IN THE INTEREST OF B.M., J.M., D.M., AND L.M., CHILDREN
By three issues, appellant D.M. (Mother)1 challenges the termination of her parental rights to B.M. (Child 1), J.M. (Child 2), D.M. (Child 3), and L.M. (Child 4). Mother alleges: (1) she was denied due process when the attorney ad litem did not advocate according to Child 3 and Child 4's wishes; (2) the trial court abused its discretion by denying her request for an extension; and (3) the evidence was legally and factually insufficient to support a best interest finding regarding termination. We affirm.
In August 2016, the Texas Department of Family and Protective Services (the Department) filed its original petition for protection, conservatorship, and for termination of Mother's parental rights over her four children.2 The petition was in response to Mother's arrest for possession of methamphetamine, following a high speed chase from police involving Mother's boyfriend J.H. (Boyfriend), Mother, and Child 3 and Child 4 in the vehicle.
After interviewing the children, the Department had concerns regarding Mother's drug use, the instability of the children's living environment, domestic violence between Mother and Boyfriend, and the high speed chase with police. The trial court removed the children from Mother's care, Child 1 and Child 2 were placed with their maternal grandmother, D.G. (Maternal Grandmother), while Child 3 and Child 4 were placed in foster care.
The Department moved forward with termination proceedings and a bench trial commenced on August 8, 2017. At the outset of the trial, Mother requested an extension of the proceedings in order for Child 1 to age out of the system 3 , and for Mother to have more time to comply with the Department's service plan. The trial court carried the motion through trial.
Marilyn Anderson, an investigator with the Department, testified that she initially received a neglectful supervision referral in May of 2016 regarding Child 3. She was unable to locate the family, but finally made contact with Child 1 and Child 2 at their respective schools. Anderson found out Child 1 and Child 2 were living with friends, instead of Mother. According to Anderson, Child 1 spoke of how she acted like a mother to the younger children and Mother's methamphetamine use. Child 2 talked about the violence in the home between Mother and Boyfriend and that he was fearful of Boyfriend. When Anderson finally made contact with Mother, Mother was renewing her food stamps and was “irate” upon contact. Anderson stated that she believed Mother was on some type of drug when they interacted and refused to take a drug test at Anderson's request. Anderson also testified that Mother had a history with the Department since 2008, and a majority of the cases had “reason to believe” as their disposition, indicating that the Department found the allegations to be credible.
Christine Rodriguez, a conservatorship worker with the Department, testified that she was in charge of monitoring Mother's family service plan. Rodriguez stated the Department's biggest concerns with Mother dealt with her drug use, trouble maintaining employment, and unstable housing. Rodriguez told the court that Mother had only complied with three of the fourteen drug tests requested by the Department. One of the tests was negative for drugs, but the most recent ones were positive for the presence of drugs. Rodriguez testified that the Department had concerns that Boyfriend had been present during some of the visits between Mother and the children. Additionally, Rodriguez notified the trial court that Child 1 and Child 2 could stay with Maternal Grandmother, and Child 3 and Child 4 were doing well in foster care. Rodriguez stated that even though Mother had complied previously with the Department during a prior removal and return of the children, she did not believe that Mother demonstrated an ability to change and comply with the Department requirements. Rodriguez believed that Mother had endangered the physical and emotional well-being of the children and that termination of her rights would be in the children's best interests.
The Court Appointed Special Advocate (CASA) volunteer Ann Showalter testified at trial. After spending a significant amount of time with the children and watching their interactions with Mother during visitations, Showalter told the court she does not think Mother can meet the children's needs.
Mother also testified, telling the court that her previous case with the Department ended in May 2015 and that the children were returned to her care after having been previously removed. Mother agreed her relationship with Boyfriend was abusive and they fought often. Mother stated that she had attended a drug rehabilitation program and had been clean, but recently relapsed and used methamphetamines. Mother also explained that the methamphetamines for which she was arrested were not hers, but she had found them at the home she wanted to rent and was taking them to show the landlord. Mother also agreed that she continues to speak to Boyfriend because he helps her when she requires it. Mother told the court that if it granted the requested extension, she would comply with all the requirements of the Department's family service plan.
