COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-014-CV
IN THE INTEREST OF M.M.F., J.J.F.,
AND E.F.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Michael F. appeals the trial court’s judgment terminating his
parental rights to his three children—Matt, John, and Eric. 2 In ten points,
Michael argues that the evidence is factually insufficient to support the trial
court’s endangering environment and endangering conduct findings, that the
evidence is factually insufficient to support the trial court’s best interest finding,
1
… See Tex. R. App. P. 47.4.
2
… Pursuant to Texas Rule of Appellate Procedure 9.8(b)(2), we use
aliases for the names of the children.
that the trial court abused its discretion by denying his motion for continuance,
that the trial court committed reversible error when it admitted photographs
without proper predicate, and that section 263.405 of the Texas Family Code
violates the Due Process Clause, the Equal Protection Clause, and the
separation of powers doctrine. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Melisa and Michael are the biological parents of Matt, John, and Eric. At
the time of trial, Matt was four, Molly was three,3 John was two, and Eric was
one and a half. Because Melisa did not perfect an appeal from the judgment
terminating her parental rights, we limit our discussion of the facts to those that
are pertinent to Michael’s appeal of the termination of his parental rights.
A. Previous CPS History
On July 9, 2003, CPS received a referral alleging physical neglect and
physical abuse of Matt by Melisa because she was bipolar and was not taking
her medication. CPS gave the case a disposition of “reason to believe” and
instituted a safety plan, which Michael signed, stating that Melisa would have
no unsupervised contact with the child.
3
… Molly’s father was Kevin H., and he signed an affidavit relinquishing
his parental rights to Molly. Molly is not Michael’s biological child, so he is not
asserting any rights to her. However, because she was in the home, we
include her information when it is relevant.
2
The next referral came in on December 24, 2003, and involved allegations
of physical neglect and medical neglect. Michael and Matt were staying at the
Salvation Army, and Michael was not cooperative with the program; he
appeared volatile and unstable. Matt had an open lesion on his left ankle; hard,
cracked skin over his body; and a distended abdomen. CPS ruled out that case.
On May 23, 2005, a referral came in for physical neglect and neglectful
supervision of Matt and John by Melisa. The referral came in after Melisa gave
birth to John because there was a concern regarding her ability to properly care
for him due to her diagnosis of bipolar disorder and her inclination not to take
her medication. CPS ruled out that case but left it open for services to be
provided through Catholic Charities.
On February 6, 2006, a referral came in for physical neglect of Matt,
Molly, and John by Michael and Melisa. The allegations included a dirty
kitchen, dirty clothes throughout the home, and John was yellow and had his
hands bound with a piece of rag, possibly to keep him from scratching his skin.
All three children were seen at Cook Children’s Medical Center. Molly and Matt
had no problems. John, however, had a skin condition, and his weight was just
below the fifth percentile. All three children were sent home with Michael and
Melisa, along with a safety plan. CPS ruled the case reason to believe for
medical neglect and ruled out the allegations of physical neglect.
3
Even though a case was opened in May 2006 for family based safety
services, the Department went a number of months without seeing the children
because Michael, Melisa, or both would not allow anyone from the Department
to see any of the children. Because Michael and Melisa were not cooperative
with CPS and would not allow family, friends, 4 or professionals to enter their
home to see their children, the court signed an order providing services for the
family on January 30, 2007.
B. The February 1, 2007 Psych Call
Two days later, Shawn Burton, a paramedic with MedStar, received a
psych call.5 He responded to the call and found Melisa 6 in the kitchen working
on family scrapbooks. He noticed a child, Eric, in a car seat or carrier on the
kitchen counter and three children in the living room. When Burton and another
paramedic removed the layers of blankets that were on Eric, they saw that he
4
… During the course of CPS’s investigation, Melisa’s mom said that
Michael would not allow her to see Eric, and two people who were interviewed
who were close to Michael and Melisa admitted that they had not been
permitted to see Eric. The person who reported the family to CPS said that Eric
was kept hidden in the bedroom.
5
… A neighbor had initiated the call after attempting to check on the
children and being turned away by Melisa.
6
… Although this person is referred to at various points in the record as
“Maria,” the evidence indicates that this is a mistake and that the correct name
is Melisa.
4
was severely malnourished, that he had almost no musculature, that he was
very dehydrated, that his eyes were sunken in, that he was covered in eczema,
and that his arms had been wrapped behind his back.
The paramedics questioned Melisa about why Eric’s arms were secured
behind his back, and she said that it was to keep him from scratching. She also
told them that Eric had eaten five times that day, and then she took an almost-
empty box of dry cereal out of the refrigerator to make her point. However,
they did not find anything that would confirm that Eric had eaten during the
day, and Melisa was unable to show them any bottles anywhere in the house.
They found no food in the cabinets and little to no food in the refrigerator.
Burton checked on the three other children, who were all under the age of four,
and noted that they were well fed and were playing in the living room.
