## In the Court of App ea ls Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 21

- 00122

- CV

__________________

_________

On Appeal from the 322nd District Cou rt Tarrant County, Texas Trial Court No. 322

- 682567

- 20
Before Sudderth, C.J.; Kerr and Womack, JJ. Memor andum O pinion by Justice Wom ack 

### I N THE 

### I NTEREST OF 

### G.Z., A.Z., H.Z., A.Z., A.Z., AND 

### J.D.2 M EMORANDUM OPINION
I. I NTRODUCTION Appellants F.S. (

Mother ) and H.R. Z.D. ( Father ) appeal the trial court ’ s judgment t erminating their respective rights to three of their children

— A.Z. ( Amber ) , A.Z. (Aubrey) , and J.D. ( Joe y )

. 1 I n this ultra

- accelera ted ap peal , 2 Mother argues in
two issues that the trial court abused its discretio n by denying her motion for
continuance f

iled two days before trial and that the re was “ no e vidence or insufficient

ev idence to sup port the court ’ s findi ng that termina tion w as i n the best interest ” of
the three child ren. In one issue, Father argues that the “ evidence was factually and legally insufficient to support the court ’ s finding that termination of [Father ’ s] parental rights w as in the best intere st of the c hildren. ” We will affir m . II. B ACKGROUND
A. Investigation and Removal
Mother and Father have six child ren: G.Z. (Gabby), A.Z. (Al ex), H.Z. ( Harry), Amber, Aubrey, and Joey. Gabby, Al ex, and Harry are Mother and Father ’ s three

1 We use alias es to identify the child re n , an d we iden tify f amily m e mb ers by t he ir rela tio n t o t h e ch ild ren . Se e Tex . Fam. Cod e Ann. § 109.002(d); Tex. R. Ap p. P. 9.8(b )(2).

2 See Tex. R. Jud. Admin. 6.2 (a), r eprinted in Tex. Gov ’ t Code A nn., t it. 2, subtit. F app. (requiring appellate court to d i spose of appeal f rom judg m en t terminat

ing parental ri ghts, so far a s r eason ably possi ble, w ithin 180 days afte r notice of appea l is filed).3

o lde st childre n. 3 Amber, Aubrey, and Joey are Mother and Father ’ s three younge st children. 4
O n April 15 , 2020 , t he Depa rt men t of Family and Protective Services became
invol v ed wh en Mother set a ro om of her house on fire while her children were in the
house a nd while sh e was pregnant with J oey . Accordi ng to Kimara Burnside, a Department investigator who met with Mother at John Peter Smith H ospital after the
fire , M other told Burnside that “ she was being physically abused by [Father] ” and that
she had started the fire be cause “ she was having some iss ues w ith [Father] and . . . was
tired and that she wa nted to basically die. ” 5 Burn side a ls o met with the ch ildren who reported that they had heard Mother and Father “arguing and screaming , ” that
Mother had set the room on fir e, and that the smoke detectors we nt off.
Mother was “ lat [ e ] term” pregna nt with Joey at the time o f the fire , and she
admit ted to Burnside that she was a user of cocaine and methamphetamine and that
she had used methamphetamine the pre vious month

. On A pril 17, 2020, Mother gave birth t o Joey. Mother tested positive for am phetamines while in the hospital,

3 At the time of trial , Gabby was s e ventee n year s old , Alex was sixteen, and Harry was fourteen

.

4 At the ti me of trial, Amber w as el even , Au brey was eigh t, and Joey was eleve n mont hs ol d

.

5 Burnside testified that bruises were observed on Mother when she was be i n g transporte d to the hospital.4

and Joey ’ s meconium tested positive for amphetamines and methamphetamin e s . 6 A
f ew days after Joey ’ s birth , Burnside met with Mother again and discuss ed the Department ’ s allegations ag ai nst her , went over a safety plan with h er, and informed
her that she wou ld not b e able to take Joey home be cause of the positive drug test results

. Through her investigation , Burnside learned that Mother had no prenata l care
and that Mother met the c ri te ria to transfe r for i n pa tient psychiatric care

. On May 27,
Amber tested po sitive for amphetamines and me thamphetamine s . Near that s ame time, J o e y again tested positive for amphetamines and methamphetamine s . Because
of the se iss ue s, t he c hildren were r em oved from Mother ’ s care, remained with Father,
and Mothe r began t o live with her cousin ( Second Cousin) “who also was going to supervise [Mother] with her children during [ visitations ]

. ” During this ti me, Mother allege d th a t Fath er wa s u sing drugs. Al th ough Father showed up for drug testing once , a fter he l earned it was both a hair and ur ine test, he left without taking the test. Mother also alleged that she had had a recent altercation
with Father and t hat he had b ro k en her phone during the altercati on . Burnside
learned that Mother and F ather had a prio r history of “mu ltiple c ases” wit h the Department

. She also learned that Father had a prior convic tion for assault causing bodily i njury to a fami ly member. Because both parents app eared to be using dr ugs,

6 As Joey ’ s medical record s explain, meconium is an infant ’ s earliest stool that

“ begins to form bet

ween the 12 th and 16 th week of ges tation

. ”5

because Mot her was experiencing suicidal id eations in the children’s presence, and
because of ongoing domestic violence, the children were removed from Fathe r’s care and p laced in a temp orary home

. On May 21, 2020 , the Department su ed for conserv a to rship of all six children
and to term i nate both Mother ’ s and Fa ther ’ s p arental rights to them. O n May 29, 2020, the tria l court signed a n order appointi ng the Departme nt as the children ’ s temporary managing conservator

. By the time of trial, the three yo ungest child ren were living in a foster home , while the three oldest children were living in a genera l
residential child

- care faci lity

. B. Mother ’ s Pretrial Motion for Continuanc e Two days prior to trial, Mothe r file d a motion for continuance. In her m otion,
Mot her argued that she needed more time to com plete her services and to explore placement of the ch ildren with Mother’s sister ( Aunt ) in California.
The trial court heard Mother ’ s mot ion for continuance on the m orni ng of the first day of trial

. Mother and Aunt test ified at the hearing

. Mother said that at th e tim e of trial she was attending counseling and parenting classes. Mother identified
two individuals

—

Au nt and Great A unt

— with who m she w anted to seek the
children ’ s placement whi le she attempted to complete her services

