COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00484-CV

IN THE INTEREST OF C.D.S.-C. 

AND B.L.S.-C., CHILDREN

------------

FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

------------

MEMORANDUM OPINION1

------------

I. Introduction

In two issues, Appellant Mother appeals the termination of her parental 

rights to her children, C.D.S.-C. and B.L.S.-C. We affirm.

 

1See Tex. R. App. P. 47.4.
2

II. Procedural Background

The trial court terminated Mother‘s parental rights to C.D.S.-C. and B.L.S.-

C., twin boys born on August 3, 2011, after finding by clear and convincing 

evidence that she had endangered the children under section 161.001(1)(D) and 

(E), had had her parental rights to other children terminated based on 

subsections (D) or (E), had constructively abandoned the children, and had failed 

to comply with the provisions of a court order that specifically established the 

actions necessary for the return of her children and that termination of her 

parental rights would be in the children‘s best interest. See Tex. Fam. Code Ann. 

§ 161.001(1)(D), (E), (M), (N), (O), (2) (West Supp. 2012). E.S., the children‘s 

alleged father, signed an irrevocable affidavit relinquishing any rights he may 

have had to the children and does not appeal.

III. Best Interest

In her second issue, Mother argues that there is legally and factually 

insufficient evidence to support the trial court‘s best interest finding.

A. Standard of Review

In proceedings to terminate the parent-child relationship brought under 

section 161.001 of the family code, the petitioner must establish one ground 

listed under subsection (1) of the statute and must also prove that termination is 

in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 

2005). Mother concedes that the evidence is sufficient to terminate her parental 
3

rights under subsection (M) because she had previously had her parental rights 

terminated to other children under subsection (D) or (E).

Termination decisions must be supported by clear and convincing 

evidence. Tex. Fam. Code Ann. § 161.001, § 161.206(a) (West 2008). Evidence 

is clear and convincing if it ―will produce in the mind of the trier of fact a firm belief 

or conviction as to the truth of the allegations sought to be established.‖ Id. 

§ 101.007 (West 2008).

Here, in evaluating the evidence for legal sufficiency, we must determine 

whether the evidence is such that a factfinder could reasonably form a firm belief 

or conviction that termination is in the children‘s best interest. In re J.P.B., 180 

S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most 

favorable to the finding and judgment. Id. We resolve any disputed facts in favor 

of the finding if a reasonable factfinder could have done so. Id. We disregard all 

evidence that a reasonable factfinder could have disbelieved. Id. We consider 

undisputed evidence even if it is contrary to the finding. Id. That is, we consider 

evidence favorable to termination if a reasonable factfinder could, and we 

disregard contrary evidence unless a reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance 

and demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573, 

574. And even when credibility issues appear in the appellate record, we defer 

to the factfinder‘s determinations as long as they are not unreasonable. Id. at 

573.
4

In reviewing the evidence for factual sufficiency, we give due deference to 

the factfinder‘s findings and do not supplant the judgment with our own. In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire 

record, a factfinder could reasonably form a firm conviction or belief that the 

termination of the parent-child relationship would be in the children‘s best 

interest. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (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 in the truth 

of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 

108.

B. Evidence

1. Mother’s History, 2004–2011

Besides C.D.S.-C. and B.L.S.-C., twin boys born on August 3, 2011, 

Mother‘s parental rights previously had been terminated to her four other 

children: Mary (born in 2001), Natalie (born in 2002), David (born in 2005), and 

Norene (born in 2010).2

The trial court admitted Mother‘s records from John Peter Smith hospital 

(JPS), which included Mother‘s January 3, 2011 psychological evaluation with Dr. 

 

2We use pseudonyms for Mother‘s other children‘s names, as well as the 

names of any caregivers and family members, to protect the children‘s identities. 

See Tex. R. App. P. 9.8 & cmt.
5

Nichelle Wiggins from the CPS case involving Norene, as well as Mother‘s 

November 5, 2004 psychiatric evaluation from the first CPS case involving her 

older children. The trial court also admitted certified copies of Mother‘s 

judgments of conviction from 2004 to 2009, for offenses that ranged from theft by 

check to drug possession, assault, harassment, and criminal trespass.

Fred W., the alleged biological father of Mary, Mother‘s oldest child, was 

incarcerated for twenty years on drug-related charges. Mother was also involved 

with his brother, Mario L., a drug dealer and the adjudicated father of Natalie and 

David, when she and Richard H., Norene‘s father, would break up. Mother 

identified E.S. as the twins‘ father and told the CPS investigator that E.S. was in 

jail for the next five years.

According to Mother‘s criminal records and what Mother told Dr. Wiggins, 

Mother‘s first CPS case began in November 2004, when she was twenty-one 

years old and involved in a violent domestic relationship with Mario L. Mario L. 

made Mother participate in group sex and gave her sexually transmitted 

diseases; however, although Mario L. was HIV positive, to her knowledge, 

Mother was HIV negative.

