COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00232-CV
IN THE INTEREST OF P.-L.M.M., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant E.F. (Mother) appeals the judgment terminating her parental
rights to her daughter P.-L.M.M.2 After a bench trial, the trial court found that
Mother had knowingly placed or knowingly allowed P.-L.M.M. to remain in 1 See Tex. R. App. P. 47.4. 2 The trial court also terminated the parental rights of P-L.M.M.’s father, J.M. (Father), but Father has not appealed the judgment. conditions or surroundings that endangered her physical or emotional well-being
and had engaged in conduct or knowingly placed P.-L.M.M. with persons who
engaged in conduct that endangered her physical or emotional well-being.3 The
trial court also found that Mother constructively abandoned P.-L.M.M.4 and that
Mother had been the cause of P.-L.M.M. being born addicted to alcohol or a
controlled substance.5 Finally, the trial court found that termination of Mother’s
parental rights would be in P.-L.M.M.’s best interest. Mother argues in five
issues that the trial court abused its discretion by denying Mother’s oral motion
for continuance and that insufficient evidence supports the trial court’s statutory
endangerment findings.6 We affirm.
II. Background
P.-L.M.M. was born April 6, 2011, and the Department of Family and
Protective Services (the Department) received a referral the next day that Mother
had admitted to using methamphetamine throughout her pregnancy. The
Department removed P.-L.M.M. on April 8, 2011. Department investigator Marilin
Jakubowske interviewed Mother at the hospital after P.-L.M.M.’s birth, and
Mother admitted to Jakubowske that she began using methamphetamine in 2003
3 See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2012). 4 See id. § 161.001(1)(N). 5 See id. § 161.001(1)(R). 6 Mother does not challenge the trial court’s best interest finding.
2 when she was sixteen and had used methamphetamine almost daily until
December 2010. Mother also told Jakubowske that her parental rights to her two
older children had been previously terminated because of her drug use. 7 In
addition, Mother served jail sentences in 2005 and 2010 for possession of
methamphetamine, and the Department presented evidence that Mother had
additional arrests for possession of hydrocodone, possession of a prohibited
weapon, and unauthorized use of a motor vehicle.
Mother told Jakubowske that she had entered residential drug treatment at
Nexxus in December 2010. Mother successfully completed the program and was
discharged on January 17, 2011. However, Mother admitted to Jakubowske that
she had relapsed and had used methamphetamine again in March 2011, one
month before P.-L.M.M.’s birth. Jakubowske’s testimony about Mother’s
admission was corroborated by Mother’s written statement on an
Acknowledgment of Substance Use Form.8
Department investigator Adela Rangel testified that Mother gave birth to
another child, M.M., on March 30, 2012. Rangel testified that the Department
had received another referral that Mother may have used drugs while pregnant
with that child.
7 One child was drug-exposed at birth. 8 On April 8, 2011, Mother completed the form and indicated that she had used methamphetamine from December 2010 until March 2011 while she was pregnant with P.-L.M.M.
3 Father testified that he was arrested in March 2010 for selling
methamphetamine and that he had sold methamphetamine for six years. Father
also testified that he and Mother were married on April 15, 2011.
Mother’s father, A.F., testified that Mother had a drug problem in the past.
A.F. testified that he and Mother were “under hard terms” and were “bumping a
little heads” because Mother’s two older children were in foster care.9 A.F. also
testified that while he had never seen Mother using drugs, he had “seen certain
things, aspects about [Mother] that look[ed] a little odd, so it gave [him] suspicion
to believe that maybe [she was] on something.” Mother’s stepmother, T.F.,
testified that she practically disowned Mother when Mother used drugs while
pregnant with P.-L.M.M. T.F. testified that she was concerned that Mother was a
drug user in the past but believed that Mother wanted to change and that she
had been working hard to change. However, Father testified that he was
concerned that Mother had given birth to at least three children after having used
methamphetamine while pregnant.
Department conservatorship worker Rita Thompson developed a service
plan for Mother that required Mother to attend two job fairs; participate in Ladder
Alliance, Workforce Solutions, and Goodwill Industries for job skills training; and
maintain steady legal employment. The service plan also required that Mother
participate in individual counseling, attend a parenting class, maintain weekly
9 A.F. used the phrase “foster care,” but Mother’s parental rights to her older children were terminated. Those children have also been formally adopted.
4 contact with Thompson, attend scheduled visitation with P.-L.M.M., maintain
housing, and refrain from criminal activity.