. Both Aunt a n d
Great Aunt live d in California. According to Mother, Aunt had begun taking classes

to become a certi fied placement fo r the childre n, b ut Aunt had experienced delay s in
seeki ng cer tification beca use o f COVID pandemic lo ckdowns

. Mother claimed t hat6

she had identified Aunt as a placement for the Department since the beginning of th e case but that she “never heard a nything” f rom th e Department.
Aun t testified th at sh e had been con tacted by the Depart me nt shortly after the
ch i ldren were removed. By A unt’s account, the Department inform ed her that she “was going to be put last” because of a pri or fe lony related to drug trafficki ng and
that California’s De partment of In terst ate C ompact on the Placement of Children ( ICP C ) had not beg u n the process of determining if she was a proper p lacement for
the children.
Aunt said that she liv ed in a two

- bedroom apartmen t that housed three people. She explained that sh e had talked to someon e at ICPC and t h a t she k ne w she would have to move depending on how many childre n might be placed with her. She admitted that a prior D ep a rtm ent caseworker had requ ested a childcare b udget, but she did not provide one.
T he trial c ourt denied M othe r ’s co ntinuance motion , and a tw o

- day bench

- trial
ensued

. 7
C. The T rial
On the first d ay of trial , t he trial court heard testimony from Burnside , Kath erine Smi th (a permanency supervis or with the Department ), Tayland Glover ( a permanency specialist with the Department ) , Amanda Sph a r le r ( a n emp loyee of

7 The bulk of the trial occurred on March 24, 2021. [2RR 1] Th e trial continued
on April 5, 2021, when the t rial court interviewed the three oldest children. [3RR 1]7

CASA of Ta rr a nt County

) , Mother , and a foster father to Amber, Au brey, and Joey

— the three youngest children

. On the second day of t rial, the trial court interviewed the
three olde st children

— Gabby , Al ex , an d Ha rr y. 1
. Mother and Fath er
M other and Father professed love for t heir chil dr en. And the three olde st childr en expressed an affinity for their parents and a desire to stay with them

. But

on e Department w

it ness testified t hat the three younge st c hildren d id not respond
well to M o th er an d appe ar ed d etached from her , describing the vi sits Mother had with
them as “ v ery poor
. ” The Department ’ s investigation and subseq ue nt dealing s with Mother show

t ha t Mo ther h a d drug

- use issues, mental

- health iss ue s, and h a d been in mult iple
domest ic

- a ss a ult situations with Father. Because of these concerns, a service plan was
d eveloped for Mother

. Under the plan , Mother was t o complete a sub st an ce

- a buse

ass essment, engage in individual counseling, address domes ti c vio len ce in the
indiv idual co u ns el ing , a nd complete a mental

- health evaluation

. She also ne e d ed to demonstrate the ability to maintain s ta ble housing a nd stable emplo ym en t , a s well as visit the children regularly and submit to ra n dom drug tests

. Acco rd ing to t he Department ’ s witnesses, M other did not complete any of these services.
Mother ’ s inability to follow her service plan was apparent al most immediately.
F or examp le, w hi le the children were still placed with Father, Mother moved out of
Second C o usin’s h ouse, went to F ather’s hom e where the children were re siding , and8

initially refused to leave

— breaking the safety plan that w as put i nto plac e soon a fter
the children ’ s remo val

. M other told a Department worker that she and Fa ther had gotten into an alterca tion that day and that he ha d broken her pho ne. M oth er alleged
that she le ft Second Cou si n ’ s house and returned to Father ’ s beca use s he was having problems with Second Co usin , s o Moth er eventually agreed to go to a shelter, but
M other left the s he lter and returned to Second Cousi n ’s house in less than a day. Throughout the pendency of this case, o ther than a couple of brief stint s with
Catholi c Cha ri ties and Christian Works , Mother never engage d in individual counseling. Mother rarely submitte d to drug tests, and when she d id, s he often tested positive for methamphetamine s , including positive drug tests in January 2021 and
March 2021

. Mothe r admitted to a case worker that methamphetamine was her drug
of choice and that sh e w as often “ s t r uggling w ith her a ddiction

. ”
Mo ther also n ever took her psychological assessment
. Although Mother did
get a part

- ti me job in Octobe r or November of 2 020 and was a llege d to be emp loyed at the time of trial, she never provided payc heck stubs or p roof of pe rmanen t

e mployme nt to any of her casework ers . Mother only visited the chil dren roughly 60
or 70 per cent of the time , an d sh e wa s often late to the visi tat i ons s he did attend

. And once durin g the pen dency of the case , Mothe r was cit e d for domestic violence
and t a ken to J ohn Peter Smith Hospital for a three

- day p sychiatric hold. Another
time durin g the pend ency of the case, Moth er r ep orted that she was homeless. A t the9

time of t rial , Mother lived in an apartmen t , but her name was not on the le ase, the
peop le le a sing the apartment h ad moved away , and Mother was f acing removal.
M other testified that she knew th e c as e ha d been going on for almo st a y ear at the time of tria l. She said that she d e sired the children be placed wi th Second Cousin
in C alifornia wh ile s he attem p ted to complete her servi c es . She also cl a imed that she
and Father were n o w separated. Acco rdin g to M other , the reason she wo uld miss
visitations was b e cause of her lack of transportation , her lack of emp loyment, and
because th e Department woul d not assi st her. She allege d that she had beg u n working toward t he e nd of November 2020 cleaning h ouses a n d testified that she was employed at Family Do l lar

. M other clai med she was unable to compl ete her services
or reg ularly attend visitation because of her lack of r esource s and complica tions from
the COV ID pandem ic

. Mother claimed that s he h ad attended coun seling at Catholic C har ities and
Christian Works , and she said she was still going at the time of trial

. Mother professed love f

or all h e r chi ldre n . And she sa id t hat she ha d alway s watched out for
her children, m ade sure the y di d well in school, a n d p articipated in their athletics ’
programs. Mother bla med her in ability to perform her se rvices on the lack of

a ssistance from the Department , even st a ting tha t the Department was tryin g to make
her look li ke a bad mother. She said s h e w as always at her visitations but often was
late , a nd the Department would cancel the visits. Mother implied that she ha d10

rem a ined sober during the pendency of this cas e , and she had n o explanation for w hy

tw o of her childre n had tested posi t i ve f or m eth amphetamine s . Concerning Father , the Department put on evidence that Father was con victed of assault causing bod ily injury to a family member in March 2019. A lthough F a ther did comp lete so me of h is serv i c es, which we r e simi lar to Mother ’ s except he also was
to attend the B atterers I nt ervention Preven tion P rogram (BIPP), his ability to complete th ose serv

ices stopp ed around August 2020 when he was arrested on a
separate d omestic

- viole nce cha rge . 8 A t the time of trial, Father remained in jail on
that pending charge and was fac ing immigration consequences

. But even when
Father was at te mptin g t o comp let e his services, he never provided proof of stable
housin g or pay stubs

. A c a seworker did speak with som eo ne who claimed to be
Father ’ s employer , but the caseworker was unable to ascertain details regar di ng hours

wo rked or income. As to drug use, Mother told a Department case worker that F ather used drugs , a n d Father ref used t o take a drug test. Father admitt ed to a caseworker
th at he had refused the drug test because he had used mari juana and had used methamphetami ne with Mot her.

