Michael Conti and Rainbow Conti v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: January 27, 2011
• Docket: 01-10-00185-CV
• Status: Published

Opinion

Opinion issued January 27, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00185-CV

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MICHAEL CONTI and RAINBOW CONTI, Appellants

V.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

On Appeal from the 306th Judicial District Court

Galveston County, Texas

Trial Court Case No. 08-CP-0097

MEMORANDUM OPINION

The trial court rendered judgment terminating the parental rights of appellants, Rainbow and Michael Conti, who are the biological parents of E.C.[1]  In four issues the Contis assert that the evidence is legally and factually insufficient to support termination of their parental rights, that the trial court abused its discretion when it denied their motion for a continuance, and that the trial court allowed improper closing arguments that implied Michael was convicted of sexually abusing a child.  We conclude that the Contis failed to challenge all grounds alleged for termination of their parental rights, that the evidence is legally and factually sufficient to support a finding that termination is in the best interest of E.C., and that the trial court did not abuse its discretion by denying their motion for continuance.  We also conclude that the Contis failed to preserve portions of their challenge to the closing arguments and that regarding those that were preserved, the trial court did not abuse its discretion in overruling this objection.  We affirm.

Background

          After living together for a number of years, Michael and Rainbow were married in the summer of 2008.  They had one child together, E.C., who was born in September 2000.  Rainbow had two children from previous relationships, M.S. and D.C.  Michael also had two children from a previous relationship, but they lived with him only during the summer and around Christmas.

          According to M.S., when she was about seven years of age, Michael began treating her in a sexually inappropriate way.  M.S. told Rainbow, who spoke to Michael.  For a period of time, the activity stopped.  M.S. also testified that after Rainbow and Michael’s wedding, Michael told M.S. that he had sexual feelings for her.  M.S. said that Michael touched her buttocks, breasts, and female sexual organ.  Michael also made her watch him give himself an orgasm on various occasions.  M.S. began trying to avoid being alone with Michael.  M.S. also stated that Michael would become angry if she refused sexual acts and that he would make her perform chores.  Michael also told M.S. that if she did not do the things he wanted, he would move away from her family, leaving Rainbow unable to support M.S. and her siblings.

          M.S. told Rainbow about the continuing abuse.  Rainbow responded by initiating family conferences to discuss the situation, but Rainbow did not believe M.S. and did not report the conduct to police or to other proper authorities.  Rainbow allowed Michael continued access to the children despite M.S.’s report of sexual abuse.  At some point, Michael and Rainbow offered to let M.S. watch them have sex.

M.S. told a friend about the abuse, and the friend told a school counselor.  The counselor then told another counselor, Natalie Uranga, who spoke with M.S.  When Uranga spoke with her, M.S. was very closed off and denied the allegations of abuse.  Uranga filed a report with the Texas Department of Family and Protective Services (“DFPS”).

Hector Garcia, special investigator for DFPS, worked with Jasmine Paddio on the case.  Garcia and Paddio interviewed M.S. at her high school, where she confirmed the allegations against Michael.  After interviewing M.S., Garcia and Paddio met with Rainbow at her work to discuss the allegations.  Rainbow told the investigators that she knew about the abuse but that they did not need any help.  After speaking with Rainbow, Michael joined the interview.  He told the investigators that the allegations were true, that he was sorry for what he had done, and that he was willing to “get help” in order to keep his family together.  In the interviews, M.S., Rainbow, and Michael each separately told the DFPS interviewers that they were “going to work it out as a family.” 

Garcia testified that Michael telephoned him a few days after the interview.  Sounding upset, Michael told Garcia that he wanted to kill himself.  Michael said that he wanted to tell M.S. that he was sorry.  When Garcia informed him that anything he said could be used against him in court, Michael responded that Garcia was acting too much like a police officer, and Michael hung up.

Michael took M.S. with him to speak with Matthew Parker, a youth pastor at their church.  In the conversation, Michael told Parker that he and Rainbow were having marital problems.  Michael mentioned that he discussed his problems, including sexual ones, with M.S.  After Michael left to go to a DFPS interview, M.S. remained with Parker, who brought a female counselor into the room.  M.S. told them about the abuse.  At trial, Parker testified he had seen some improvement in M.S. since she moved out of the Contis’ house.

          After learning of the abuse allegations, DFPS required the children to be placed elsewhere.  The Contis chose to place their children with Lori and Bradley Warren, who have three children.  The Contis and the Warrens were friends primarily because their sons were friends.  Over the years, Rainbow and Lori had grown closer.

          At trial, Lori testified that Michael frequently called M.S. when M.S. was on church trips.  She also testified that Michael frequently inquired about M.S.’s menstrual cycle.  Lori expressed the desire to keep the children in her home permanently, including adopting E.C.  Lori testified that they could provide a stable home and financially provide for the children.  She explained that she worked part time at a number of jobs, they earned money from a rental property, and Bradley received unemployment compensation.

          The trial court ordered the Contis to take certain actions to obtain the return of E.C.  One such action was to provide a safe and stable home for E.C.  Rainbow admitted on cross-examination that if Michael had abused M.S., she would not have provided a safe and stable home for her children.

          There was also testimony that E.C. should not remain with the Contis.  A DFPS worker assigned to the case testified that because Rainbow did not believe M.S.’s statements of abuse by Michael, Rainbow would not be able to protect E.C.  Parker, the youth pastor, stated that he was concerned for E.C.’s safety and welfare because of what had happened to M.S.  Lori expressed similar concerns.