Mother said that after an incident with Mario L., she left Mary and Natalie

with her apartment‘s maintenance man‘s wife before leaving for JPS in an 

ambulance. Mother was arrested at JPS after she undressed and ―three dimes‖ 

of crack cocaine, which Mario L. had given her to sell and which she had 
6

forgotten about, fell out of her brassiere. The maintenance man and his wife 

called CPS.3

In Mother‘s November 2004 psychiatric evaluation, Mother described the 

JPS incident, stating that when the drugs were discovered, she became 

psychotic and started yelling, ―Crack kills!‖ When asked in the evaluation about 

her explosive outbursts and frequent physical violence, Mother said, ―I bite my 

baby‘s daddy.‖ Mother also indicated in the evaluation that she did not use birth 

control or practice safe sex, that she might be pregnant, and that she had 

―probably had every sexually-transmitted disease.‖ In the 2011 evaluation, 

Mother told Dr. Wiggins that she had gone to JPS for medication but quit going 

because they thought she had hallucinations; Mother said that she had just not 

been in her right state of mind when she told them everything about her past and 

shouted out things like, ―Crack kills!‖ Mother told Dr. Wiggins that she was too 

ashamed to go back to JPS.

After the JPS incident, CPS put Mary and Natalie in foster care, and 

Mother began participating in CPS services. David was born during this case, 

which closed after Mother successfully completed her CPS services, found a job, 

 

3Mother said that the maintenance man and his wife had lied when they 

told CPS that Mother was going to hurt her children with a hammer. The affidavit 

supporting DFPS‘s original petition as to C.D.S.-C. and B.L.S.-C. contained 

Mother‘s prior CPS history, which included the November 2004 allegation that 

Mother had dropped her children off with strangers and said, ―[Y]ou take my kids 

or I will hit them in the head with a hammer,‖ that Mother was transported to the 

JPS psychiatric ward after this report, and that Mother was subsequently 

arrested for possession of a controlled substance.
7

and started taking her medication. Family Based Safety Services (FBSS) 

monitored Mother when the children were returned to her. Maureen Oderoh, the 

FBSS supervisor on the case in December 2005, said that Mother was calm 

when she was on her medication and that the FBSS case closed because 

Mother was complying with her medication.

Mother had received community supervision in exchange for pleading 

guilty to possession of a controlled substance (cocaine). However, she violated 

her community supervision when she went to Richard H.‘s mother‘s house on 

December 3, 2006, fought with his mother and sister, and was charged with 

assault. Mother‘s children, who were in the car, saw the fight. Additionally, in 

December 2006, FBSS opened a new case after a ―report had been called in 

whereby [Mother] was screaming at the kids, hitting the kids‖; CPS found the 

report ―Reason To Believe.‖ Oderoh testified that although services were offered 

to Mother, ―nothing ever took place because she was arrested soon after that.‖

Mother fought with the bailiff at the revocation hearing. When she 

described the incident to Dr. Wiggins, Mother acknowledged that she had an 

―attitude‖ but said that she had never cursed out the bailiff or the trial judge. 

Mother‘s community supervision was revoked on February 26, 2007, and she 

received six months‘ confinement in state jail as punishment for the possession 

offense. On the same day as her possession conviction, Mother pleaded guilty 

and received 180 days‘ confinement for the December 2006 assault causing 
8

bodily injury offense at Richard H.‘s mother‘s house, as well as the criminal 

trespass and harassment offenses arising from the same incident.

Mother said that she was upset and unstable when released from jail, that 

Richard H. would call the police on her for trespassing, and that she would go to 

jail every weekend because of their arguments. Mother pleaded guilty to 

committing criminal trespass against Richard H. on September 18, 2007; 

November 11, 2007; and December 6, 2007, and terroristic threat against him on 

January 23, 2008. She pleaded guilty to violating his protective order against her 

on February 21, 2008, and March 24, 2008.

Mother‘s medical records included documentation of MHMR services that 

Mother received while in jail. On December 27, 2006, it was noted that Mother 

had been in jail since December 21 and had not showered and other inmates 

had said that Mother talked to herself and got angry when asked to bathe. On 

September 21, 2007, and again on October 24, 2007, it was noted that Mother 

said that the dead talk to her.

Mother never completed her CPS services in the second CPS case, and 

her parental rights were involuntarily terminated to Mary, Natalie, and David on 

March 4, 2008, based on subsections (D), (E), and (N)—that is, both of the 

endangerment grounds and constructive abandonment.

Norene was born on September 2, 2010. CPS removed Norene from 

Mother at birth due to Mother‘s drug use during pregnancy and her mental health 

issues. Norene went into foster care first and then was placed with Mother‘s 
9

aunt-in-law. Mother lost her government-assisted housing because of drug 

possession charges and lived in her car until her aunt-in-law gave her a place to 

stay; Mother told Dr. Wiggins that she could reapply for low income housing in 

2014.

Gladys Demus, Norene‘s CPS caseworker, asked Mother to go to MHMR 

and community addiction treatment services (CATS); to attend parenting classes 

and individual counseling; and to provide a stable home. Demus testified that 

Mother had several issues with CATS, the biggest of which was Mother sending 

text messages from her cell phone during class; Demus stated that Mother‘s 

phone usage was also an issue during Mother‘s visits with Norene.