8 The re cord reflect s that Mother and F ath er got int o a dome stic

- violence event in August 2020, the police were ca lled, and Father was arrested on an outstanding domestic

- violenc e warrant for a Ju ne 20 20 inc ident.11

2. T he Thre e Young e st Childr en — Amber, Aubrey, and Joey
A f t er attempts to p lace the six chi ld r en together, because of the childr en ’ s respective ag es, the three youngest children and the three oldes t children were separated

. Accordi ng to t he Depar tmen t ’ s witnesses, t he t hre e younge st children were in a “dual licensed adoption

- motivated home.” On e casewo rker t estifie d that the fos ter
pare nts were lovi n g and caring toward the three younge st children and they went

“ a bove and beyo nd to ensure the chi ldren receive [d]

. . . med ical and dental [care ] , ” as opposed to when the kids came into care an d “ had very poor hyg iene. ” The f

oster
pa ren ts had enrol l ed th e children in academic pro grams to help them get caught up
becau s e wh en they came into care , “they were seve rely b ehind academically.” According to testim o ny, the three younge st children were “thrivi n g , ” and the f oster parents were ab le to meet the childr en’s physical, emot ional, and financial needs in th e future

. Amber and Aubrey were now making good g rades and “ e x c ellin g in school

. ” The Department’s pla n was fo r the three younge st children to be a d opted by the foster family. The f

ost er family ha d agre ed to allow po st

- adoption contact among the
six s iblings.
Fos ter Father test i fied that the three younge st child re n had been in his and hi s wife ’ s home continuously for the ten m onths prior to trial. A ccording to Fo ster Father, the c hildren were “ d oing f antastic. ” Foster Father described the

tran sformation of t he children , most specifically A mb er , under foster care:12

Em otionall

y when they came into our care, especially [Am ber] , the oldes t of t he thre e younge rs, wa s very introverted. She s howed signs of
e xtreme anxiety. On e of the shocking thi ngs that she said m ore than once was that people mad e her nervous. That was e arly on. Now, she has become very outgoing. She ’ s making friends on her o wn. Sh e ’ s got multip le friends in the nei ghbor hood. So a huge difference in her ability to interact w

ith other people s i nce coming into our care.
F oster Fat her said that he and his w ife “ [v]ery m uch so ” ha d an interest in adopti ng the three youngest c hildr en . 3
. The Th ree O ldest Children
— G abby, Alex, and Harry
The three oldest c hildren were living in a genera l residential child

- care facility at the time of trial

. A ccording to one cas ewo r ker, Gab b y was in band and doing well.
Alex was doing we ll in s chool , going to the rapy o nce a week, and was on medication
fo r mood and sleeping i s sue s and responding well to treatment
. Harry was also doing

w ell in school. A l though described as doing well in their current placement, t he thr ee olde st children were not in a n adopt ion

- mot ivated foster home gi ven their ages

— b y

t h e time of trial, G abby was two month s away from aging out at eighteen

. The three oldest children were interviewed by the trial court judge

. In response

to a que stion concerning how he felt about Mot h er’s parental rights b eing termina ted, Harry said that he wished the cour t would give Mother more time to com pl ete her
services because Mother h ad been “having troubles, like, with phon es and cars . . .
stuff like tha t.” He also said that he would like t o stay wit h M o t her and th at she had
never hurt him. By Harry’s account, he had visited w ith Mother via Z oom the week pri o r to trial.13

As to his relationship and desires regard ing Father, H arry said that he had been having phone conversations wi th F a ther t wi ce a week. Harry stated th at he had a good relations hip with Fath er , that he liked being ar ound Fat h er, and that he wanted
to continue to see him. H arry a sserted that Fa ther was doing his services , but that
because Father wen t t o jail, he did not get t he chance to complete t hem. It wa s Harry’s underst an di ng that he and his sib lings ha d been “taken away ” by the
D epartment because of Mother and Fathe r arguing “and stuff like that.” Harry said
that Father had n eve r struc k him and that he felt safe aroun d Fat h er. Har ry described
Father a s “a good dad.” Acc o rding to Harry, h e was not afraid that Father wou ld hurt
M other. Harr

y said that he was doing well in school and making As an d B s i n his
classes. But he said t ha t he was happier when he lived wit h M o ther and that he ha d a good re l ati onship with a ll of hi s siblings.
G abby t estifi ed that she was doin g well in high school making As, Bs, and Cs,
and that sh e e xpe c ted to graduate by the end of the foll owi ng year. Gabby sa id that
she did not thin k it wa s fair that Fa the r’s parental right s could be terminate d bec ause h e was unable to compl ete his services in jail. She expressed confid enc e t h at Fath er could provide for all of the sibling s. Gabby voiced a desire t hat the court let Mother
h a ve more time to complete her services, citing that M other w as now emplo yed and
looki ng for a bigger home for the family. According to Ga b by , she was not afraid of either parent and n either parent ha d ever hurt he r. S he said s he had n e v er seen her14

parents do drugs or hu r t each other. Gabby wished to be returned to her paren ts, and
she wanted to live with all of her si bli n gs. Alex testified that it w as his desire to li v e wi th Mot he r and Father and that he

t o o was asking the court to give his p arents more time to com ple t e their servi ces. Alex stated tha t he had a relat ionsh ip with his younger th ree siblings and tha t he
would like to see a ll the children remain wit h Moth er and Father. Alex said he was doing okay in school. He al so said tha t he had never seen his parent s do illegal d rugs in the family’s home and that he had ne v er s een any violence in the family ’ s home