The Contis’ trial attorney presented a number of witnesses, including family members and people who had worked alongside Michael in his home office.  Those witnesses testified that they had not noticed unusual behavior between Michael and M.S. and that they felt comfortable with E.C. returning to live with the Contis.

          During trial, Michael admitted that in 1990, he had been placed on deferred adjudication for indecency with a child.  He testified that M.S. made up the allegations of sexual abuse because she was mad that he would not let her spend the night at a friend’s house.  Michael explained that he did not allow the sleepover because the friend was bisexual, an allegation M.S. denied.  Additionally, Michael testified that M.S. downloaded sexual additions to her “Sims” computer game.  However, M.S. claimed that Michael downloaded the additions.  Michael denied that he said he was sexually attracted to M.S., claiming that after she went through a break up, he tried to cheer her up by telling her that if he were a young person, he would find her attractive.

Sufficiency of the Evidence

          In their third issue, the Contis challenge the legal and factual sufficiency of the evidence to support two of the three grounds found by the trial court under section 161.001(1) and that termination of their parental rights was in the best interest of E.C.  See Tex. Fam. Code Ann. § 161.001(1) (West Supp. 2009).

          A.      Law Concerning Termination of Parental Rights

A parent’s rights to the “companionship, care, custody, and management” of his or her child 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); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).  A termination decree is complete, final, and irrevocable, and it divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  Termination proceedings should be strictly scrutinized, and the involuntary termination statutes should be strictly construed in favor of the parent.  Id.  However, “the rights of natural parents are not absolute,” and “[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.”  In re A.V., 113 S.W.3d 355, 361 (Tex. 2003).  Recognizing that a parent may forfeit parental rights by acts or omissions, the primary focus of a termination suit is the protection of the best interests of the child.  Id. 

Proceedings to terminate parental rights under the Texas Family Code require proof by clear and convincing evidence.  Tex. Fam. Code Ann. § 161.001; In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).  Clear and convincing evidence is “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.”  J.O.A., 283 S.W.3d at 344.  When the legal sufficiency of the evidence is challenged, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true.  Id. (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).  To give appropriate deference to the factfinder’s conclusions, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.  Id.  A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.  Id.  This does not mean that a court must disregard all evidence that does not support the finding.  Id.  Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.  Id.  If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.  Id. at 344–45.

When the factual sufficiency of the evidence is challenged, only then is disputed or conflicting evidence under review.  Id. at 345.  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, then the evidence is factually insufficient.  Id. (citing J.F.C., 96 S.W.3d at 267). 

The Contis challenge the trial court’s finding that termination of their parental rights is in the best interest of E.C.  Section 161.001 of the Texas Family Code requires proof of two elements.  First, the party must prove that one or more acts or omissions enumerated in one or more of the subsections of section 161.001(1) occurred.  See Tex. Fam. Code Ann. § 161.001(1); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); Liu v. Dep’t of Family & Protective Servs., 273 S.W.3d 785, 790 (Tex. App.—Houston [1st. Dist.] 2008, no pet.).  Second, the party must prove that termination of the parent-child relationship is in the best interest of the child.  See Tex. Fam. Code Ann. §161.001(2); J.L., 163 S.W.3d at 84; Liu, 273 S.W.3d at 790.  Termination may not be based solely on the best interest of the child.  Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Liu, 273 S.W.3d at 790. 

          B.      Section 161.001(1)

Under section 161.001(1), the trial court found three grounds for terminating parental rights to E.C.  The trial court ordered termination of the Contis’ parent-child relationship based on the jury’s finding by clear and convincing evidence that the Contis (1) under section 161.001(1)(D), knowingly placed or knowingly allowed E.C. to remain in conditions or surroundings that endangered the physical or emotional well-being of E.C., (2) under section 161.001(E), engaged in conduct or knowingly placed E.C. with persons who engaged in conduct that endangered the physical or emotional well-being of E.C., and (3) under section 161,001(1)(O), failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of E.C., who had been in the permanent or temporary managing conservatorship of DFPS Services for not less than nine months as a result of E.C.’s removal from the Contis under Chapter 262 for the abuse or neglect of E.C.  Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O).

Here, the Contis have not challenged the sufficiency of the evidence to support termination under subsection (O).  Because the judgment could be upheld on this unchallenged ground, we must uphold the judgment concerning the statutory grounds for termination, and we do not address the Contis’ challenges to the sufficiency of the evidence under subsections (D) and (E).  See Fletcher v. Dep’t of Family &Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 433–34 (Tex. App.—El Paso 2004, no pet.)).

C.      Best Interest Finding

          1.       Applicable Law for Best Interest of the Child

Prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.  See In re M.C.T., 250 S.W.3d 161, 170 (Tex. App.—Fort Worth 2008, no pet.) (citing Tex. Fam. Code Ann. § 263.307(a) (West 2008)).  There is also a strong presumption that a child’s best interests are served by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  Nevertheless, while parental rights are of constitutional magnitude, they are not absolute.  See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).  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.  Id. 