During her January 3, 2011 psychological evaluation with Dr. Wiggins, 

Mother disclosed to Dr. Wiggins that her car, which had held her driver‘s license, 

social security card, and bank card, had been repossessed on December 15, 

2010; she had only had the vehicle for a month and a half before it was 

repossessed. Mother said that prior to the repossession, her car had been 

totaled in October 2010 when someone ran into her on purpose while she was 

transporting a dialysis patient; she lost her job afterwards.

In her report, Dr. Wiggins found that Mother had chronic mental health 

issues made more pronounced by stress and drug dependency issues, and she 

made the following additional findings:

[Mother] presents as a person who has little insight into her 

motivations and shows little awareness of the consequences to 

others because of her behavior. A prime example of this is that she 
10

was using drugs while pregnant. Sometimes women who use drugs 

want to be caught especially if they don‘t believe they are in a 

position to parent and it takes away that decision for them. 

Sometimes people use drugs when pregnant because they are selfconsumed. Sometimes they continue to use drugs when pregnant 

because of their dependency issues. It could be one or all of these 

things or some other issues why she continued to use but the 

bottom line is that she did not think about the consequences of her 

behavior. [Mother] has lost three other children due to decisions she 

has made and she now has a fourth child and by now if she had truly 

wanted to be in a position to take care of that child she would have 

been more stable and she has not been. One must look at her 

behaviors and decisions and determine whether or not [Mother] has 

sabotaged herself because of the guilt she would have by raising 

one child while the other three are up for adoption. Also [Mother] 

admitted she finds it difficult to parent on her own.

. . . [Mother] can become highly agitated and irritable when 

she is under a lot of stress as she reported she gets into a lot of 

arguments, when someone wrongs her she feels the need to get 

back at them, and she is still angry about things that happened to 

her in the past. [Mother] also described how when she is angry it 

has caused problems with the police and her history well 

documented that.

. . . [Mother] presented as a person who is confused and who 

has acute psychological distress. . . . [Mother] engages in selfdefeating behaviors which may set her up for repeated difficulties. 

She has been involved with CPS several times and she doesn‘t 

seem to profit from her experiences. Compounding her issues is 

that not only are her symptoms acute but they are chronic and 

longstanding in nature. It should be noted the prognosis is poor for 

significant change to occur in a short time frame.

Dr. Wiggins diagnosed Mother with severe bipolar disorder, chronic posttraumatic stress disorder, cannabis dependence, dependent personality disorder,

and borderline personality disorder. She recommended against reuniting Mother 

with Norene and noted that Mother‘s prognosis was poor and that she did not 

have a positive history of stable parenting skills.
11

Mother and Richard H.‘s parental rights to Norene were terminated on 

March 9, 2011, after Mother relinquished her rights to the child. Demus said that 

Mother did not make progress with her mental health issues during that CPS 

case and that she would be concerned if Mother were off of her medications and 

around the children.

In her mental health records, Mother indicated that her last use of 

marijuana had been in 2011 and that she had had a prior dependence on it, as 

well as having used cocaine daily in ―2010/2011.‖ Mother also indicated that she 

had suffered sexual, physical, and emotional abuse during her childhood or 

adolescence, that she had suffered from both hallucinations and delusions, and 

that she had bleached her skin to make it lighter. While in school, she had been 

suspended for fighting and had carried razor blades in her mouth to protect 

herself.

2. C.D.S.-C. and B.L.S.-C.

Mother tested positive for marijuana in May 2011, and the twins were born 

in August 2011. Arlana Stokes, the CPS investigator on C.D.S.-C. and B.L.S.-

C.‘s case, met with Mother at Mother‘s home on August 10, 2011, seven days 
12

after the twins were born.4 Mother tested positive for marijuana when Stokes 

gave her a drug test, but Mother denied that she had been using drugs.

5

When Stokes asked Mother about any potential caregivers who could take 

the twins, Mother told her that she did not have any ―because all her family has 

convictions including drugs and murder charges‖ and would not pass the 

background check. Mother also told Stokes that her mother, whose own criminal 

background included murder and drug possession charges, would not care for 

any children ―unless they are already walking.‖

Stokes said that it was difficult to converse with Mother because Mother 

―would answer with something completely different from what‖ Stokes asked her.

Mother told Stokes that she had been diagnosed with depression in 2010 but had 

not taken any medication since February 2011 and did not feel like she needed 

any. Stokes said that she thought the difficulty in communicating with Mother 

stemmed from Mother‘s mental health issues.

Christina Sanford, the CPS caseworker, testified that she received the 

case in early September 2011, and upon reviewing Mother‘s previous CPS 

history, became concerned about Mother‘s mental health and drug use. Mother‘s 

service plan required Mother to contact Sanford once a week to give progress 

 

4

The twins were born at thirty-four weeks and remained at the hospital for 

monitoring before being placed with a foster family.

5At trial, Mother admitted that she had used marijuana while pregnant with 

C.D.S.-C. and B.L.S.-C. but said that she had not used marijuana since the twins 

were born.
13

updates; to contact MHMR for an assessment and follow all recommendations 

from the assessment; to attend all court hearings and other meetings with CPS; 

to comply with all court orders and the CPS case plan; to maintain safe, clean, 

and drug-free housing; to attend supervised visits with the children; to participate 

in random drug testing; to participate in individual counseling and parenting 

classes; and to contact CATS for a drug assessment and follow all 

recommendations from the assessment. Sanford said that Mother signed her 

service plan on September 15, 2011, and completed her parenting classes in 

November 2011.