. 4. Recommendation s A casewo r ker testifi ed that the Departmen t was a sking the court to t erminat e parental ri ghts to both Mother and Father f or all six ch i ldre n and tha t the Department
beli eve d it w as i n t heir best interests given Mother ’s continu ed drug use, her mental health issues, and ongoing domestic vio le nce between the parents. Furthe r, accordin g to the Department, Mother ha d not shown she c ould par e nt all six ch ildren d ue to her
la c k o f income an d empl o yment. The Department also cited that Father was currently in jail for do mestic viol ence, was less th an for th coming about his own drug

use, a nd was on a two

- year

- immigration hold.
CASA repres entati

v e Spharl er s a id th at she was famil iar with the children ’s case and that it was CA SA’s recommendation to terminate both parent s’ rights as to the

t hree youngest children

. Sp harler mentioned that t he three youngest children were doing very well in th eir c u r r e nt plac emen t , that they d id not have a significant15

re lationship with their biolo gical parents, and that Mother and Fath er ha d not completed their service s. As t o the three ol de st children, S pha rler said that CASA
recommended that Mo ther ’ s an d Father ’ s p arental right s not be terminated a nd that
the Departmen t be appoint ed their permanent managing conservator

. The children ’ s

atto rn ey ad litem s aid that his recommendati on was co nsiste nt with CASA ’ s . 5. The T rial C ou rt ’ s Ruling The trial court found by c lear and conv incing evidence that terminat ion of
Mother ’ s and Father ’ s parental r ights to Ambe r, Aubrey, and Joey was in th e children ’ s be st interes t and t ha t the Departm ent had established b y clear and
convinc ing ev

id enc e the co nduct grounds under Subsec t ion (D) (e nda ngering
envi ronment

) , (E) (end angering con duct), (N) (constructive ab andonment) , ( O) (failing to complete ser vi ce plan) , and (P) (

use of a cont ro lled substan ce)

. See Tex. Fam. Code Ann. § 161.001 ( b) (1) (D ), ( E) , (N) , (O), (P), (b)(2). The tr i al court thus
terminated Mother ’ s and Father ’ s parental rig ht s to the t hree youngest children and appointed th e Department a s their perma nent ma na ging conse rvator. As to the three
oldest chil dre n , the t rial court appointed Mother and Father their possess o ry

conservato rs and the Department as p ermanent m anagin g c onse rvator
. 6 . Mother and Fath er Appeal
Mother an d Father have b oth ti mely filed a notice of appeal. Ne ithe r parent
ap peals the tr ial co urt ’ s ruling regarding the three oldest children. Mother c h allenges
the trial co urt ’ s ruling on her motion for con tinuance and the tria l court ’ s best

- int erest16

finding s regarding the three youngest children

. Fath er ch allenges only the trial court ’ s best

- in te rest fi n ding s regarding the thre e younge st children.
I I I. D ISCUSSIO N
A. Mother ’ s Motio n for Cont inuance
In her f ir st issue , Mo th er argues that the tria l cou rt abused it s discre tio n by
den ying her motion for cont inuance. Much like she ar gued in the trial court, Mother
contends th at she was prevented from co m pleting her s ervic es and securing Aunt as a certified pl ace ment for the children because of the COVI D p a n de m ic

. We revi ew a trial co urt ’ s ruling on a motion for c on tinuanc e for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand , 83 S .W.3d 789, 8 00 (Tex

. 2002).
We do not su bsti tute our ju dgment for that of th e trial cour t. In r e Nitla S.A. de C.V. , 92 S.W.3d 419 , 422 (Te x. 2002) (orig. proceeding). In stead, we must determine
whether the trial court ’ s action was so arbitrary and unrea sonab l e as t o amoun t to a clear and prej udic ial error of la w. Jo e v. Two Th irty Nine Jo int Ven t ure , 14 5 S.W.3d 150, 161 (Tex. 2004

). As a pre liminary matter, we note that Mother ’ s motion for continuance was not verified or supported by affidavit. As p oin ted o u t by the Depa rtment , Rule 251 of t he
T exas Rules of Civi l P r ocedure requ ires that a motion for continuance be verified or supported by an affidavit. Tex. R. Civ. P. 251 ; see Serrano v. Ryan ’ s Crossing Apartments , 241 S.W.3d 560, 56 4 (Tex. App.

— El Paso 20 0 7 , pet. denie d)

. “ I f the motion i s no t verified or supp ort e d by af fidavit, we presume the trial court did not abuse its17

discretion ” by denying it. Serrano , 241 S.W.3d at 564 (citing Sw. Count ry Enters., Inc. v. Lucky Lady Oil Co. , 991 S.W. 2d 49 0, 493 (T e x. App.

— Fort Worth 199 9, pet. den i ed))

. Thus, because M o th e r ’ s motion for contin uance was not verified or supported by affidavit, we cannot say that the trial court abused its discretion by denying it. Putting aside the lack

- of

- verification iss ue , when a parent, throu gh his o r her
own cho ices , fails to com ply wi t h a service plan , and then at the time of the termination trial request s a continu ance in order to complete the plan, the tria l cou rt d oes not abuse its discretion b y denying the continua nce . See In re K.P. , N o. 2

- 09

- 0 28

- CV, 2009 WL 2 462564, at *4 ( Tex . A p p.

— Fort Worth Aug. 13 , 2009, no pet.) (mem. op.) ; In re M.M.F. , No. 02

– 08

– 0 14

– C V, 2008 WL 5265033, at *13 (Tex. App.

— F ort Worth Dec. 1 8, 2008, no pet.) (mem. op.)