In Holley v. Adams, the Texas Supreme Court provided a nonexclusive list of factors that the trier of fact may use in a termination case to determine the best interest of the child.  544 S.W.2d 367, 371–72 (Tex. 1976).  These factors include (a) the desires of the child, (b) the emotional and physical needs of the child now and in the future, (c) the emotional and physical danger to the child now and in the future, (d) the parental abilities of the individuals seeking custody, (e) the programs available to assist these individuals to promote the best interest of the child, (f) the plans for the child by these individuals or by the agency seeking custody, (g) the stability of the home or proposed placement, (h) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (i) any excuse for the acts or omissions of the parent.  Id.  These factors are not exhaustive, and there is no requirement that the petitioner prove all factors as a condition precedent to parental termination.  See C.H., 89 S.W.3d at 27; Adams v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 

The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interests of the child.  C.H., 89 S.W.3d at 28; L.M., 104 S.W.3d at 647.  Evidence of just one factor may suffice to support a finding that termination is in the best interest of the child.  See C.H., 89 S.W.3d at 27.  However, termination of the parent-child relationship is not justified when the evidence merely shows that a parent’s failure to provide a more desirable degree of care and support of the child is due solely to misfortune or lack of intelligence or training and not to indifference or malice.  Clark v. Dearen, 715 S.W.2d 364, 367 (Tex. App.—Houston [1st Dist.] 1986, no writ). 

          2.       Analysis

We address the nine factors provided in Holley to determine whether the evidence is legally and factually sufficient to support the finding that termination of Rainbow and Michael’s parental rights is in the best interest of E.C.  Holley, 544 S.W.2d at 371–72.

                   a.       Desires of Child

E.C., who was nine years of age at the time of trial, did not testify at trial.  However, there is evidence demonstrating her desire to live with the Contis.  In DFPS’s exhibits 1, 4, 5, 6, and 7, E.C. made illustrations and wrote about how she loved her parents and wanted to come home.  Additionally, during Rainbow’s weekly visits with the children, Lori testified that E.C. always wanted to be on Rainbow’s lap.  Lori also testified that E.C. missed her parents and cried a lot when she first came to live with her.  This factor weighs against termination of the Contis’ parental rights.

                   b.      Emotional and Physical Needs Now and in the Future

The Contis have provided for the physical needs of E.C. by providing food and shelter.  They have also emotionally bonded with E.C.  There is evidence that E.C. is having emotional difficulty because of her separation from her parents.  As discussed above, she has communicated that she misses her parents and wants to return home. 

Michael has a prior deferred adjudication for indecency with a child, and he sexually abused M.S., beginning when she was seven years of age.  Rainbow disbelieved M.S., refusing to remove her from the abuse.  The home environment provided by the Contis was sexually inappropriate toward M.S., which would suggest that E.C.’s emotional and physical needs may be endangered in the future by exposure to similar conduct.

Lori testified that she provides shelter, food, and emotional support to E.C.  Lori testified that all six of the children treat each other like siblings.  By remaining with the Warrens, E.C. has the opportunity to continue living with her siblings and avoid potential abuse from Michael.  The second factor weighs in favor of termination of parental rights.

c.       Emotional and Physical Danger Now and in the Future

Although the record does not show any evidence of physical or emotional abuse toward E.C., there is evidence that Michael physically and emotionally abused E.C.’s sibling, M.S.  When asked if she would be concerned for E.C.’s safety if returned to the Contis, Lori answered “Yes.  [E.C.] is going to grow up . . . .  What’s going to not stop this from happening again[?]”

The Contis presented testimony from Peter Gorman, William Hobson, and Sandy Griffin that they believed E.C. would be safe if she returned to the Contis.  All three witnesses spent time around the Contis because they worked out of a part of the Contis’ house.  From 2004 to 2008, Gorman worked out of the Contis’ house.  From early 2004 to 2006, Griffin worked out of the Contis’ house; however, she testified that she had no personal knowledge whatsoever about what was going on in the Contis’ home from 2008 to 2010.  Hobson also worked out of part of the Contis’ house from 2004 until the time of trial because he worked for Gorman.  Hobson testified that he did not know a whole lot about the Contis’ personal life.  The offices in which Gorman and Griffin worked, which Gorman made by converting an old breezeway and game room, were located on one end of the Contis’ 6,500 square foot house, and the Contis lived in the other end.  Although these witnesses did not see any abuse, their distance from the family makes their testimony inconclusive.

The evidence concerning Michael’s abuse of M.S. suggests he also poses a danger to E.C.  See C.H., 89 S.W.3d at 28.  Evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue that behavior in the future.  Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—Fort Worth 2007, no pet.); see also In re M.G.M., 163 S.W.3d 191, 202 (Tex. App.—Beaumont 2005, no pet.).  By living with the Warrens, E.C. will not be exposed to emotional and physical danger from Michael now and in the future.  The third factor weighs in favor of termination of the Contis’ parental rights.

d.      Parenting Abilities

Although her work as a childcare worker for fifteen years shows that she has the capacity to parent E.C., Rainbow’s conduct in knowingly permitting the sexually inappropriate circumstances shows her parenting abilities are inadequate.  Rainbow testified that she never asked Michael to leave their home during DFPS’s investigation so that she could continue living with her children.  Despite Michael’s offer to leave the house so that she could remain with her children, Rainbow chose to remain with Michael instead of her children.  Rainbow stated that she did not believe M.S.’s statements about the abuse and that she blamed M.S. for what happened to her family.  This choice to remain with Michael caused the children to be removed from the home and placed with the Warrens.