Sanford testified that in October 2011, Mother started engaging in 

outpatient drug treatment for marijuana through CATS and individual counseling 

with Christopher Hooker, a licensed professional counselor, but that Mother was 

inconsistent in attending both services.

Mother‘s CATS records indicate that she was admitted into the program on 

September 13, 2011, to complete twenty-eight group sessions and four individual 

sessions; she was discharged on January 4, 2012. Laurie Smith, the Tarrant 

County MHMR CATS program manager, testified that on December 8, 2011, 

there was a group meeting with Mother and Sanford to discuss problems with 

working with Mother.

Smith had had Mother in group sessions and stated,

Her behavior throughout treatment was very unpredictable. As I 

began to watch and listen, it was pretty bizarre, and at times, almost 

every time, unpredictable. She would bring her MP3 player and 
14

have it on during group. She would be asked to remove it. She 

would be using her phone during group. One day she might wear a 

big hat and wear it down over her face in group. There were days 

she came in with her hair over her eyes, held down the whole group. 

There was one day that she came with a false eyelash on that was 

rather large, but she only had one, so pretty typical, demonstrating a 

lot of mental health issues and problems going on with her 

treatment.

Mother became upset when staff took away her phone during class and asked 

her to leave because of the disruption.

With regard to Mother‘s treatment, Smith said that she thought Mother 

needed both drug treatment and treatment for her mental health issues, stating:

She had a psychiatric evaluation and it was referred to in her notes 

January 11th, and it indicated that she had some mental health 

diagnoses, some substance diagnoses, and some personality 

disorders as well, and any time we addressed medication or any of 

the opposition that we dealt with in group, we got a lot of kick-back. 

At times, she would just be shut down emotionally. Other times, she 

would come loud, cursing at my staff, cussing at me. She doesn‘t 

like to be called on her behaviors and she‘s difficult to work with in a 

group setting. She can become very disruptive.

Smith also stated that some of Mother‘s comments about hallucinations and 

personal hygiene concerned her and the CATS staff, specifically, that Mother had 

stated in an individual session that she had a dead uncle who was visiting her, 

and that she had stated in a group session that she washed her ―private area‖ 

with Comet bleach.

Mother told Sanford that she did not feel that she needed to be in drug 

classes. After the December 8 meeting, Mother voluntarily went with Sanford to 

JPS for a psychiatric evaluation. Sanford said that Mother was diagnosed at JPS 
15

with psychosis and post-traumatic stress disorder and received a 

recommendation that she take psychiatric medication but that Mother was not 

amenable to taking the medication.

Smith said that throughout the case, Mother did not want to take mental 

health medications. Smith was also concerned that, if CPS returned the twin 

babies to Mother, Mother would not be able to cope with the challenge of caring 

for two infants. Smith said that Mother had completed her CATS sessions but 

had not completed them successfully and that she still had concerns about 

Mother‘s issues.6The comments section of Mother‘s CATS discharge 

information states, ―Client discharged with acknowledgment of completing group 

sessions recommended but without a certificate of completion indicating that she 

had not participated in the group process and was only interested in  ̳doing the 

time.‘‖

Hooker testified that he first saw Mother on October 7, 2011, for a 

psychosocial assessment for counseling services. Hooker said that at the 

beginning of their first meeting, Mother was agitated and did not want to 

 

6Smith testified that around 90% of her clientele have both mental health 

and substance abuse disorders and use drugs to self-medicate their mental 

health issues, which may have been created by drug use or pre-existing mental 

health disorders. Smith agreed that it was very typical for people with both 

mental health and substance abuse issues to work in a cycle, in which they 

would stay on medications for a while, then stop taking them and use illicit 

substances to self-medicate, and then start taking the medications again.
16

participate in services but that by the end of the assessment, she said she would 

be willing to participate in individual counseling.

Mother told Hooker that she had not previously received a mental health 

diagnosis; she admitted to using marijuana during her pregnancy with C.D.S.-C. 

and B.L.S.-C. and to having a pending possession of a controlled substance 

charge. At the assessment‘s conclusion, Hooker recommended individual 

counseling and a continuation of CATS. He also recommended a psychological 

assessment and an assessment for possible medication management. Mother 

began counseling with Hooker after the assessment, which continued into 

November and, with more inconsistent attendance by Mother, December, 

January, and February.

Hooker testified that Mother had difficulty staying focused during 

counseling and ―would often go on . . . rants where she would be talking more to 

herself than to actually being engaged with [him] as the counselor‖; he found it 

difficult to redirect Mother back to ―something that could be therapeutically 

productive.‖ In response to Hooker‘s talking with Mother about the importance of 

being on medication for her mental health issues, Mother would tell him that she 

did not feel like she needed to be on medication and that she felt it was not 

necessary for her mental state.