. Here, e ve n though the order se t tin g the
tria l date fo r March 24, 2021 , was signed on Ja nua r y 12, 2021, Mo th er di d not file her motion for continuance until March 22, 202 1, two days before trial. Also, the record
establishes that Mother agreed to par ti cipate in he r service plan in Apri l and May of
2 020 , ten to eleven mo nth s prio r t o trial

. Par t of her services included that she attend drug counselin g and no t test po sitive for illegal sub stances such as methamphetamine s
— t he very substance t ha t Joey tested positive for at birth

. The

rec o rd fur ther re v eal s that Mo ther tes t e d p ositive f or methamph etamines in January 2021 and March 202 1

— shortly before the trial began on March 24, 2021

. When quest

ioned about her dru g use at the continuance hearing on the morni ng of
trial , Mother gave evasiv e answ e r s .18

As to Mother ’ s contention that she needed mo re time so th at Aunt could be a pl acement for the children , the reco rd shows that the Department was w ary of placing
the chil d re n with Aunt give n her past fel ony con viction involving drug traffic ki n g. Also, Aunt, de s pite being contact ed by t he D epartm ent shortly a ft er the children had
been removed , ad mittedly faile d t o provide a child care budget for the Department.
And Aunt wa s one of three p eo ple living in her two

- bedroom apartment, a ho me Aunt admi tted she had b een told would not be adequa tely sized to have the c hil dr en placed with her.
Under these fa cts, we cannot co nclude that the trial court abused its di scretion by denyi ng Mother ’ s mot ion fo r continuance

. 9 See In re K.P. , 2 00 9 WL 2462564 , *4 ( holding that tria l court did not abuse di scretion by den ying a mother ’ s motion for
continuance when eleven mo nths int o case mo ther had not completed her services
and had t ested positive for d rugs f ifty days pr ior to trial date). We ove rr ule Mother ’ s firs t issue.

9 We likewise reject Mother ’ s arg u m ent that the COVID pandemic necessit ated
a con tin uance in th is cas e . See In re A.L.H. , No. 04

- 20

- 00452

- CV, 2021 WL 1110612, at *2 (Tex. App.

— San Antonio Mar. 24, 20 21, pet. denied) (mem. op.) ( holding t rial court d id not abuse it s discretion by denying c ontinuance during COVID pand emic when appellant ’ s m otion for continu ance was not supported by affidavit , and appellant rel apsed after release from d rug

- treatment program)

.19

B. Best

- Interest Findings
I n Mother ’ s second issue and Fat her ’ s sole issue, they c hallenge the tria l court ’ s fi nd ings th at termi nation of their respective parent al rig hts to Amb er , Au bre y, and Joey was in each of the child ren ’ s best interest. B oth Mo ther a nd Fathe r argue that
the tri al court could not have made these findings and at the same ti me have a llowed them to remain possessory conservato rs as to th e three olde s t chil dren. We d isa gr ee. 1
. Standar d of Review Genera lly
In a termina t

io n case , the State seeks not jus t to limi t paren t a l rights but to

eras e them pe rmane nt ly and

— exc ept for the ch il d ’s right to inh erit

— to divest the
p arent and ch i ld of all legal righ ts, p rivi leges, du ti es, an d powers no r mall y existing
be twee n them. Tex. F am . Code Ann. § 161. 206(b); Holic k v. Smit h , 685 S

. W.2d 18, 20 (Tex. 19 85). Thu s, “[

w] hen the St ate seek s to s ev e r permane ntly t he relationship
betw een a pare nt and a child, it must firs t ob serve fun da mental ly fair pro c edur es.”
In re E .R. , 385 S.W.3d 55 2 , 554 (T ex. 20 12) (c iting Santosk y v. Kram er

, 455 U .S. 745,
747

– 48, 102 S. Ct. 1 388, 13 91

– 92 (198 2)).
Cl ear an d c onvincing evide nce must support the decis ion to terminate. See
Tex. Fam. Cod e Ann. §§ 1 61.001 (b), .206(a ) ; In re E.N.C. , 3 84 S .W.3d 796, 802 (T ex. 20 12). Becaus e “[a] parent al rights termin a t ion proceeding encum bers a va lue ‘ fa r
more pre cious th an any p r operty ri ght,’” due process demands this heig ht e ned
standard. E.R. , 385 S.W. 3d at 555 ( quotin g Santosky , 455 U.S. at 758

– 5 9, 1 02 S. Ct . at
1 3 97 ). To be cl ear an d convincing, evidence must “ p r oduce in the mind of the trie r20

of fa ct a firm belief o r conv ic t ion as to the t ruth of the allegati ons so ught t o be
established.” T ex. F am. Code A nn. § 101.0 07 ; E.N.C. , 384 S.W.3d at 802

. F or a trial cou r t to ter minate a par ent

– child rel ationship , the p a r ty seeking
terminati on must e stabl is h, by clea r and co nvinci ng evidence, that (1) the parent’s

act ions s atis fy just one of the many pred icat e grou nds l isted in Family C o de S ection
161.00 1(b) (1), and (2) t e rm inatio n is i n the child’s best interest under S e c tion 161.001(b)(2). 10 Tex. Fam . Cod e Ann. § 161 .001(b)( 1), (2 ); E.N.C. , 3 84 S. W.3d at 803; In re J. L. , 16 3 S. W .3 d 79, 84 (Tex. 2005)

. 2
. L e gal S uf

f ic iency
When ev alu ating the evi d ence for legal suffici ency in ter min ation c ases, we determine wh e ther th e eviden c e is such th at a factfinder co uld rea so nably fo rm a firm
belie f or c on viction that the Depa rtment prov ed that t erm ination is in the child’ s b es t
interest. In re J.F.C. , 9 6 S.W.3d 256, 266 (Te x . 20 02); see In r e J.P.B. , 180 S.W.3d 570,
573 (Tex. 2 0 05)

. W e r eview al l the ev idence in the light most f

avora ble to the finding s and judgm ent, and we resolve any disputed fac t s in favor of t he findings if a

r easonable factfinder could have done so. J.F.C

. , 96 S.W. 3d at 266. We con sid er evid en ce f

avor able to t erm ina tion i f a reason able factfind er cou ld, a nd we d isregard
contrary evide n ce un less a reasonable fa ctf inder could n o t. See id

. In doing our job,

we must reco gnize that weighing a witness’s credi b i lity is the fa ctfinder’s p rov ince, n ot

10 Mother and Father do not chall enge the fin dings of predic at e grounds for terminatio n , but they challenge the trial court ’ s best

- i nter est findings.21

our s. J.P. B. , 1 80 S.W .3d at 5 73. And even when cr edibil ity i ss ues a ppear in the appel late r ecord , we defer to the fa ctf inder’s deter m inat

ions p rov id ed they are not

un reasonable

. Id.
3
. Factual Su fficiency
We mu s t perfor m “an exacting rev iew of the e ntir e re cord ” whe n d eter mining
wh ether the evidence is fac tual ly suffic ient to support termina ting a parent

– child
relati o n ship. In re A .B. , 437 S .W. 3d 498, 500 (Tex. 201 4). In a factual