The trial court denied Mother's request for an extension of time and concluded that termination of Mother's parental rights were in the best interest of the children and that Mother violated six statutory provisions in the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (F), (I), (O) & (P) (West, Westlaw through 2017 1st C.S.). This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By her third issue, which we address first, Mother challenges the legal and factual sufficiency of the evidence used to terminate her parental rights.
A. Standard of Review
“Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them.” In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). While parental rights are of a constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
A court may order the termination of a parent-child relationship if it is shown by clear and convincing evidence that a parent has met at least one of the statutory factors listed in the family code, coupled with an additional finding by clear and convincing evidence that termination is in the child's best interest. See TEX. FAM. CODE. ANN. § 161.001(b)(1)–(2); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong); In re E.M.N., 221 S.W.3d 815, 820–21 (Tex. App.—Fort Worth 2007, no pet.). “Clear and convincing evidence” is defined as the “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 (West, Westlaw through 2017 1st C.S.). “This intermediate standard falls between the preponderance of the evidence standard in civil proceedings and the reasonable doubt standard of criminal proceedings.” In re L.J.N., 329 S.W.3d at 671. This heightened standard of review is mandated not only by the family code, see TEX. FAM. CODE ANN. § 161.001, but also the Due Process Clause of the United States Constitution. In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)). “It is our obligation to strictly scrutinize termination proceedings and strictly construe the statute in favor of the parent.” In re L.J.N., 329 S.W.3d at 673.
In a legal sufficiency review, we look at all of 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 its finding was true. In re J.F.C., 96 S.W.3d at 266. Furthermore, we must assume that the factfinder resolved disputed facts in favor of its findings 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. If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient and render judgment in favor of the parent. Id.
We review challenges to the factual sufficiency of the evidence in a termination proceeding by giving “due deference to a [trial court's] factfindings,” and we do not “supplant the [factfinder's] judgment” with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). In our review, we should “inquire ‘whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [ ] allegations.’ ” Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “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. However, in applying this standard, we must not be so rigorous in our analysis that the only fact findings that could withstand review are those established beyond a reasonable doubt. Id.
B. Applicable Law and Discussion
Mother's rights were terminated under Texas Family Code section 161.001(b)(1) (D), (E), (F), (I), (O), (P), and in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001.
1. Section 161.001(b)(1)(D) and (E)
a. Applicable Law
Family Code section 161.001(b)(1)(D) states: “that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” See id. § 161.001(b)(1)(D). Section (E) states: “that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional wellbeing of the child.” See id. 161.001(b)(1)(E). As these grounds address similar requirements, we will address them together.
“To endanger means to expose to loss or injury, to jeopardize.” In re E.M., 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet. ref'd). “Both subsections thus require ‘endangerment’—that is, jeopardizing the child's physical or emotional well-being.” In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. ref'd.) “But they differ as to the cause of the endangerment.” Id. “Under both subsections, therefore, termination must rest upon parental conduct. But subsection D permits termination because of a single act or omission, while subsection E requires a ‘course of conduct.’ ” Id.
Subsections D and E also differ in the relationship each requires between the parental conduct and the endangerment. Subsection D requires the endangerment to be the direct result of the child's environment and only an indirect result of a parental act or omission; subsection E, on the other hand, requires the endangerment be a direct result of parental conduct. Subsection D thus permits a less than direct relationship between the parental conduct and the endangerment but it also requires an additional factor—an endangering environment—to be proved, while subsection E requires a direct relationship but this relationship, standing alone, justifies termination.
Id. at 367–68.
“A parent's illegal drug use and drug-related criminal activity may also support a finding that the child's surroundings endanger his or her physical or emotional wellbeing.” In re E.M., 494 S.W.3d at 222. Also, because “it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(b)(1)(E).” Id. (quoting Walker v. Tex. Dep't Fam. & Prot. Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). “A factfinder may reasonably infer from a parent's refusal to take a drug test that the parent was using drugs.” Id. “A parent's continued drug use demonstrates an inability to provide for the child's emotional and physical needs and to provide a stable environment for the child.” Id.