Mother‘s last session with Hooker was February 11, 2012. Hooker said 

that as of his last session with Mother, she continued to be agitated and to have 

difficulty staying focused—―much of the same behaviors [that he] had observed 
17

prior in the treatment.‖ Based on the counseling he had provided to Mother from 

November 2011 to February 2012, Hooker continued to have concerns about 

Mother‘s ability to parent her children and the children‘s safety in her home 

―because of the agitation and because of the difficulties staying focused in 

session and due to mood swings and the fact we had not really achieved 

anything productive over the course of treatment.‖ He also noted that Mother‘s 

drug history was a concern and that based on what he had observed in February 

2012, he did not think that it would be in the children‘s best interest for Mother to 

be a parent.

At the permanency review hearing that Mother attended on February 9, 

2012, DFPS made plans to have a family group conference to identify a family 

member or friend for a home study for the children. Eight days later, on February 

17, 2012, Mother called Sanford, told her that she had moved to Atlanta, and 

asked whether the case could be transferred to Georgia. Sanford said that 

Mother had not mentioned moving to Georgia at the February 9 hearing. Sanford 

discussed with Mother her concerns about Mother‘s ability to see the children

while living out-of-state, and Mother attended the family group conference in 

person on February 24, 2011.

Sanford set up services for Mother in Georgia through DeKalb County. 

The DeKalb County caseworker visited Mother‘s home in April to make sure that 

it was stable, recommended counseling, and recommended a Community 

Support Individual (CSI worker), which Sanford said was like an MHMR worker 
18

assigned ―to manage medication, attend appointments, counseling, and things 

like that.‖ However, Mother was unable to engage in services in Georgia from 

February 2012 to May 2012 because she had to transfer her Medicaid to 

Georgia. Sanford said that she explained to Mother how important it was to get 

the Medicaid transferred and to show stability over time.

Sanford testified that Mother did not visit the twins at all from February 

2012 to May 2012, while Mother testified that she did not recall failing to visit the 

twins during that time and said that she recalled seeing her children every month 

except for September. Lisa G., the children‘s foster mother, said that a CPS 

caseworker would retrieve the twins for Mother‘s visits and that she did not recall 

more than one retrieval in February and none in March, April, or May 2012.

Sanford recounted her May 9, 2012 conversation with Mother, stating,

[Mother] went on about 10 or 15 minutes about her previous case 

not being documented properly. She didn‘t appreciate the fact that 

Texas CPS was out to get her. She didn‘t feel that her case was 

moving fast enough. She‘s refusing to take medications and does 

not have—and she does not believe she has any mental health 

issues. She wanted to hire her own attorney. She didn‘t want a 

CPS- or court-appointed attorney. She wanted to hire Johnny 

Cochran. . . . She talked about someone being arrested in her 

family saying that they gave up on her kids, and then she went on to 

talk about how she was thankful that her grandmother physically 

disciplined her.

Sanford said that Mother confirmed that she was still not taking the medication 

that had been recommended after her 2011 psychological evaluation.

On June 14, 2012, DFPS filed a motion for court-ordered services, 

complaining that Mother had failed to comply with her service plan despite 
19

numerous requests and asking the court to order Mother to comply with her 

service plan. Mother moved for an extension of the case because she had 

moved to Georgia and wanted additional time to do her services there. The trial 

court granted both motions.

The trial court signed the parties‘ agreed order, in which it, among other 

things, ordered Mother to file written documentation of her residence in Georgia 

within two weeks of the order and to allow the Georgia caseworker access to her

home to make sure that it was safe, clean, and drug-free; to comply with any 

random drug testing required by DFPS; to sign a HIPAA release of information to 

provide the CPS caseworker with approval to speak with her service providers 

and doctors; to contact Metro Change Center to have the Texas Medicaid 

changed to Georgia Medicaid; to maintain weekly contact with her Tarrant 

County CPS caseworker; to take her medication for psychosis, post-traumatic 

stress disorder, and post-stress disorder; to actively participate in individual 

counseling; and to make arrangements to travel to Texas twice a month for twohour supervised visits with her children.

Mother never filed anything in the trial court to comply with the order

regarding housing, but she told Sanford that she was living with Richard H. in 

Atlanta; the Atlanta caseworker verified to Sanford that Mother‘s home was clean 

and appropriate. Sanford said that CPS was unable to obtain drug tests while 

Mother was in Georgia because Sanford was unable to determine where to send 

Mother for the drug tests.
20

Mother visited the twins in June 2012 when they were ten months old and 

gave Sanford a list of the prescription medications that she was taking. Mother 

visited the twins twice in July and once in August 2012. She did not visit them at 

all in September 2012, when she started engaging in individual counseling 

services in Georgia and working with the CSI worker. Mother had one visit with 

the children in October 2012 but left an hour early.

Sanford said that the last time she had observed a visit between Mother 

and the children was in August, but that Mother acted appropriately with them at 

that visit, as she had at the visits Sanford had observed in June and July. Mother 

called Sanford at least once a week and at the time of the trial was still attending 

counseling.

Sanford said that neither the Georgia CSI worker nor the Georgia 

counselor could recommend reunification at this time ―[b]ecause [Mother] had 

only been working with them at this time for now four weeks.‖

7

 Sanford said that 

she did not feel at this point that it would be safe to return the twins to Mother 

because there had not been enough progress to determine her stability. Sanford 

also expressed concern that Mother was living with Richard H., who was 

Norene‘s father, based on Mother‘s past domestic violence issues with him, 

 

7During cross-examination, Sanford stated that if Mother were given more 

time, a recommendation by Mother‘s counselors would determine whether 

Mother would be able to care for the boys.
21

although Mother told Sanford that she did not have any fights with Richard H. but 

instead had had them with Richard H.‘s mother.