- s ufficiency

r eview, we give d u e defere nce to the factfin der’ s findi n gs a nd d o no t sup pla nt t hose
f ind ings with our own. In re H.R .M. , 209 S.W.3d 105, 108 (Tex. 2 006)

. We det e r mine whether, on t h e ent

ire r ecord, a factfin der could re asonably f orm a firm bel i e f or conviction that termi na tion i s i n t he chil d’s best intere st. T e x. Fam

. Code Ann. § 161.001(b ); see In re C.H. , 89 S.W. 3 d 17, 25 (Tex. 2002 )

. If, in light of the ent ire record, the disput ed e vid en ce is so significan t that a factfinder could n ot r easonab l y have f ormed a f irm b el ief or co nvi ction i n the tru th of its fi n di ng, t hen the evidence is
fa ctuall y insufficient

. H.R

. M

. , 209 S.W.3d at 1 0 8.
4
. The Holley Fac tors T h ere is a st r ong pre su mpt io n t hat keeping a ch ild with a pa rent is in the child’ s best in t erest
. In re R

. R

. , 209 S .W.3d 1 1 2, 1 16 (Tex. 2 0 0 6 )

. W e re view the e ntire

recor d to determine the chil d ’s best i nterest. In re E.C.R. , 402 S.W.3d 239, 2 50 (Tex

. 20 1 3). Ev

id enc e th a t is probative o f the predicate grounds und er Section 161.001(b) (1) may a l so be p robative of best i ntere st und e r Section 1 6 1

. 00 1(b) ( 2). I d.22

a t 249; C.H. , 8 9 S.W.3d at 28. Nonexclusive fact o rs that t he factfi nder in a termination case may a lso use in d etermin ing the c h ild’s best inter est include:

• the child’s desire s;

• th e chil d’ s emotio n al and p h ysica l n eed s now and i n t h e futu r e;

• t he e motional and physical d anger to the child now a nd in the future;

• the parental abilities of t h e indiv idu a l s seeki ng custod y ;

• the progra ms available to assist these indiv iduals to promo te the chi l d’s best inter es t ;

• the plan s f

o r the c hild b y th ese i ndividual s or by the agency seeking custody ;

• the stability of the home or proposed placem e nt;

• th e parent’ s acts or omissions that m ay indicate t hat the existing pare nt

- child
r elati on ship is n ot a pro p er on e; and

• the pa r e n t ’s exc u se, if a ny , fo r the acts or omissio ns. Holley v. Adams

, 5 44 S.W.2d 367, 371

– 72 (Tex. 1976); see E.C.R. , 40 2 S.W.3d at 2 49;
E.N .C. , 384 S .W.3d at 807. T hese factors do not form an exhaus tive list , and so me facto r s may no t appl y t o s o me cases. C

. H

. , 89 S .W.3d at 2 7. Furt hermor e, undisput ed evidence of just one factor ma y suffice in a particular case to suppor t a find ing t hat ter mination i s in the child’s best interes t. Id. On the other hand, th e
pres en ce of pa l try evid e nce r el e van t to each f a c t o r will not su pp or t such a f indi ng. Id. ; I n re C.G. , No. 02

- 20

- 00 0 87

- CV, 20 20 WL 451 8590, at *7 (Tex. App.

— Fort
Wor t h Aug. 6, 2 0 20, pet . denied) (mem. op.); In r e J.B. , No. 0 2

- 18

- 00034

- CV, 2018
W L 3289612 , at * 4 (Tex. Ap p
. — Fort W o rth J ul y 5, 2018, no p e t
. ) ( mem. op.).23

5. Analysis of t he Holley Fac tors As to the childre n ’

s desires , Amber, Aubrey , and Joey (who was only eleven m ont hs
old at t he time of trial) did not testify

. A Department caseworker, however, when
discussi ng the t h ree y oungest children a nd the fo s ter pare nts, testified that “ [t]he
children ha [d] expressed to [her] their desire to stay where they ’ re placed. ” Even so,

“ a child ’ s preference should not be consid ered absent a showing of sufficient maturity, ” In re D.W. , 445 S.W.3d 913, 92 6 (T ex. App.

— D allas 20 14, pet. denied), and
there was no showing that the th ree youngest children were sufficiently mature to

e xpress a preference as to their placement

. There is , however, e videnc e in the re cord
that Amber, Aub rey, and Joey were not bonded to Moth er an d that h er visits with
them were “ ver y poo r. ” Thu s , this factor weigh s sligh tly in favo r of t he tr ial court ’ s best

- interest find ings as to Mothe r , and this fa ctor weigh s nei ther in favor of nor agains t th e t rial c our t ’ s b est

- in terest fi n ding s as to Father

. See E .N.C , 384 S .W.3d at
808.
Concern ing th e chil

d ren ’s emotio nal and physi

cal n eed s no w and i

n t h e future and the

e motional and physical dange r to the child ren now and in the future , the record r efle cts that
Mother s uffer e d from una ddressed mental

- he alth iss ues. 11 Indeed, the Department

11 N otably, neither Mother nor Father challenged the trial court ’ s predicate findings und er 161.001(b)(1)( D) and (E)

. See Tex. F am. Code An n. § 161.001 (b)(1)(D) ( termination appropriate when parent has knowingly placed or knowi ngly allowe d th e child to remain in conditions or surrou nding s that endanger the physical or emotional well

- being of the child), ( E) ( termination appropria te when24

first became involved because Mother h ad set the roo m sh e w as in on fire even though s he was pr egnant and other ch ildren were in the h ouse. Moth er ’ s expla na tion for starting t he fire was t h at “ she was having some iss u es w ith [ Father] and . . . was
tired and that she wa nted to basically die. ” Du ring the pendenc y of this case, Mother
was invol ve d in a domestic dispu te with Father an d pla ced in the h ospita l on a th ree

da y psychia tr

i c hol d. Mo ther did not comple te person al counse ling ; she never went to
any type of counseling for do me stic abuse ; s he struggle d with methamp hetamine
addi ct ion ; a nd she never took a p sychological ass essment. T h is behavior by M othe r exposed Amber, A ubre y, and J oey to emotional and phys ic al dang ers. Ind eed, both Joey and Amber tested pos iti v e fo r amphetamine s and methamp hetamines. And
Mother ’ s lack of effort to re solve the is sues le d to the conclusi on that if the ch ildren stayed in her care, th ey wou ld continue to be exposed to these b ehavio rs, meaning
their emotion a l an d physical needs would be in danger in the future i f M o t her ’ s
pa rental rights were not ter minate d.
Father was in jail at the time of trial be cause of a dom estic