Additionally, Michael had a deferred adjudication for indecency with a child.  That, in combination with M.S.’s testimony describing his abuse of her, demonstrates his lack of parenting abilities for E.C.  This factor weighs heavily in favor of termination of the Contis’ parental rights.

e.       Programs Available to Assist in Care of E.C.

The Contis contend the Warrens do not have the financial resources to care for the children.  Lori, however, testified that the State assists in paying for E.C.’s daycare.  Additionally, Lori stated that if she adopts E.C., there would be money to provide for her daycare and her continued therapy until she turned 18.  The State would also pay to financially assist Lori for child-related expenses and for E.C.’s college education.  The State’s financial assistance will help the Warrens care for E.C.

In contrast, there is very little evidence about the Contis’ finances.  Michael appears to have a stable job, based on the testimony of individuals who said they worked at Michael’s home office.  Rainbow was recently laid off from her job.  The Contis claimed their resources were inadequate to hire a lawyer.  Nothing in the record suggests there would be any program to care for E.C. if she remained with the Contis.  The fifth factor weighs neither in favor of nor against termination of the Contis’ parental rights.

f.       Plans for the Child

Lori testified that she would like to adopt E.C. and provide her with a stable home with E.C.’s siblings.  Therefore, the record shows that the Warrens have a plan for E.C. if the parental rights of the Contis are terminated.

If the parental rights of the Contis were not terminated, Rainbow planned to bring E.C. back to the home with Michael, despite the allegations about Michael made by her other daughter, M.S.  Therefore, the sixth factor weighs in favor of termination of the Contis’ parental rights.

       g.       Stability of Home

The goal of establishing a stable, permanent home for a child is a compelling state interest.  In re C.E.K., 214 S.W.3d 492, 498 (Tex. App.—Dallas 2006, no pet.).  The record shows the Contis did not provide a stable home for M.S. because M.S. was sexually abused by Michael and the Contis asked M.S. to watch them engage in sexual acts.  Rainbow did not report the abuse to the police, and she continued to allow Michael access to the children despite M.S.’s report of abuse.  E.C. lived in the same house with them in this unstable environment.

Although there is some evidence of financial strain, the record shows that the Warrens have provided a stable home for E.C., who will be able to stay with her siblings by living with the Warrens.  The seventh factor weighs in favor of termination of the Contis’ parental rights.

h.      Acts or Omissions of Parent that May Indicate Existing Parent-Child Relationship is Not a Proper One, and

i.        Any Excuse for Acts or Omissions of Parent

Michael sexually abused M.S., and Rainbow failed to adequately protect M.S. from the abuse.  Rather than remain with E.C., Rainbow chose to live with Michael, which required E.C. to move in with the Warrens. 

The Contis contend that M.S. apologized for making the allegations and stated that nothing happened.  However, M.S. denies that she withdrew her claims of abuse.  The Contis also contend that DFPS misconstrued statements made by Michael and used it against him.  Claiming he was attempting to console her after a break up, Michael claims he told M.S. that he would find her attractive if he were a young man.  However, a number of other witnesses support the statement that Michael told M.S. he was sexually attracted to her, and M.S. testified as to this meaning of the statement. 

The eighth and ninth factors weigh in favor of terminating the Contis’ parental rights.  See Castorena v. Tex. Dep’t of Family & Protective Servs., No. 03-02-00653-CV, 2004 WL 903906, at *9 (Tex. App.—Austin Apr. 29, 2004, no pet.) (mem. op.) (noting that in termination proceedings, “[a]lthough evidence of past misconduct or neglect alone may not be sufficient to show present unfitness, the factfinder may permissibly infer that an adult’s future conduct may well be measured by recent deliberate past conduct as it relates to the same or a similar situation”).

          3.       Conclusion of Analysis

In this case, one factor weighs against termination:  the desire of the child.  However, this alone is not enough to allow E.C. to remain in the abusive environment.  As the Texarkana court of appeals states: 

Although a child’s love of his natural parents is a very important consideration in determining the best interests of the child, it cannot override or outweigh the overwhelming and undisputed evidence showing that the parents placed or allowed the child to remain in conditions, and engaged in conduct or placed the child with persons who engaged in conduct, which endangers the physical and emotional well-being of the child.  The child’s love of his parents cannot compensate for the lack of an opportunity to grow up in a normal and safe way equipped to live a normal, productive, and satisfying live.

In re W.S.M. 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.).  Conversely, just one factor can suffice to warrant termination.  See C.H., 89 S.W.3d at 27.  Here, seven of the factors weigh in favor of concluding that termination of the Contis’ parental rights is in the best interest of E.C. 

It is not in E.C.’s best interest to place her in a sexually abusive environment.  E.C. is about the same age as M.S. was when Michael began abusing M.S.  Despite M.S. telling her about the abuse, Rainbow disbelieved M.S., failed to report it, failed to protect E.C. by making Michael move out of the house, and chose to live with Michael instead of M.S. and E.C.  Michael’s deferred adjudication for indecency with a child and his sexual abuse of M.S. show he is unfit to be a parent to E.C.  The Warrens have offered to adopt E.C. and let her live in their home with her siblings.  Although they have some financial strains, the Warrens would benefit from resources provided by the State to help take care of E.C.