Here, the Department alleged that Mother's drug use, exposure of the children to a violent relationship with Boyfriend, and lack of employment and stable housing were the main reasons for a finding under these subsections.
Although Mother claimed she completed drug rehabilitation and remained drug free, the trial court can look at Mother's refusal to comply with requested drug tests as a presumption of a positive drug test. See id. Mother tested positive for drugs in July 2017, shortly before the trial commenced. Mother also admitted to using drugs during her testimony and stated she used drugs as she felt overwhelmed with the current situation with her children. However, Mother took no responsibility with the Department for being arrested with methamphetamines in August and instead told the court that she was cleaning a prospective rental home, found the drugs inside the home, and was taking them to the potential landlord.
Besides her ongoing drug issues, Mother has been unable to provide a stable environment for the children. Mother was required to find stable housing for a period of at least six months while under the Department's monitoring. Mother failed to comply with this requirement. At the outset of this case, Child 1 and Child 2 were placed with Maternal Grandmother, while Mother kept Child 3 and Child 4. However, Child 1 and Child 2 were displaced from Maternal Grandmother's home and living with friends when the Department intervened. Department employees testified to reports of Child 3 and Child 4 being unkempt during the school year at the hearing. Also, Mother had Child 3 and Child 4 with her when she was involved in the high speed chase with Boyfriend at 1:00 a.m.
Additionally, Mother continued to have interactions with Boyfriend. Besides Boyfriend being the driver in the high speed chase in a vehicle where Mother was a passenger, Mother testified that while their relationship was positive at the beginning, it changed and is now abusive, both verbally and physically. Mother stated she keeps Boyfriend in her life because she feels he is the only person who will help her and because he provides her a means of transportation when necessary. However, Child 2 stated to the Department workers that he was afraid of Boyfriend, and the other children admitted that Boyfriend has gotten into altercations with Child 2 as well.
Based on the testimony provided, we conclude that the evidence was legally and factually sufficient to support a trial court finding under section 161.001(D) and (E).4 See TEX. FAM. CODE. ANN. § 161.001(D) & (E); In re J.F.L., 96 S.W.3d at 266; In re H.R.M., 209 S.W.3d at 108.
2. Best Interest of the Children
a. Applicable Law
If we find that a reasonable factfinder could have found evidence to support termination under a statutory ground, we must next determine if there was clear and convincing evidence that termination of Mother's parental rights is in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 261. We must decide how to “reconcile ‘a parent's desire to raise [the] child with the State's responsibility to promote the child's best interest.’ ” In re O.R.F., 417 S.W.3d 24, 39 (Tex. App.—Texarkana 2013, pet. denied) (citing In re E.R., 385 S.W.3d 552, 555 (Tex. 2012)). “There is a strong presumption that a child's interest is best served by preserving the conservatorship of the parents; however, clear and convincing evidence to the contrary may overcome that presumption.” Id.
In deciding what is in the “best interest of the child,” we look to the Holley factors to make a proper determination. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors include, but are not limited to:
(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.
In re B.R., 456 S.W.3d 612, 615–16 (Tex. App.—San Antonio 2015, no pet.) (quoting Holley, 544 S.W.2d at 371–72). “These factors are not exhaustive; some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate.” In re D.C., 128 S.W.3d 707, 716 (Tex. App.—Fort Worth 2004, no pet.). “Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the children.” Id. “On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding.” Id. “Additionally, the Family Code lists thirteen similar factors for determining the parents' willingness and ability to provide a safe environment.” In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Because we found that there was sufficient evidence to terminate Mother's parental rights under section 161.001(b)(1), we next evaluate the best interest finding. In using the Holley factors to conduct our evaluation, we look at the following:
(a) the desires of the child
“A child's need for permanence through the establishment of a ‘stable permanent home’ has sometimes been recognized as the paramount consideration in a best-interest determination.” In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston 2014, pet. denied). “Therefore, evidence about the present and future placement of the children is relevant to the best-interest determination.” Id.
Child 1 and Child 2 are placed with Maternal Grandmother and expressed to the Department that they wished to stay in their current placement. Even though Maternal Grandmother had experienced problems with Child 1 and Child 2 for a time, she relayed to the Department that she was willing to keep Child 1 and Child 2 under her care.