Thompson testified that Mother did not attend either job fair and that
Mother gave no explanation for her nonattendance. Mother made two
appointments for individual counseling but never attended. Mother also claimed
to have completed the parenting class, but Thompson received no
documentation of completion. Thompson testified that Mother also did not
complete job skills training, that Mother had not been employed during the
pendency of the case, and that Mother had not maintained weekly contact with
Thompson. Additionally, Thompson testified that there was a two-month period
in which Thompson had no contact with Mother and in which Mother did not
attend any scheduled visits with P.-L.M.M. Thompson testified that Mother
claimed she did not have transportation to attend visits during that time.
Thompson also testified, however, that she had made bus passes available to
Mother but that Mother had never asked for a bus pass and had never called to
complain about lack of transportation. Thompson also testified that she did not
know where Mother was currently living.
Thompson testified that Mother completed a drug and alcohol assessment
in June 2011. The assessment included a recommendation that Mother
participate in outpatient drug treatment, but Mother had not participated.
Thompson also testified that Mother had failed to comply with two random
urinalysis drug tests on August 23, 2011, and October 20, 2011.
5 The Department asked that the court terminate Mother’s and Father’s
parental rights and find that termination is in P.-L.M.M.’s best interest. P.-L.M.M.
lives in a foster-to-adopt home with parents who have already adopted P.-
L.M.M.’s half-siblings. Thompson testified that she saw no impediments to P.-
L.M.M.’s foster parents adopting P.-L.M.M. Thompson testified that, physically,
P.-L.M.M. is doing well; she is toddling and taking a few steps with assistance.
She is also learning how to play appropriately and has a “cute personality.”
The termination trial was held on April 4 and 9, 2012, and Mother did not
appear in court either day. Father testified that Mother was not in court because
she was fighting to keep her youngest child, one-week-old M.M., and that Mother
was letting Father try to gain custody of P.-L.M.M. because that is what Mother
believed was best for P.-L.M.M. Father testified that Mother was not coming to
court so that the Department could not easily take custody of M.M. Father also
testified that he did not know where Mother was and that he and Mother had
agreed that if Father did not know where Mother and M.M. were, Father would
not have to lie about it in court. Father testified that he knew the Department was
looking for M.M. and that he thought Mother was doing the right thing by not
attending the trial.
III. Denial of Motion for Continuance
6 In her first issue, Mother contends that the trial court erred by denying her
oral motion for continuance. We review a trial court’s ruling on a motion for
continuance for an abuse of discretion. See BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 800 (Tex. 2002). We do not substitute our judgment
for that of the trial court. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002)
(orig. proceeding). 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. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
The test is whether the trial court acted without reference to guiding rules or
principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). Generally,
when the movant fails to provide an affidavit in support of the motion, the
appellate court presumes that the trial court did not abuse its discretion in
denying the motion for continuance. Villegas v. Carter, 711 S.W.2d 624, 626
(Tex. 1986); Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215,
226 (Tex. App.—Fort Worth 2009, pet. denied), cert. denied, 130 S. Ct. 2061
(2010).
A motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, through consent of the parties, or by operation of law.
Tex. R. Civ. P. 251; see In re E.L.T., 93 S.W.3d 372, 375 (Tex. App.—Houston
[14th Dist.] 2002, no pet.). Here, Mother’s counsel made an oral motion for
7 continuance just before the termination trial began on April 4, 2012. 10 However,
the record does not contain a written motion for continuance or an affidavit. If a
motion for continuance is not made in writing and verified, it will be presumed
that the trial court did not abuse its discretion by denying the motion. See
Villegas, 711 S.W.2d at 626; E.L.T., 93 S.W.3d at 375. Because Mother did not
comply with rule 251, the trial court did not abuse its discretion by denying her
motion for continuance. See Villegas, 711 S.W.2d at 626; see also In re T.H.,
No. 02-07-00464-CV, 2008 WL 4831374, at *8 (Tex. App.—Fort Worth Nov. 6,
2008, no pet.) (mem. op.); In re T.D.N., No. 14-07-00387-CV, 2008 WL 2574055,
at *1 (Tex. App.—Houston [14th Dist.] June 26, 2008, no pet.) (mem. op.)
(holding trial court did not abuse its discretion by failing to grant oral motion for
continuance because appellant did not comply with rule of civil procedure 251).
Moreover, the trial court could have reasonably agreed with the Department’s
arguments in opposition to the oral motion for continuance that Mother had
adequate and proper notice of the trial date and that counsel’s unawareness of
Mother’s whereabouts was not grounds for a continuance. Accordingly, we
overrule Mother’s first issue.
10 Mother’s counsel requested a continuance because Mother was not in court.
8 IV. Sufficiency of the Evidence
A. Standards of Review
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) (West 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 R.R., 294 S.W.3d 213, 233 (Tex.
App.—Fort Worth 2009, no pet.).