In light of all the evidence, the jury court could have reasonably formed a firm belief or conviction that termination of the Contis’ parental rights was in E.C.’s best interest.  Accordingly, we hold the evidence is both legally and factually sufficient to support the trial court’s finding that termination of the Contis’ parental rights was in the best interest of E.C.  See In re L.C., 145 S.W.3d 790, 799–800 (Tex. App.—Texarkana 2004, no pet.) (evidence legally and factually sufficient to support best interest finding for termination of mother’s parental rights to five children where evidence included that mother disbelieved one child’s report of sexual abuse by stepfather and failed to provide emotional support for abused child); In re A.B., 125 S.W.3d 769, 777–78 (Tex. App.—Texarkana 2003, pet. denied) (parent’s denial of sexual abuse and failure to provide emotional support for abused child, such as participating in recommended counseling, supported trial court’s finding that termination was in child’s best interest); In re J.T., No. 13-08-00652-CV, 2009 WL 2077184, at *14 (Tex. App.—Corpus Christi July 16, 2009, no pet.) (mem. op.) (holding that evidence was sufficient to support trial court’s best interest finding where mother allowed child to be in contact with individual who had physically abused her, mother was not capable of caring for child on her own, mother admitted at trial she had not found stable employment, and child was doing well in her current placement).

We overrule the Contis’ third issue.

Motion for Continuance

In their first two issues, the Contis contend that the trial court abused its discretion when it denied their motion for continuance.  The Contis contend that this was error because their counsel should have been provided with extra time to prepare since he was retained only three days prior to trial.  Additionally, they contend that they should have been provided with a continuance until Michael’s criminal trial was completed so that he did not have to decide between invoking his Fifth Amendment right against self-incrimination and defending himself against the State’s request to terminate his parental rights. 

A.        Applicable Law

The decision to grant or deny a motion for continuance is within the trial court’s sound discretion.  See Tex. R. Civ. P. 251.  We will not disturb the trial court’s denial of a motion for continuance except for a clear abuse of discretion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.—Houston [1st Dist.] 1989, writ denied).  This court cannot substitute its judgment for the trial court’s, but must only determine whether the trial court’s action was so arbitrary as to exceed the bounds of reasonable discretion.  Philipp Bros., Inc. v. Oil Country Specialists, Ltd., 709 S.W.2d 262, 265 (Tex. App.—Houston [1 Dist.] 1986, writ dism’d).  A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles.  Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).  If some probative and substantive evidence supports the order, there is no abuse of discretion.  Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

A motion for a continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law.  Tex. R. Civ. P. 251.  If a motion for continuance is not made in writing and verified, it will be presumed that the trial court did not abuse its discretion in denying the motion.  In re E.L.T. 93 S.W.3d 372, 375 (Tex. App.—Houston [14th Dist.] 2002, no pet.).  Additionally, absence of counsel, standing alone, is not good cause for a continuance.  Tex. R. Civ. P. 253 (West 2004); O’Connor v. O’Connor, 245 S.W.3d 511, 516 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  When withdrawal of counsel is the ground for continuance, the movant must show that failure to be represented by counsel at trial was not due to his own fault or negligence.  Villegas, 711 S.W.2d at 626.

B.        Analysis of Denial of Continuance to Prepare for Trial

The Contis assert that the trial court abused its discretion when it denied their motion for continuance, which requested additional time for counsel to prepare for trial.  We address (1) the sequence of events, (2) the Contis’ financial ability to hire an attorney, (3) their efforts to obtain counsel, and (4) the effectiveness of the trial attorney.

          1.       Sequence of Events

In this case, the original petition was filed on November 19, 2008, and the trial was originally set eleven months later on October 19, 2009.  The Contis hired Kira McKeown to represent them in the trial, but on February 24, 2009, she moved to withdraw as counsel.  The motion to withdraw was granted on March 6, 2009.  On May 12, 2009, Rainbow hired Tom Sanders.  Sanders filed a motion to withdraw on August 26, 2009.  On September 23, 2009, Donna LeLeux, attorney for the children, filed a motion for continuance so that she could attend a Continuing Legal Education seminar.  On October 6, 2009, the continuance was granted, and the trial was reset for January 11, 2010.

On December 30, 2009, which was 12 days before the January 11 trial setting, the Contis filed a written motion for continuance so they could find an attorney to take their case.  They contended that they would be denied due process of law and equal protection if they were forced to represent themselves.  In that written motion for continuance, the Contis did not mention the pending criminal trial against Michael or their financial inability to obtain counsel.

On January 8, 2010, the Friday before the Monday, January 11, trial setting, the Contis attended a pretrial conference, representing themselves.  The Contis asked for a continuance, and they verbally mentioned the pending criminal trial as an additional reason for granting the continuance.  Counsel for DFPS and counsel for E.C. opposed the continuance.  The trial court denied the motion because it did not appear that the criminal trial would occur when it was set.  Although Michael’s criminal trial was set for January 11, 2010, it was fifteenth on the docket.