Child 3 and Child 4 are placed in a foster home together.5 Both younger children expressed a desire to return with Mother. However, Mother has not demonstrated her ability to provide for the younger children. At the time of the trial, Mother had still not secured a more permanent home environment, as required by the family services plan. Additionally, Mother had not secured long-term employment, which was also a requirement of the family service plan.
Although Child 3 and Child 4 wanted to be placed with Mother, due to her lack of progress towards establishing a stable home environment, her lack of steady employment, her continued drug use, and her relationship with Boyfriend, this factor weighs in favor of termination.
(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
The emotional and physical needs of the children are of paramount concern. The trial court can consider past events in making the determinations of best interest. See May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied) (that evidence of past misconduct or neglect is a permissible inference that a parent's future conduct may be measured by their past conduct).
Child 1 was described by Department employees as the “mom” to her younger siblings. Testimony revealed that Mother leaned on Child 1 as a confidant and friend, instead of acting as her parent. Child 1 had behavioral changes when she spent time with Mother and seemed to lose interest in her prior educational goals.
Witnesses described Child 2 as very quiet and withdrawn. According to witnesses, Child 2 repeatedly stated he did not want to see Mother or return to living with her. CASA volunteer Showalter repeatedly saw him sitting in a vehicle prior to the conclusion of visitation with Mother, and Department employees confirmed Child 2 would leave the visitation sessions early. Child 2 also described his fear of Boyfriend's physical violence, sometimes directed toward Child 2. Child 2 was content living with Maternal Grandmother, even though he showed no interest in school and was retained in the same grade level at the conclusion of the school year.
Child 3 and Child 4 resided together in a foster home. They were described as normal children, although they exhibited aggression and used foul language, not typical of elementary school aged children. Both children expressed that they wanted to be returned to Mother. However, Child 3 and Child 4 were present in the vehicle with Mother when Boyfriend led Beeville Police on the high speed chase.
Rodriguez testified that she felt Mother endangered the emotional and physical well-being of all the children based on her behavior and lack of progress through the family services plan. Anderson stated that she felt being around Mother left the children in a condition that endangered their well-being. Showalter testified that she felt Mother affected the children during their visitation and does not think Mother can meet the children's needs.
These factors weigh in favor of termination.
(d) the parental abilities of the individuals seeking custody
(e) the stability of the home or proposed placement
As these factors are related, we will address them together. Child 1 and Child 2 are being cared for by Maternal Grandmother. Maternal Grandmother also allows J.M., Child 1 and Child 2's older brother (Brother), to reside with her, as well as a great aunt and uncle. Brother has a good relationship with Maternal Grandmother, as well as Child 1 and Child 2. Maternal Grandmother and the extended family members living in the home with Maternal Grandmother were found to be acceptable for placement by the Department.
Although Maternal Grandmother had previously indicated that she no longer wanted to care for Child 1 and Child 2 due to disagreements between then, at the time of trial, the family appeared to have resolved its differences, and Maternal Grandmother wanted Child 1 and Child 2 to continue residing with her.
Child 3 and Child 4 were residing in a foster home in Alice at the time of the trial. They appeared to be adjusting to their living arrangements. Maternal Grandmother had indicated she would have liked to care for all four children, but was unable to handle all of them. The Department testified that it had no “forever” home available for Child 3 and Child 4, but they were stable in their current foster placement.
The record shows that Mother has not demonstrated any appropriate parenting abilities. By failing to comply with the family service plan, Mother chose not to complete any of the therapy component or assessment as requested by the Department. Mother was still frequently seen with Boyfriend, who frightened her children. Mother also has no residence for the children, if they were to be returned to her. The Department requested Mother find stable housing for a period of at least six months, and she had not complied.
Because Mother was using drugs prior to trial, had not obtained stable housing, and had not found steady employment, it shows that little had changed during the pendency of Mother's case. These factors weigh for termination.
(f) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one
(g) any excuse for the acts or omissions of the parent
As set out above, Mother had tested positive for drugs; Mother was arrested for drug possession following a high speed chase; Mother failed to secure stable housing; Mother failed to secure employment; and Mother continued to keep Boyfriend in her life.