- viol ence c harge and
ha d shown a pro pen sit y in t he past to commit d omestic v iolence

. Because of his
dom estic

- viol ence c h ar ge , Fath er was facing immigration consequenc es. He also
demonstrated the propensity to use i llicit drugs. T hese behavior s by Father al so

ex pose d Amber, Aubr e y , a nd Joey t o emotion al and phy sical dan gers. An d even

paren t has engage d in conduct or knowingly placed the child wi th persons who engaged in condu c t that end ange rs the physical o r emotional well

- being o f the child ).25

thou gh Fa th er attempted to complete his services, he w as jailed du e to a domestic

violence charge and unable to com plete them . Father ’ s ability to sabotage his effo rts

to correct his behavior s show s t h at t he thr ee younge st childre n ’ s emoti o na l and
p hysical needs in t he fut ure would also be in danger if Father ’ s parental rights were
not terminated.
Mor eover, whe n the t hree y oung e st children were first placed in the fos ter home, they had very poo r hy gie n e, d emonst rating that their p hysical n eed s had
p reviously been i n danger. In contrast, in their cur rent placeme nt, they are housed
with a famil y that was described as goi ng “ ab ove and beyond ” what was necessary to provide the children with the ir me d ic al and d ental

- care needs. When A mber and
Aubre y ar r iv ed in foster care, they were behind ac ademi cally, but then they enrolled in
academic programs and did well

. And when A mber first arrived in foster care, she
was in t r ov e rted and nervous aroun d others, b ut then she be came outgoin g and m a de
her o wn f ri end s. Th es e ex a m ples serve as more evidence tha t it is prop er that Moth er ’ s and
Father ’ s parental right s should be terminated and that the children ’ s emo t io n al and physical nee ds in the future be met by the foster family

. Additiona lly, ne ither Mot her
nor F ather d emonstrated an ability to pr ovid e a stable living environment or the
abil ity t o maintain stable employment to provide for the physical n eeds of t h e

c hildren.26

I n short, the evidence cas ts doubt on the pare nt s ’ a bility to ( 1) under s tand the ir
childr en ’ s needs and provide for the emotional and p hysical needs now and in the
future and (2) understand and recog n ize the emotiona l and physical danger to t he

c hildren now and in the future. This factor weig h s in fa vo r of the t r ial cou rt ’ s best

inte r es t find in g s . Regard ing the parental abilities of t

h e individua l

s seeki ng cus tod y , the e vidence s howed
that Mother and Father love their c hildren. However, th e evid ence also showed that
Mother did not co mplete parentin g clas ses, individual cou nse ling, or dru g

- a buse

assistance programs. An d the record further reflect ed that Father was una ble to

com plete his s ervices due to bei ng in jail for a d om e stic

- violence charge

. Moreove r, Mother attended only 60% or 70% o f her vi si tati ons , she was often late , and her
in te ractions with the three younge st children when she did attend visitations w ere described as “ ve ry poor. ” Father ’ s vi sitations were limited by his incarcer ation. In
contrast, t h e fo ster parents have provi ded the three yo ungest chi ld ren w ith an

en vironment that has allowed the ir psychological and educational situation to improve. This factor weigh s in favor of the t r i al cou rt ’ s best

- inter es t finding s . With res pect to the progra m

s available to a ssist the se indiv iduals to pr omo te the ch i

ld re n ’s
b est inter es t , multiple caseworkers testified about Mother ’ s failure to complete her
services. A nd F ather co ul d n ot complete his , including BIPP , which was p aram ount to Fath er giv en his propensity for domest ic vi ol ence. T his fa ctor weighs in f avo r of
the trial cou rt ’ s best

- inter est finding s .27

As to the parents ’ and the Departm ent ’ s plans for the children , th e re c o r d demonstrates
that Mother ’ s plan w as to p lac e the children with Aunt who ha d a pas t f elony

a ssoc iate d with d rug tr afficking, who live d in a ho use inade quate to accommodate the children, and who ha d made little effort to demons trate the ability to be a p la cement for the children. Aunt eve n fa iled to provide the Departm ent with the r eq uired
chil d care bu dg et
. The Depa r t ment ’ s plan was to leave th e childre n with the foster parents, who were adoption motivated and with whom the child r e n ha d improve d physical ly , emoti onall

y, and educati on ally. The foster family p rovide d the c hild ren with med ical and de ntal ca re, an d they a nd the children h ad bonded with eac h other. This factor weighs in favor of the t rial court ’ s best

- interest findin g s . Concernin g the stability o

f the parents ’ home ve rs

us the propos ed placement o

f the childre n , Mother c onsis tently demons tr ated the ina bil ity to provide the children with a s table living environment. Indeed, at one time she was homeless, and at the time of trial , Mother was livi ng in an apartment tha t was not lease d in her name, the le s s e e s ha d

mo ved out, and she was facing r emoval. And Fa ther was in jail, was fa cin g immigra tion issues, and never provided the Department with proof o f the abilit y t o
p rovide a stable living environmen t. In cont ra st, the children ha d be en in a stab le
home since b eing placed with the fos ter par e nts shor tly aft er being removed f rom Mothe r ’ s and F ather ’ s care. This factor weighs in favor of the t rial court ’ s best

i n t er es t finding s .28

Reg arding the parent

s ’ acts or o missions that m ay indicat e t hat the e xi stin g pare nt

- chi ld

r elati onship is no t a pro

per one , the r e cord reflects that the chil dren were removed f rom Mother ’ s care (1) because she had suicidal ideations an d h ad set th e room she w as i n

on fire despite being pre gn ant and other children be ing in the h ouse , a nd (2) becaus e J oey tested pos itive f

or amp h etam in es and methampheta mine s at birth, as well as
Amber test

ing positive for amphetamines and methamphetamine s . Th e children were

re m oved from Father ’ s car e because he r ef u sed drug te sti ng and admitted to
mari juana and methamp hetamine use . He a lso ha d a histo ry of domestic vio lence an d

wa s jail ed for a domestic

- violence charge at the time of trial. D e sp ite a serv ice plan to
assis t Mother with both her em oti on al issue s and drug addiction , Moth e r did no t complete a ny of her services related to th ese issu es , and she continually e ither fai led to

ta ke drug tests or teste d posi tive for methamphetamine s when s h e did te st. Eve n though Father attempted to compl ete hi s services, his jailing on a domes tic