On January 11, 2010, the day the trial was scheduled to begin, the Contis appeared with counsel, who they hired in the afternoon after the January 8 pretrial conference.  When counsel was hired on January 8, ten months had passed without Michael hiring an attorney to represent him, and four months had passed without Rainbow hiring an attorney to represent her.  Contis’ counsel moved for a continuance in writing and verbally.  He listed the reasons for the continuance as the need for time to prepare, since he was recently retained, and the pending criminal trial against Michael.  He stated that at the pretrial conference the Contis had not tendered a witness list or exhibit list because they did not know that they had to do so.  Although the trial court allowed the Contis to prepare and submit a handwritten witness list at the pretrial conference, Contis’ counsel stated that they had left important witnesses off the list.  The trial court denied the motion for continuance but allowed the Contis’ counsel additional time to submit a witness list and exhibit list.  The trial court also allowed Contis’ counsel additional time to review and object to DFPS’s exhibits 1 through 24, which were admitted during the pretrial conference.  On January 12, 2010, the court addressed the motion for continuance with all of the attorneys.  Counsel for DFPS and counsel for E.C. both objected to the continuance.  The trial court denied the motion for continuance.  The trial commenced on January 12, 2010, which was one year and almost two months from the date on which the original petition was filed.

          2.       Financial Ability to Hire Attorney

The Contis suggest that their failure to timely hire an attorney was not due to their own fault or negligence but was rather due to their financial inability. 

The Contis did not raise financial inability to hire an attorney in their written motions for continuance filed on December 30, 2009, and January 11, 2010.  The Contis also do not make this argument in their brief.[2]  Instead, they raised the issue of their financial inability for the first time at oral argument.  We further note that the record contains no direct evidence of the Contis’ financial ability.

          The record does disclose that the Contis’ lived in an approximately 6,500 square foot house, although about 1,000 square feet of a breezeway and gameroom had been converted into an office.  Michael is a computer “geek” and, after working for NASA for a number of years, began his own business installing audio-video systems and home theaters and building automation controls.  Michael testified that he had a number of large clients.  At one point, Michael’s business had eight employees.    

          Because there is no evidence in the record to show that the Contis raised indigency as a ground for their continuance or that they were financially unable to hire counsel, we conclude that the Contis have failed to show that the trial court abused its discretion by denying their motion for continuance due to financial inability.

          3.       Efforts to Obtain Counsel

          In their verified motion for continuance filed on December 30, 2009, the Contis asserted that they had “diligently attempted to secure representation for this very important case, and all efforts, until very recently, have failed.”  The Contis also stated that they discussed their case with one attorney who would not take it because of the short amount of time to prepare for trial.  Although Rainbow had four months and Michael had ten months to obtain counsel, the record reflects that they spoke to only one attorney before obtaining representation on the day of the pretrial conference.  We hold that the Contis did not meet their burden to show that their failure to be represented by counsel was not due to their own fault or negligence, where the only evidence in the record shows that they spoke to two attorneys shortly before the trial setting despite Michael being without counsel for ten months and Rainbow being without counsel for four months.  See Landers v. Adelson, 788 S.W.2d 940, 941–42 (Tex. App.—Fort Worth 1990, no writ) (holding no abuse of discretion in denying continuance when client agreed to withdrawal of counsel and had almost four months to retain new counsel).

                   4.       Effectiveness of Trial Counsel

          The Contis also contend that the trial court’s denial of the motion for continuance deprived them of their right to effective assistance of counsel.

          The Texas Supreme Court has held that the Texas Family Code’s provision for appointed counsel for indigent parents, see Tex. Fam. Code Ann. § 107.013(a)(1) (West Supp. 2009), “embodies the right to effective counsel.”  M.S., 115 S.W.3d at 544.  The Texas Supreme Court also determined that the standard of review to apply in evaluating claims of ineffective assistance of counsel in termination of parental rights cases is the same as that set forth by the United States Supreme Court for criminal cases in Strickland v. Washington, 466 U.S. 668 (1984).  Id.  “Under the well-established Strickland test, proving ineffective assistance of counsel requires a showing that (1) counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which ‘requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’”  In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting M.S., 115 S.W.3d at 545). 

          Here, the Contis generally assert that the denial of the motion for continuance “denied counsel a realistic and adequate time to prepare for trial, which resulted in a constructive denial of [the Contis’] constitutional right to the effective assistance of counsel.”  Additionally, the Contis do not identify any particular aspect of counsel’s performance that they contend was in error or identify any particular harm from any purported error.  We note that the record shows that the Contis’ counsel was active in presenting the Contis’ defense.  The trial court allowed each side one hour for voir dire.  The Contis’ counsel conducted voir dire and identified six prospective jurors to question further.  In individual questioning, Contis’ counsel succeeded in having one of the six struck for cause and also successfully opposed DFPS’s motion to strike a juror for cause.  During the course of the trial, he also cross-examined DFPS’s witnesses and presented witnesses for the Contis.  He objected to evidence and testimony presented by DFPS.  Nothing in the record shows that the Contis were prevented from presenting witnesses or evidence during trial due to the denial of their motion for continuance or that their defense was harmed by lack of time to prepare for trial.  

          At the time of trial, the case had been pending for over one year.  The case was filed in November 2008, and the trial court had granted one continuance from an October 2009 setting to January 11, 2010.  Although it denied the motion for continuance, the trial court worked with Contis’ counsel to allow him time during the trial to supplement the witness list and to examine exhibits.  The record demonstrates that Contis’ counsel presented the Contis’ case, conducted voir dire, presented witnesses, cross-examined DFPS’s witnesses, and objected to statements made by DFPS in closing argument.

          We conclude the Contis did not receive ineffective assistance of counsel due to of the trial court’s denial of their motion for continuance.  See id.

We overrule the Contis’ first issue.