The drug use has also led to her most recent arrest and incarceration. Although it was unclear at the bench trial if all the charges had been dismissed or if the charges were still pending regarding the possession charge, the arrest still occurred. Regardless of her alleged reasoning, Mother was still in possession of methamphetamine following Boyfriend's high speed chase.
Furthermore, Mother was unemployed at the time of the bench trial. Rodriguez was told by Mother that potential employment was available to Mother, but she had not secured a new job. Rodriguez felt that even if the court was to grant Mother an extension to try to comply with the family service plan, Rodriguez did not think Mother could comply.
These factors weigh in favor of termination.
Because the Holley factors in this case weigh in favor of termination, we overrule Mother's third issue.
III. ATTORNEY AD LITEM DID FULFILL HER DUTIES
By her first issue, Mother argues the attorney ad litem for the children, Michelle Jones, did not fulfill her duties because she failed to advocate for the outcome the younger children requested. Mother complains that although the attorney ad litem notified the court as to the wishes of the two younger children, she advocated against their wishes during her argument.
By definition, an attorney ad litem means an “attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” TEX. FAMILY CODE ANN. § 107.001(2) (West, Westlaw through 2017 1st C.S.). However, an attorney ad litem
appointed to represent a child or an attorney appointed in the dual role may determine that the child cannot meaningfully formulate the child's objectives of representation in a case because the child:
(1) lacks sufficient maturity to understand and form an attorney-client relationship with the attorney;
(2) despite appropriate legal counseling, continues to express objectives of representation that would be seriously injurious to the child; or
(3) for any other reason is incapable of making reasonable judgments and engaging in meaningful communication.
Id. § 107.008(a) (West, Westlaw through 2017 1st C.S.).
If a guardian ad litem has been appointed for the child in a suit filed by a governmental entity requesting termination of the parent-child relationship ․, an attorney ad litem who determines that the child cannot meaningfully formulate the child's expressed objectives of representation:
(1) shall consult with the guardian ad litem and, without being bound by the guardian ad litem's opinion or recommendation, ensure that the guardian ad litem's opinion and basis for any recommendation regarding the best interests of the child are presented to the court; and
(2) may present to the court a position that the attorney determines will serve the best interests of the child.
Id. § 107.008(c).
“A party may not complain of errors that do not injuriously affect her or that affect only the rights of others.” In re T.N., 142 S.W.3d 522, 524 (Tex. App.—Fort Worth 2004, no pet); see also In re S.I.-M.G., No. 02-12-00141-CV, 2012 WL 5512372, at *14 (Tex. App.—Fort Worth 2012, no pet.) (mem. op.). “An exception exists when the appellant is deemed to be a party under the doctrine of virtual representation, which requires among other elements that the appellant and the children have identical interests. In re T.N., 142 S.W.3d at 524 (citing Gunn v. Cavanaugh, 391 S.W.2d 723, 725 (Tex. 1965)). In order to benefit from the doctrine of virtual representation, “an individual must show (1) that he is bound by the judgment; (2) that his privity of estate, title, or interest appears from the record, and (3) that there exists an identity of interest between the individual and a party to the judgment.” State v. Naylor, 466 S.W.3d 783, 789 (Tex. 2015).
Other cases have made similar claims as those Mother makes. In In re G.F., the mother “asserted that the children's ad litem counsel failed to advocate for the children's desire for reunification and instead advocated for termination of parental rights.” No. 09-11-00316-CV, 2012 WL 112549, at *1 (Tex. App.—Beaumont 2012, no pet.) (mem. op.); see also In re J.E.G., No. 06.17-00064-CV, 2017 WL 4448547, at *5 (Tex. App.—Texarkana 2017, no pet.) (mem. op.). The Beaumont Court found that:
The record does indicate that the children desired reunification with [mother], but the record does not demonstrate that [mother] and children have identical interests. Rather, the record demonstrates, and the trial court found, that [mother], who has a history of drug abuse, permitted the children to remain in conditions or surroundings which endanger their physical or emotional well-being, and that [mother] engaged in conduct or knowingly placed the children with persons engaged in conduct that endangered the children's physical or emotional well-being.