- v io lenc e charge dur

ing the pendency of th e case pr e vented him fro m doing so

. These acts and
omission s by Mother a nd Father indicat e d that the parent

- child rela t i onship between
them and the three you ngest children wa s no t a p roper one. T his factor weigh s in
f avor of th e tri al co urt ’ s best

- interest fin d in gs. Wi th resp ect to any excuses for the parent s ’ a cts or omissions , Mother blamed he r fail ure for not completing h er services on circumstanc es and the Department, and at t i m es during trial , she evaded questions about her dr ug use. Father ’ s excus e for no t

com ple ti ng hi s ser

vices was that he was jailed on a domestic

- violence charge during29

the pendency o f th e case. T h e record reflects that he was arrested after police responded t o a domestic

- violence event between him and M other in Aug ust 2020,
and police found th at he h ad an outsta nding dome stic

- violence w arrant for a June 2020 incident. T his factor weigh s i n favor of the tri al court ’ s best

- interest
fin d in gs . Ci ting divorce c ases dealing with the pos sible s eparation o f sib lings and public policy against sepa r ati on , Mot her and Father argue that t he trial c ourt could not have

ma de the best

- interest findings supp o r ting termination of their pare ntal ri ghts as to
the three you nge st children but at the same time not ha ve termin ated their r ights to
the three old e st chil dr en. See Coleman v. Colem an , 109 S.W.3d 108, 113 (Tex. App.

— Austin 2003, no pet.) ; Autry v. Autry , 350 S .W.2d 233, 2 36 (Tex. App.

— El Paso 1961,
writ dism ’ d)

. But Mother ’s and Father ’s reliance on this l ine of ca ses is mispl aced. Indeed, it is n ot at al l uncom mon for a trial court to te rminate pa rental rights to some ch ildren and not terminate parental r ights to o ther children. See In re K.E. , No. 02

- 20

- 00 04 5

- CV, 2020 WL 4360493, at *2 (Te x. App.

— F ort Worth Ju ly 30 , 2020, pet. denied) (mem

. op.) ( affir ming tri al court ’s order te rm i nating a mother ’s parental righ ts to th ree yo ung est children and na m ing mother as possessory conservator of oldest child) ; In r

e J .O.A. , 262 S. W.3d 7, 14 (Tex. App.

— A maril lo 2008) (affirming portion
of trial court ’ s order terminating p arenta l rights reg ar ding two o f mother ’ s children
but not ter minat

ing parental rights as to mother ’ s third child ) , af f ’ d as modified and
remanded , 28 3 S.W.3d 336 (Tex. 2009)

.30

Father argue s tha t the trial court ’ s judgment is inconsiste nt becau se the “ same set of applicable f

ac ts as to t he pare nts and situation as a whole ” apply to both the
thr e e y oungest children and the three old est children. This is incorrect for a number
of reas ons . First, the three oldest c hildre n were able to exp ress the ir desires to the
trial court , b ut the three youngest child ren we re n ot. Second, t he three youngest
children were placed in an adoption

- motivat ed h ome where the fo ster parents care for

t he thre e you n gest children ’ s emotional and p hysical needs , wh ile the three oldest children (one of wh om was two m onths away from ag ing out of the Depar t ment ’ s system at the time of trial) were p laced in a general re si dential child

- care facility and finding them an adoption

- mot ivated placement was unlikely

. T hird , t wo of th e younger chi ldren (Amber and Jo ey ) teste d p osi tive for amphetamines and methamphe t amine s , but there wa s no evidence that a ny of the three oldest ch ildren

t ested posi tive for any illegal substan ces. I n additi on to these factual differences, it is impo rtan t to point ou t that the trial cou r t did not p lace the three olde s t children in th e care of either Mother or Father. Inste a d , the trial court named the Department
pe rmanent mana ging cons ervator of the three ol dest children and named both parents
po ssessory conservators but limited the par e nt s ’ access to the three oldest children to
supe r vised visitations only. And d es pite Mother ’ s arg ument that Foster Father did

not tes tify tha t the fo ster parents wou ld allow access among the six siblings , a

casewo rker did testif

y th at the fo ster parents i ntended to allo w t h e sib lings to see each
other

. On this record, w e conclude that Moth er ’ s and Father ’ s contention that the31

t rial cou rt could not have terminated their parental rights as to the three youngest
chil dren but at the same time appoint them as posse ss o r y conservators as to the three
oldest ch ildren i s without mer it.
6. Conc lus ion Regarding t he Best

- Interest F inding s W e conclude that, viewi ng the evidence in the light most favo ra ble to the tria l

court ’ s best

- i nterest findi ngs , a reasonable fac tfinder cou ld have formed a firm belief
or conviction that termination of Mother ’ s and Fa ther ’ s parenta l righ t s w as in the three youngest children ’ s be st interest. See Tex. Fam. Code Ann. § 161 .001(b)(2); J.P.B. , 180 S.W. 3d at 57 3. W e t hus hold that the evidence is legally sufficient to support the trial court ’ s best

- interest findings. See J.P .B. , 180 S .W.3d a t 5 73. And as to factual sufficiency, based on our review of the en ti re record and giving due
deference t o the t rial court ’ s best

- interest finding s, we co ncl ude that the trial judge reasonably could have formed a firm belief or conviction that te rm ination o f Mother ’ s and Fat her ’ s p arental rights was in the children ’ s best

- i nterest. See Tex. Fam. Code Ann. § 16 1.0 01 (b)(2); C. H. , 89 S.W.3d at 18

– 19. We thus ho ld that the evidence is factually sufficient to support the trial court ’ s best

- interest f in dings. S e e Tex. Fam.
Code Ann. § 161.001(b)(2); C.H. , 89 S.W.3d at 18

– 19. W e overrule Mother ’ s second
issue an d F ath e r ’ s sole is sue .32 IV. C ONCLUSION
H a ving ove r r uled both of Mother ’ s issues and Father ’ s sole issue , we affirm the
trial court ’ s judgment

. /s/ Dana Wo mack
Dana Wo m a ck Just ice
D elivered: August 26, 2021