C.        Analysis of Denial of Continuance to Allow Criminal Trial to     Proceed First

In their second issue, the Contis contend the trial court abused its discretion in denying their motion for continuance so that Michael’s criminal trial could be completed before the termination trial.

This issue was not raised in the first written motion for continuance that the Contis filed pro se on December 30, 2009.  Michael did mention it verbally at the pretrial conference on January 8, 2010, but it was not in writing.  January 11, 2010, the first scheduled day of the trial, was the first time Michael filed a motion asserting that his criminal trial was a reason to continue this trial.

According to the Texas Family Code section 161.2011(a):

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 for 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.

Tex. Fam. Code Ann. §161.2011(a) (West Supp. 2009).  The statute requires that pending criminal charges directly relate to the grounds for termination and that the continuance would be in the best interest of the child.  In their written version of the motion for continuance filed January 11, 2010, the Contis stated that the trial should be postponed because Michael had a criminal trial set on the docket for January 11, 2010.  In this motion, the Contis stated, “The primary purpose of a termination suit is to protect the child’s best interest.  The best interest of a child can only be attained when a court’s decision is as well-informed as possible.”  However, the Contis made no other argument and presented no affidavit or evidence in support of a finding that a continuance would be in the best interest of E.C.  Because the record does not show that the Contis met the statutory requirements for a continuance until after the criminal trial, the trial court did not abuse its discretion by denying the January 11, 2010 motion for continuance.

          We overrule the Contis’ second issue.

Improper Arguments

In their fourth issue, the Contis contend that the counsel for DFPS and counsel for E.C. made improper statements and remarks not in evidence that implied that Michael was convicted of sexually abusing a child.

A.        Applicable Law

The control of counsel during a trial rests within the sound discretion of the trial court, and a reviewing court will not interfere unless it is clear that the trial court abused its discretion.  Mandril v. Kasishke, 620 S.W.2d 238, 247 (Tex. Civ. App.—Amarillo 1981, writ ref’d n.r.e.).  A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or if it acts without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).  To obtain reversal of a judgment on the basis of improper jury argument, a complainant must prove (1) an error (2) that was not invited or provoked, (3) that was preserved at trial by a proper objection, motion to instruct, or motion for mistrial, (4) and that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial court, and that (5) the argument by its nature, extent, and degree constituted reversibly harmful error.  Id. (citing Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979)).  Reversal is proper only upon a showing that “the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.”  Reese, 584 S.W.2d at 840.

To obtain reversal, the Contis must first prove “an error” that was not “invited or provoked.”  See id.  Counsel must confine the argument strictly to the evidence and to the arguments of opposing counsel.  See Tex. R. Civ. P. 269(e).  A litigant is entitled to have his counsel argue the facts of the case to the jury.  Clark v. Bres, 217 S.W.3d 501, 510 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Tex. Sand Co. v. Shield, 381 S.W.2d 48, 57–58 (Tex. 1964)).  Trial counsel may properly discuss the reasonableness of the evidence as well as the probative effect, or lack thereof, of the evidence.  Id.  This extends only to the facts and issues raised by the evidence admitted under the rulings of the trial court.  Id.  In addition, attorneys may argue reasonable deductions and inferences from the evidence properly before the jury.  Id. (citing Mundy v. Shippers, Inc., 783 S.W.2d 743, 745 (Tex. App.—Houston [14th Dist.] 1990, writ denied)).  Trial counsel should be allowed wide latitude in arguing the evidence and the reasonable inferences from the evidence to the jury.  Id. (citing Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657, 667 (Tex. App.—El Paso 1992, writ denied)).  Criticism, censure, or abuse of counsel is not permitted.  See Tex. R. Civ. P. 269; Jones v. Republic Waste Servs. of Tex., 236 S.W.3d 390, 401 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).  Appeals to passion and prejudice are improper.  See Tex. R. Civ. P. 269; Jones, 236 S.W.3d at 401.  Generally, an adverse ruling is required to preserve an issue for appeal.  Arias v. Brookstone, L.P., 265 S.W.3d 459, 467 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Tex. R. App. P. 33.1(a)).

B.               Analysis of Comments During Trial Proceedings

The Contis specifically mention four examples of alleged improper “argument” during the trial proceedings.  These examples are not “arguments” by an attorney, but rather concern evidence admitted during the trial.[3]  None of these examples are preserved for review because there was no objection on the ground that they constituted an improper argument and no ruling by the trial court.  See Jones, 236 S.W.3d at 401.  The Contis’ counsel objected on the grounds of assuming facts not in evidence, relevance, and improper admission of a criminal conviction, but no objection was made on the ground that the statement was an improper argument. 

C.      Analysis of Comments during Closing Argument

The Contis specifically mention two examples of alleged improper argument during closing arguments. 

In the first example, the Contis’ counsel objected to E.C.’s counsel pointing to Michael and saying he sexually abused a child.  The Contis’ counsel asserted that this fact was not in evidence.  The trial court overruled the objection.  The record shows as follows:

[E.C.’s Counsel]   We’ve already given you the evidence.  We all know what happened and we all know that she failed to protect her daughter, her oldest daughter.  Do you think she’s going to protect her youngest daughter?  She doesn’t care.  I’m sorry, ladies and gentlemen, it’s sad, it’s horrible but there are people in this world who don’t care about their children.  They just don’t care.  They put their own needs above others.  She told Lori Warren, Michael is my life and without Michael I wouldn’t have a family.  Excuse me?  Excuse me.  You have children.  That is who comes first, not your husband, not anybody else in the world.  You protect your babies.  That’s your job.  That’s your duty.  That’s your obligation.  And when you fail to do that we end up in courtrooms like this with a jury, and we have to have 12 people who will stand up and say, done, we’re all done.  You failed to protect.  You sexually abused a child and you know what happened - -

[Contis’ counsel]  Objection, your Honor.  She’s pointing at my client saying he sexually abused a child.  That is not in evidence.