In re G.F., 2012 WL 112549, at *1.
We hold, as the Beaumont Court did, that Mother and her children did not have identical interests. See id. The children's interest was to find a safe, loving, and permanent family situation to live in. See In re J.E.G., 2017 WL 4448547, at *5. Mother claims to want the children back with her, but made little to no progress in complying with the Department's family service plan in order to effectuate that situation occurring. Because Mother's interest are not aligned with the children's interest, we find Mother lacks standing to challenge the attorney ad litem's representation. See In re G.F., 2012 WL 112549, at *1. We overrule Mother's first issue.
IV. NO ABUSE OF DISCRETION DENYING MOTHER'S CONTINUANCE
By her second issue, Mother argues that the trial court abused its discretion by denying her request to continue her case for another 180 days.
A. Standard of Review
In a termination of parental rights case, an appellate court reviews a trial court's denial of a motion for continuance for an abuse of discretion. In re R.F. III, 423 S.W.3d 486, 490 (Tex. App.—San Antonio 2014, no pet.). An appellate court will “sustain the trial court's determination absent a finding that ‘the trial court acted without reference to any guiding rules or principles, such that its ruling was arbitrary or unreasonable.’ ” Id. (quoting Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)). A “trial court is presumed to have correctly exercised its discretion when it denies a motion that does not comply with the requirements of Rule 251 of the Texas Rules of Civil Procedure, including not made in writing, verified, or supported by affidavit.” Id.
B. Applicable Law and Discussion
Mother complains that the trial court should have granted her request for a continuance. However, Mother did not file a verified continuance with the trial court. The Texas Rules of Civil Procedure Rule 251 requires that “no application for a continuance shall be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” TEX. R. CIV. P. 251. Here, Mother requested the continuance in open court, it was not verified by affidavit, and it was opposed by the Department and the attorney ad litem.
A trial court does not abuse its discretion by denying a continuance or extension, when a parent, through his or her own choices, fails to comply with a service plan and then at the time of the termination trial requests a continuance or an extension of the statutory dismissal deadline in order to comply with the plan.
In re L.C.W., 411 S.W.3d 116, 125 (Tex. App.—El Paso 2013, no pet.).
Here, Mother requested more time to comply with the family service plan; yet, nothing in the record other than non-compliance supports a need for a continuance. Mother knew and failed to comply with a substantive part of the requirements of the Department's family service plan. In support of her argument, Mother cites to family code section 263.401, which allows for extensions of the deadlines based on “extraordinary circumstances.” See TEX. FAMILY CODE ANN. § 263.401 (West, Westlaw through 2017 1st C.S). Mother argued that lack of communication with the Department case worker and the fact that the children's circumstances would not change if the extension was granted equated to “extraordinary circumstances.” However, based on testimony, Mother had communication problems with a former caseworker, not her current one at the time of trial. Further, Mother did not present evidence to provide the trial court with “extraordinary circumstances” to justify an extension of her case. See id. The trial court did not abuse its discretion in denying Mother's oral motion for continuance. See TEX. R. CIV. P. 25.1; In re R.F., 423 S.W.3d at 490. We overrule Mother's second issue.
We affirm the judgment of the trial court.
1. Pursuant to Rule 9.8(b) of the Texas Rules of Appellate Procedure, we will utilize aliases when referring to parties and persons related to this proceeding. See TEX. R. APP. P. 9.8(b).
2. G.M. (Father) is the father of all four children and was an initial party to this lawsuit. However, he voluntarily relinquished his rights to the children and is not a party to this appeal.
3. Child 1 was seventeen at the time of the trial and turned eighteen on September 25, 2017.
4. Based on our finding that there was sufficient evidence to support the trial court's finding under subsections (D) and (E), we do not need to further evaluate subsections (F), (I), (O), and (P), as only one section is required for termination. See In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong).
5. Maternal Grandmother had indicated to the Department that while she wished to have custody of all four of the children, she was not able to provide for all of them and, therefore, could not be considered as placement for the two younger children.
GINA M. BENAVIDES, Justice