. App.CHouston [14th Dist.] 1986, no writ).

Because Mikel did not comply with the requirements of rules 251 and 252, we may presume the trial court did not abuse its discretion in denying his motion for continuance.  See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (stating, generally when movants fail to comply with rule 251=s requirement that motion for continuance be Asupported by affidavit,@ court presumes trial court did not abuse its discretion in denying the motion, although not applying presumption on facts of case); see also Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 98 (Tex. App.CHouston [1st Dist.] 1989, writ denied) (holding, in summary judgment case, because appellant did not comply with rules 166a(f), 251, or 252, the trial court did not abuse its discretion in denying motion for continuance).

In denying the motion, the trial court referred to Athe length of time between the unfortunate circumstances regarding [Mikel=s] family.@  Although Mikel=s mother allegedly died on November 2, 2004, Mikel did not file his motion until November 15, 2004, the day of trial.  A trial court does not abuse its discretion when it denies a motion for continuance on the ground the motion could have been filed earlier.  See Beutel v. Dallas County Flood Control Dist., 916 S.W.2d 685, 693 (Tex. App.CWaco 1996, writ denied) (holding trial court did not commit clear abuse of discretion in denying motion for continuance on ground that issue on which motion was based could have been brought before court several months earlier, rather than one week before trial).  Additionally, although counsel represented Mikel needed only thirty days to secure the funds to return to Houston, this representation was arguably speculative.  See Rodriguez v. Tex. Dep=t of Human Servs., 737 S.W.2d 25, 28 (Tex. App.CEl Paso 1987, no writ) (holding trial court did not abuse discretion in denying mother=s motion for continuance of termination proceeding when mother sought continuance until she returned for her first parole hearing in hopes of being released from prison, because matter was purely speculative).

Finally, the court had already granted one extension in the case, and under Texas Family Code section 263.401, the trial court was required to dismiss the case if it had not rendered a final order by December 22, 2004.  See Tex. Fam. Code Ann. ' 263.401 (Vernon 2002).  Although Mikel may have agreed to waive his right to object to the trial court=s not rendering a final order before the deadline for dismissal, the child=s mother did not.  See id. ' 263.402(b) (stating party to suit under chapter 263, who fails to make timely motion to dismiss suit or to make motion requesting court to render final order before deadline for dismissal under subchapter E waives the right to object to court=s failure to dismiss the suit).  Finally, as a party, DFPS could have sought a writ of mandamus to compel the trial court to comply with its duty to set a final hearing on a date that allowed the trial court to render a final order before the dismissal date.  See id. ' 263.304.

Given the preceding factors, we conclude the trial court did not abuse its discretion in denying Mikel=s motion for continuance.  

C.  Mikel=s Constitutional Claims

Mikel, however, contends denial of his motion for continuance violated his rights to due process, confrontation, and equal protection under the Federal and State Constitutions.^[8]  The right to confrontation applies only to criminal proceedings.  In the Interest of C.W., 65 S.W.3d 353, 354 (Tex. App.CBeaumont 2001, no pet.) (citing Tex. Dep=t of Pub. Safety v. Duggin, 962 S.W.2d 76, 81 (Tex. App.CHouston [1st Dist.] 1997, no pet.)), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).  Mikel does not explain how denial of a continuance implicated his right to equal protection and does not cite any authority in support of this claim.  Accordingly, Mikel has waived his equal protection claim.  See Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (stating issue not supported by authority or references to record is waived); see also Tex. R. App. P. 38.1(h) (stating Mikel=s brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record).  We turn therefore to Mikel=s due process claim.^[9]

There is no mechanical test for determining when the denial of a continuance is so arbitrary as to violate due process.  Guerrero‑Ramirez v. Tex. State Bd. of Med. Examiners, 867 S.W.2d 911, 916 (Tex. App.CAustin 1993, no writ) (citing Ungar v. Sarafite, 376 U.S. 575, 591, 84 S. Ct. 841, 850 (1964)).  Instead, a reviewing court must consider the circumstances presented to the trial judge at the time the request is denied.  Id.  (citing Ungar, 376 U.S. at 591, 84 S. Ct. at 850).

As discussed above, the circumstances presented to the trial court included the nonconformity of the motion, the timing and speculative nature of the request, and the impending dismissal deadline.  The third circumstance implicated the State=s interest in providing permanence and stability to the child.  See In re L.J.S., 96 S.W.3d 692, 693 (Tex. App.CAmarillo 2003, pet. denied) (stating Texas Family Code section 263.401 exists to facilitate permanence and stability in the lives of children subjected to DFPS involvement by limiting time within which DFPS can prosecute actions to terminate parental rights or have it designated conservator).  In light of these circumstances, denial of the continuance was not so arbitrary as to violate Mikel=s right to due process.^[10]

Conclusion

Having concluded the evidence was legally and factually sufficient to support a finding Mikel knowingly placed or knowingly allowed N.S.H.  to remain in conditions or surroundings which endangered her physical or emotional well-being, we overrule Mikel=s first point of error.  We therefore need not address his second point of error.  Having concluded the evidence was legally and factually sufficient to support a finding termination of Mikel=s parental rights was in N.S.H.=s best interests, we overrule Mikel=s third point of error.  Having concluded the trial court did not abuse its discretion in denying Mikel=s motion for continuance, we overrule his fourth point of error.  Accordingly, we affirm the decree of the trial court terminating Mikel=s parental rights to N.S.H.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 8, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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^[1]  The testimony varies about whether N.S.H. was two-and-a-half weeks, or two-and-a-half months, old when Mikel brought her to Patricia.

^[2]  DFPS filed its original petition in the 315th District Court.  The case was subsequently consolidated with case number 1995-30466 in the 311th District Court, which had continuing jurisdiction over N.S.H.

^[3]  See Tex. Fam. Code Ann. ' 263.401(a) (Vernon 2002).

^[4]  DFPS also introduced a judgment of conviction for an assault Mikel committed in June 2002.

^[5]  Abaneme testified N.S.H. weighed about 140 pounds when she first came into DFPS=s care.  At the time of trial she weighed ninety-two pounds, was back to normal, and was happy about herself.

^[6]  As DFPS argued in closing, N.S.H. appears to have confused Acrack@ with marijuana.

^[7]  In contrast, under subsection (E), the cause of the danger must be the parent=s or another=s actions or failures to act.  In re U.P., 105 S.W.3d 222, 236 n.7 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). 

^[8]  Mikel cites the following amendments to the United States Constitution: Amendment V (providing, ANo person shall be . . . deprived of life, liberty, or property, without due process of law@), Amendment VI (providing, AIn all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him@), and Amendment XIV, section 1 (providing, ANo state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws@).  He also cites the following sections of article I of the Texas Constitution:  section 3 (providing, AAll free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services@), section 3a (providing, AEquality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin@), section 10 (providing, AIn all criminal prosecutions the accused . . .shall be confronted by the witnesses against him@), section 13 (providing, AAll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law@), and 19 (providing, ANo citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land@).

^[9]  Mikel provides no argument or authority regarding the protection offered by the Texas Constitution or how that protection differs from the protection guaranteed by the U.S. Constitution.  Accordingly, we do not reach the state constitutional issue.  See Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992); Smith v. State, 993 S.W.2d 408, 415 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).

^[10]  These circumstances also distinguish the present case from the out-of-state cases Mikel cites.