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 subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163
9 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may
not be based solely on the best interest of the child as determined by the trier of
fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In
re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on
reh’g).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that at least one of the alleged
grounds for termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). We review all the evidence in the light most favorable to the finding and
judgment. Id. We resolve any disputed facts in favor of the finding if a
reasonable factfinder could have done so. Id. We disregard all evidence that a
reasonable factfinder could have disbelieved. Id. We consider undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
10 Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(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 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated subsection (D), (E), (N), or (R) of section 161.001(1). Tex. Fam.
Code Ann. § 161.001; 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.
B. Endangerment
Mother argues in her second and third issues that the evidence is legally
and factually insufficient to support termination under family code section
11 161.001(1)(D) and (E). Because the evidence related to each issue is
interwoven, we address Mother’s second and third issues together.
1. Applicable Law
“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under section 161.001(1)(D), it is necessary to examine evidence
related to the environment of the child to determine if the environment was the
source of the endangerment to the child’s physical or emotional well-being.
J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child. In
re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). For
example, parental and caregiver illegal drug use and drug-related criminal activity
support the conclusion that the child’s surroundings endanger the child’s physical
or emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San
Antonio 1998, pet. denied).
Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct
result of the parent’s conduct, including acts, omissions, or failures to act. See
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E).
Additionally, termination under (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. §
12 161.001(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at
533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being
may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at
533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
A mother’s use of drugs during pregnancy may amount to conduct that
endangers the physical and emotional well-being of the child. J.T.G., 121
S.W.3d at 125. Drug addiction and its effect on a parent’s life and ability to
parent may establish an endangering course of conduct as well. Id. at 125–26.
“To determine whether termination is necessary, courts may look to
parental conduct occurring both before and after the child’s birth.” In re M.E.-
M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied). The
factfinder may infer from past conduct endangering the child’s well-being that
similar conduct will recur if the child is returned to the parent. In re M.R.J.M., 280
S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).
2. Analysis
Mother argues that there is insufficient evidence that she endangered her
child because she did not appear at trial. She also argues that P.-L.M.M. did not
test positive for drugs at birth and that Mother’s relapse occurred “well before the
child’s birth.” Finally, Mother argues that her admission of methamphetamine
use during her pregnancy does not establish a voluntary, deliberate, and
conscious course of conduct.
13 The trial court, however, heard direct evidence of Mother’s extensive
history of methamphetamine use. Mother admitted that she had used
methamphetamine since age sixteen and that she had used methamphetamine
almost daily for seven years. While Mother successfully completed a drug
treatment program, she relapsed and admitted to using methamphetamine within
a month of P.-L.M.M.’s birth. Mother also served two jail sentences for
possession of methamphetamine and had her parental rights to her two older
children terminated because of her drug use. Moreover, Mother failed to comply
with requests to take two random drug tests in 2011 after removal of P.-L.M.M.
See J.T.G., 121 S.W.3d at 126–27 (holding mother’s drug use during pregnancy,
continued drug use after her children were removed, and failure to take
requested drug tests is evidence that supports section 161.001(1)(D) and (E)
findings); see also In re J.M., No. 02-08-00259-CV, 2009 WL 112679, at *4–5
(Tex. App.—Fort Worth Jan. 15, 2009, no pet.) (mem. op.) (holding that mother’s
drug use during pregnancy and drug use six to eight months before the
termination trial constituted legally and factually sufficient evidence of
endangerment under section 161.001(1)(E)). In addition, Mother married Father
shortly after P.-L.M.M. was born. He testified that he was arrested in 2010 for
possession of methamphetamine and that he had been selling
methamphetamine for six years. See In re K.B., No. 02-09-00441-CV, 2010 WL
4028107, at *11 (Tex. App.—Fort Worth Oct. 14, 2010, no pet.) (mem. op.)
(finding mother’s long history of illegal drug use and moving into a home with a
14 drug dealer supported a termination finding under section 161.001(1)(D) and
(E)).
Applying the appropriate standards of review, we hold that the evidence is
legally and factually sufficient to support the trial court’s findings that Mother
engaged in conduct that endangered P.-L.M.M.’s physical or emotional well-
being and that Mother knowingly placed or knowingly allowed P.-L.M.M. to
remain in conditions or surroundings that endangered P.-L.M.M.’s physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D), (E); see also
H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573. We thus overrule
Mother’s second and third issues.11
V. Conclusion
Having overruled each of Mother’s dispositive issues, we affirm the trial
court’s judgment.
ANNE GARDNER JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: November 1, 2012
11 Along with a best interest finding, a finding of only one ground alleged under 161.001(1) is sufficient to support a judgment of termination. In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We thus need not address Mother’s fourth and fifth issues. See id.; see also Tex. R. App. P. 47.1.