Sanford stated that she did not think that Mother had done enough to get 

the children back, although Mother could have finished the service plan and 

gotten her children back if she had started when she first received the plan; that 

she did not feel like Mother‘s mental health issues had been resolved; and that 

Mother would need more time to be successful with her medication, counseling,

and staying out of trouble because she had never been able to show a history of 

being compliant with her medication over the years of CPS cases. Sanford said 

that her conversations with the Georgia service providers had confirmed her 

concerns about Mother‘s continued mental health problems, that she was asking 

the court to terminate Mother‘s parental rights to the twins because of that 

concern as well as ―the lack of progress with the services that were offered,‖ and 

that termination of Mother‘s rights would be in the twins‘ best interest. Sanford 

said that the twins had been placed in the same foster home for the case‘s 

duration and that the foster family wanted to adopt them.

Mother said that her mental health diagnosis was stress, anxiety, and 

depression; that she was currently taking Klonopin, Topamax, and Wellbutrin;

that she was living in Decatur, Georgia, with Richard H.; and that Richard H.‘s 

name was on the lease because she ―didn‘t want to have any complications with 

[her] background,‖ specifically, her criminal record.
22

Mother said that she had been taking her medications on a regular basis, 

that she had maintained regular contact with her CPS caseworker since she had 

been in Georgia, and that her home in Georgia with Richard H. was safe, clean, 

and drug-free.8 Mother said that her CSI worker visited her house twice a week 

and that she saw her counselor once a week, that she loved the twins, and that 

she thought it was in their best interest to be returned to her.

Lisa G. testified that she was the twins‘ foster mother and that they had 

lived with her since August 2011; C.D.S.-C. was twelve days old when he came 

to live with her, and B.L.S.-C. was seventeen days old when he joined C.D.S.-C. 

at her house.9 C.D.S.-C. had had a head size issue initially in that when he was 

around six months old, his skull had grown faster than his brain so that if he 

jerked his head, he could start bleeding.10 However, the issue had resolved itself 

by the time of the trial, when both children were developmentally on-target.

Lisa G. said that she was a stay-at-home mother and that the twins lived in 

the home with her, her husband, and their adopted eighteen-month-old son and 

that child‘s six-month-old brother. They had a playroom set up for the four boys,

 

8Mother said that she had never had any domestic violence incidents with 

Richard H., but that there had been with Natalie and David‘s father.

9

Lisa G. testified that B.L.S.-C. stayed at the hospital longer than C.D.S.-C. 

―because he was the smaller of the two and he just was not gaining weight like 

they wanted him to be.‖

10Lisa G. testified that Mother was not present at any of the children‘s 

doctor‘s visits but that she did not know if Mother had ever been notified about 

the doctor‘s visits.
23

and Lisa G. stayed with them all day. They would sit down as a family for dinner 

when her husband came home from work. She said that their home was stable 

and, when asked if she anticipated any problems caring for the twins financially, 

answered ―No.‖ Lisa G. testified that she loved the twins, that the twins were 

bonded with the other children in the home, that her extended family and her 

husband‘s extended family were involved with the children, and that if the trial 

court terminated Mother‘s parental rights to the twins, she wanted to adopt them.

In his report to the trial court, the children‘s ad litem attorney stated that he 

had visited Lisa G.‘s home on November 12, 2012, that it was neat and clean,

and that the twins appeared to be well-adjusted. He also emphasized that he did 

―NOT want the children returned to their biological mother. She has drug 

problems, mental health issues[,] and a significant criminal record.‖

C. Analysis

Mother points out that the testimony at trial reflected that she was 

appropriate and bonded with the children at their visits, that the children were 

happy and healthy, and that nothing indicated that she would be unable to care 

for their emotional and physical needs, particularly when DFPS ―never drug 

tested [her] to verify her compliance or lack thereof with sobriety and [she] was 

actively engaged with her counselor and her mental health medications.‖ Mother 

also claims that DFPS never indicated during trial why the children had been 

removed from her and how she presented a current or future danger to the 

children when she had ―substantially completed her service plan and was actively 
24

engaged with an ongoing Georgia caseworker to assist and monitor her 

continued progress.‖ Mother asserts that while she was slow at the beginning to 

engage in and complete her services in Texas, she performed many services 

while in Georgia and had engaged in counseling and completed her parenting 

classes; Mother also points out that she has social security insurance (SSI)

income available to help her support the children,11 that she has the CSI worker 

available to aid her as needed, and that Georgia‘s CPS caseworker equivalent 

found her home to be appropriate. She blames her mental health problems on

her prior drug use.