The Court:            I overrule the objection.

In the second example, the Contis’ counsel objected and said that there was no evidence that Michael sexually abused M.S.

[DFPS’s counsel] Do not ruin Rainbow Conti’s life.  Rainbow Conti had a choice.  She had a choice.  [DFPS] told Rainbow Conti she could move out of the house, get a job, do anything to get away from Michael Conti and then she could have her children returned.  She was unwilling to do that.  She had that choice, not E.C.  So what about E.C.’s life?  That’s what’s important to me.  [DFPS] is asking you terminate the Contis’ rights to E.C. because we, unlike Ms. Conti, do not want to wait for Mr. Conti to sexually abuse this child too.  He’s already abused, sexually abused M.S. - -

[Contis’ counsel]  Objections.  There’s no evidence that he sexually abused M.S.

[DFPS’s counsel] Your Honor, I’m basing my - -

The Court:            I’m going to overrule the objection.  Tell you ladies and gentlemen, you heard the testimony that was given in this courtroom.  It is up to you to decide who you believe and what you believe.

[DFPS’s counsel] In addition to the more recent sexual abuse of a child there was deferred adjudication for abuse of another child.  I don’t want to wait for that to happen to E.C.  We’re asking that you spare E.C. from the experiences M.S. has been through.  Spare E.C. from memories like the ones M.S. will have forever.  To spare E.C. from effects that sexually abused children suffer from, such as post-traumatic stress disorder, and to terminate the Contis’ rights to E.C. so that she will not be in danger of sexual abuse and she will be raised in the safe home that she deserves, the safe home that her mother was unwilling to provide her with for over 14 months in this case.

An examination of the entire record demonstrates that the evidence admitted at trial was sufficient for the jury to have found that Michael had sexually abused M.S.  M.S. testified during the trial that Michael sexually abused her, and other witnesses testified that Michael admitted the sexual abuse.  Therefore, the trial court did not abuse its discretion in allowing the statements, as trial counsel is allowed wide latitude in arguing the evidence and the reasonable inferences from the evidence to the jury.  See Clark, 217 S.W.3d at 510 (citing Anderson, 832 S.W.2d at 667).    

We overrule the Contis’ fourth issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Sharp.

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[1]           The trial court also terminated Rainbow’s parental rights to her daughter M.S.  That order is not at issue in this appeal.

[2]           The Contis have one sentence in the argument section of their brief that states, “The [Contis] were unable to pay for or otherwise retain an attorney until their trial counsel agreed to represent them pro bono late in the afternoon of January 8, 2010.”  To support this, the Contis cite to the Clerk’s Record at pages 96 to 98 and volume 3 of the Reporter’s Record at pages 3 to 4.  Neither of these record references contains any information concerning the Contis financial ability but only address the issue of Conti’s counsel being hired on the afternoon of January 8, 2010.

[3]           Appellant contends the following statements during trial were improper:

[DFPS Worker]         Yes, ma’am.

[E.C.’s Counsel]       Do you believe by going and knocking on the doors in the neighborhood and asking the neighbors if they knew about it that it might embarrass and humiliate this child?

[DFPS Worker]         Yes.

[Contis’ Counsel]     Objection.  Objection, your Honor.  She’s assuming facts that are not in evidence.  My clients have been accused of something.  She’s saying that they did it already.

            Appellant also challenges the following testimony:

[E.C.’s Counsel]       When did you hire counsel for those charges that are against you, immediately or did you take awhile to do that?

[Michael]                   Probably a week or two after the kids were taken, because we weren’t getting any responses from [DFPS].

[E.C.’s Counsel]       I’m talking about the criminal attorney that represents you?

[Michael]                   Now?

[E.C.’s Counsel]       Now.

Furthermore, appellant complains about testimony as follows:

[E.C.’s Counsel]       If this jury terminates the parental rights of Michael Conti and Rainbow Conti what are your thoughts on allowing Rainbow Conti continued supervised visitation of E.C.?

[Lori Warren]           I would have to -- I don’t know.  There’s not a book out there on this.  I’d have to actually take guidance from her therapist and possibly [DFPS].  I don’t know how this was handled after that.

[E.C.’s Counsel]       But you wouldn’t be opposed to it if they felt it was in her best interests?

[Lori Warren]           If it was in her best interest, then, yes.

Finally, appellant points out the following testimony:

[E.C.’s Counsel]       If this jury terminates your brother’s parental rights to E.C., are you going to believe M.S. was sexual assaulted by your brother?  Yes or no, ma’am.

[Contis’ Counsel]     Objection, your Honor.  She’s asking about a criminal - - she’s referring to a criminal conviction.  This is a civil case.

. . . .

[E.C.’s Counsel]       If this jury terminates your brother’s parental rights are you going to believe that M.S. was sexually assaulted by your brother?

[Ramos]                     No.  Because I don’t believe the two equal - -