1. Best Interest Factors

There is a strong presumption that keeping a child with a parent is in the 

child‘s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and 

permanent placement of the child in a safe environment is also presumed to be 

in the child‘s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008). The 

following factors should be considered in evaluating the parent‘s willingness and 

ability to provide the child with a safe environment:

(1) the child‘s age and physical and mental vulnerabilities;

(2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to 

the child;

 

11Per Mother‘s disclosures in her mental health records, Mother collected 

SSI benefits for her anxiety and depression.
25

(4) whether the child has been the victim of repeated harm after 

the initial report and intervention by the department or other 

agency;

(5) whether the child is fearful of living in or returning to the child‘s 

home;

(6) the results of psychiatric, psychological, or developmental 

evaluations of the child, the child‘s parents, other family 

members, or others who have access to the child‘s home;

(7) whether there is a history of abusive or assaultive conduct by 

the child‘s family or others who have access to the child‘s 

home;

(8) whether there is a history of substance abuse by the child‘s 

family or others who have access to the child‘s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) the willingness and ability of the child‘s family to seek out, 

accept, and complete counseling services and to cooperate 

with and facilitate an appropriate agency‘s close supervision;

(11) the willingness and ability of the child‘s family to effect positive 

environmental and personal changes within a reasonable 

period of time;

(12) whether the child‘s family demonstrates adequate parenting 

skills, including providing the child and other children under 

the family‘s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent 

with the child‘s physical and psychological development;

(C) guidance and supervision consistent with the child‘s 

safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even 

though the violence may not be directed at the child; 

and
26

(F) an understanding of the child‘s needs and capabilities; 

and

(13) whether an adequate social support system consisting of an 

extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

Other, nonexclusive factors that the trier of fact in a termination case may 

use in determining the best interest of the child 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 which 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.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

These factors are not exhaustive; some listed factors may be inapplicable 

to some cases. C.H., 89 S.W.3d at 27. 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 child. Id. On the other hand, the 
27

presence of scant evidence relevant to each factor will not support such a 

finding. Id.

2. Application

The record reflects that C.D.S.-C. and B.L.S.-C. were born in August 2011,

less than a year after their half-sister Norene was born and less than half a year 

after Mother relinquished her parental rights to Norene. By the time the 

termination trial began on November 13, 2012, the twins had never lived with 

Mother, who admitted that she had used drugs while pregnant with them, and 

they had only rarely seen her. See Tex. Fam. Code Ann. § 263.307(b). Mother 

had already established a seven-year history of not taking her medication, then 

self-medicating, and then having her children removed by CPS and her parental 

rights terminated. See id. She had been on the giving and receiving end of 

domestic violence involving some of the fathers of her children and, until only two 

months before trial, had taken a long hiatus from working on the services needed 

to ensure the twins‘ safe return to her, after her lackluster participation before she 

abruptly moved to Georgia. See id. Most of Mother‘s family, with a background 

of drug use and criminal activity, could not provide an adequate social support 

system for the twins. See id. Therefore, we conclude that the trial court could 

have reasonably formed a firm belief or conviction that termination of Mother‘s 

parental rights to the twins would be in the children‘s best interest. See J.P.B., 

180 S.W.3d at 573.
28

Further, although the twins were too young to express their desires, they 

had lived with their foster family in a stable home since leaving the hospital and 

were cared for by two parents and the parents‘ extended families. Mother did not 

testify about how she would take care of two infants. The trial court could have 

chosen to believe Sanford‘s testimony that Mother did not visit the children for 

several months after she moved to Georgia, disregarding the children‘s 

emotional needs, and to disbelieve Mother‘s testimony that she remembered 

visiting the children during that time. See H.R.M., 209 S.W.3d at 108; see also In 

re K.S., No. 02-09-00331-CV, 2010 WL 2432012, at *8 (Tex. App.—Fort Worth 

June 17, 2010, no pet.) (mem. op.) (concluding that evidence supporting best 

interest was legally and factually sufficient when for the duration of the CPS 

case, Mother had been unwilling to cooperate with CPS and undertake services 

that would return the child to her even though she had already been through the 

process twice before when she lost her rights to two other children, and she 

dropped out of contact with CPS and the child‘s life for around six months, failed 

to complete her service plan after receiving two continuances so that she could 

do so, and had a significant substance abuse history).

Further, Lisa G. testified that she wanted to adopt the twins and, in 

contrast to Mother‘s history, presented a stable, healthy alternative for the two 

infants, while Mother‘s decision to live in Georgia with Richard H., a frequent 

complainant in Mother‘s criminal history, could have allowed the trial court to 

reasonably conclude that despite the Georgia caseworker‘s positive report on
29

Mother‘s home inspection, Mother still did not have a stable living environment

for the twins. See H.R.M., 209 S.W.3d at 108; see also Holley, 544 S.W.2d at 

371–72 (noting that a best interest factor includes the stability of the proposed 

placement). And the trial court could have found that Mother‘s refusal throughout

all of her CPS cases to acknowledge her mental health problems and to 

consistently take her medication and remain stable for any of her children would 

expose the infant twins to emotional and physical danger in the future if the 

children were returned to her. In light of the entire record, the trial court could 

have reasonably formed a firm belief or conviction that termination of Mother‘s 

parental rights would be in the children‘s best interest, despite evidence of some 

of Mother‘s recent behavioral changes before trial. See H.R.M., 209 S.W.3d at 

108; see also In re S.L.-E.A., No. 02-12-00482-CV, 2013 WL 1149512, at *9 

(Tex. App.—Fort Worth Mar. 21, 2013, no pet. h.) (mem. op.) (noting that 

although parent had made positive improvements in his life by renting a home, 

gathering the necessary items for a young child, staying off of drugs, and not 

committing any new crimes while the case was pending, ―evidence of improved 

conduct, especially of short duration, does not conclusively negate the probative 

value of a long history of criminal conduct and irresponsible choices‖). 

Therefore, we overrule Mother‘s second issue.

IV. Motion for Continuance

In her first issue, Mother complains that the trial court abused its discretion 

by denying her motion for continuance.
30

We review the denial of a motion for continuance in a termination of 

parental rights case for an abuse of discretion. See In re E.L.T., 93 S.W.3d 372, 

374 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A trial court abuses its 

discretion if the court acts without reference to any guiding rules or principles, 

that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). 

Under rule of civil procedure 251, no 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. If a motion for continuance is not made in 

writing and verified, it will be presumed that the trial court did not abuse its 

discretion by denying the motion. See E.L.T., 93 S.W.3d at 375 (holding that 

because appellant in termination of parental rights case did not comply with rule

251, the trial court did not abuse its discretion by denying her motion for 

continuance); see also In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at 

*8–9 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (citing E.L.T., 93 

S.W.3d at 375, and reaching same conclusion). Further, to obtain reversal of a 

judgment based on an error in the trial court, the appellant must show both that 

the error occurred and that it probably caused the rendition of an improper 

judgment or probably prevented the appellant from properly presenting the case 

to this court. See Tex. R. App. P. 44.1(a); In re Baby Boy R., 191 S.W.3d 916, 

922–23 (Tex. App.—Dallas 2006, pet. denied) (holding that even if the trial court 

had abused its discretion by denying the continuance, parent in termination case 
31

failed to show how this probably caused the rendition of an improper judgment), 

cert. denied, 549 U.S. 1080 (2006).

Here, Mother made an oral motion for continuance before the termination 

trial began, seeking ―some more time to complete her services which are 

currently in progress.‖12 The trial court denied the oral motion after DFPS 

pointed out that the trial court had already denied Mother‘s earlier request for a 

continuance, noting, ―[M]y file indicates that we‘ve already extended this 

cause.‖

13

The record reflects that DFPS filed its original petition in this case on 

August 11, 2011, and that the trial judge considered whether she could grant the 

 

12On appeal, Mother contends that she reurged the written motion that she 

had filed on October 30, 2012. However, while at trial Mother had complained 

that she needed more time to complete her services, her previous motion states,

Respondent asserts that she has diligently continued to work on her 

service plan with the case worker and counselor and has completed 

all other services on her service plan. Respondent requests 

additional time to demonstrate compliance on her medication and 

work toward meeting all requirements and prerequisites prescribed 

by this Court. [Emphasis added.]

The motion was verified by Mother‘s attorney, not by Mother. See Humphreys v. 

Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding) (―An affidavit which 

does not positively and unqualifiedly represent the facts as disclosed in the 

affidavit to be true and within the affiant‘s personal knowledge is legally 

insufficient.‖).

13The trial court also denied Mother‘s oral motion to have an associate 

judge hear the case in order to give her more time to complete her counseling, 

after DFPS pointed out that it had relied on the trial court‘s denial of Mother‘s 

motion for continuance the preceding week and that its witnesses were present 

and ready to proceed with the trial.
32

continuance but noted that the case would be dismissed by law on February 9, 

2013. The trial judge stated, ―I believe at the last hearing, I really looked closely 

at the calendar to see if we could reset it with adequate time for the drop-dead 

dismissal date, and I felt like there was no way we could and the Court denied 

that request.‖ On June 14, 2012, the trial court had granted Mother‘s motion for 

extension of dismissal date and for a continuance on the same day that it had 

signed an agreed order for the actions necessary for Mother to obtain the 

children‘s return.

Mother made an oral motion for continuance, the case had already been 

extended, and, contrary to Mother‘s argument on appeal,14 the trial‘s probable 

outcome would not have been different based on our analysis of the evidence 

above, particularly in light of Mother‘s numerous opportunities to learn from 

CPS‘s services and to change her lifestyle for any of her children. See E.L.T., 93 

S.W.3d at 375; see also T.H., 2008 WL 4831374, at *9; Baby Boy R., 191 

S.W.3d at 922–23; see also In re K.P., No. 02-09-00028-CV, 2009 WL 2462564, 

at *4 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (mem. op.) (noting that the 

court has ―repeatedly held‖ that when a parent, through his or her own choices, 

fails to comply with a service plan and then requests a continuance in order to 

 

14Mother claims that had the continuance been granted, ―seemingly, 

Appellant would have successfully completed her service plan, demonstrate[d] 

compliance with her medication and would have had testimony from her Georgia 

caseworkers supporting return of her children.‖
33

complete the plan, the trial court does not abuse its discretion by denying the 

continuance). Therefore, we overrule Mother‘s first issue.

V. Conclusion

Having overruled both of Mother‘s issues, we affirm the trial court‘s 

judgment.

PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: May 2, 2013