They explained to Melisa the seriousness of Eric’s condition and that they
were going to take him to the hospital. They also notified the police to come
interview Melisa. Melisa was not cooperative and did not want them to take
Eric. She told them that she did not think it was a good idea and that she
wanted her husband to make the decision. So they called Michael and
explained that they needed to take Eric to the hospital. He, too, was not
cooperative at first and told them that he would take Eric to the doctor the next
5
day. They explained that due to the seriousness of Eric’s condition, they “were
going to have to take him anyways.” Michael finally agreed.
Burton’s partner took Eric to the ambulance and began working on him
while they waited for the police to arrive and look after the children because
Melisa was agitated and not alert to what was going on. The neighbors told
him that Melisa does not take her medicine. When he asked Melisa whether
she had taken her medicine, she would not answer.
C. Eric’s Hospitalization
Dr. Jayme Coffman, who was qualified as an expert on child abuse
because she is a pediatrician and medical director of the Care Team (the child
abuse program at Cook Children’s Medical Center), testified that she came into
contact with Eric on February 2, 2007, when she was asked to consult on his
case. Eric had been admitted to the pediatric intensive care unit the day before
and was severely malnourished.
Dr. Coffman testified that Eric, who was seven and a half months old,
weighed 3.8 kilograms or a little over 8 pounds; had no body fat; had a sodium
level of 115, which is incompatible with life; and had “severe, severe eczema.”
Eric was “way off the growth charts, not only on weight, but on length and
head size as well” and had been starved long enough for it to affect his length
and brain growth. Dr. Coffman testified that this was not an overnight process
6
that caused Eric’s body to quit growing and his brain to atrophy. She further
testified that Eric did not have a preexisting medical condition that caused this,
that his condition was the result of someone not feeding him, and that his
condition was obvious enough that it could be observed with the naked eye.
Dr. Coffman said that Eric presented with “the worst case of malnourishment
that [she had] seen that survived” and determined that his condition was abuse
due to severe malnutrition and starvation.
Dr. Coffman said that Eric was in the hospital a couple of weeks because
“when they’re that malnourished, it’s difficult to refeed them. Their gut is not
used to the food, and so it’s difficult to get them to eat again, basically, and to
absorb the nutrition.” So they reintroduced food slowly and diluted it so that
his intestines could learn to deal with normal nutrition.
Dr. Coffman testified that at the time of trial, Eric was a typical kid who
may have some special educational needs. Her main concern for Eric, based on
his brain atrophy, is future learning difficulties or developmental delays. She
said that he will need lots of developmental assistance through early childhood
and Head Start, but even with that, she was not sure that he could reach the
potential that he would have had if he had not been starved. He does not
require special living circumstances, only someone who will keep up with
7
appointments and be aggressive in following through to make sure that Eric
gets his educational needs met.
Dr. Coffman looked at previous emergency room visits during which one
of Eric’s older siblings—John—was diagnosed as “failure to thrive
[malnourished] with eczema” and noted that Eric’s medical records stated that
Eric’s mother and father were his primary caregivers. Dr. Coffman therefore felt
that it was appropriate that CPS remove the children. Dr. Coffman said that
she would have concerns if Eric was returned to the caregivers who had
allowed him to get into the state he was in.
D. The Department’s Investigation
Stephanie Nick, formerly an investigator with the Department, testified
that on February 1, 2007, the Department received a referral that alleged
medical neglect and physical neglect of Eric by both of his parents. She met
with law enforcement and went to the residence, where she met Melisa and her
three older children. When Nick arrived at the home, she noticed signs of
violence, including that the screen on the front porch had been smashed, that
the living room had a broken window, and that there were holes in the walls
throughout the home, but Melisa would not permit her to take any photographs.
8
Melisa told Nick that she fed Eric several times a day, that she breastfed
him, that he ate Enfamil with iron, and that he also ate baby cereal and jars of
baby food. Melisa showed Nick the box of Beachnut baby cereal, a couple of
containers of baby food, and an unopened, three-pack of bottles.
Nick also observed the older children while she was at the home and
noted that Matt and John exhibited developmental delays. John was in the
corner and not playing with the others, and Matt was three and a half and was
not potty-trained and said only the word “car.” Nick removed the children from
the home later that day because Eric, who was seven and a half months old
and weighed only eight and a half pounds, had been transported to the hospital.
This indicated to Nick that Eric was not being fed appropriately, so she ruled
the case as reason to believe for neglectful supervision of Eric, John, Molly, and
Matt by both parents and reason to believe for physical neglect and medical
neglect of Eric by both parents.
Nick went to the hospital on February 2 to see Eric. At that time, his dry,
flaky skin was hanging from his bones. 7 She held him during his diaper
changes, and she could see the lymph nodes in his groin. He appeared to be
very uncomfortable.
7
… The record included photographs from February 1, 2007, showing
Eric’s malnourished state.
9
Nick interviewed Michael on February 2, and he said that Melisa has a
mental condition and a history of not taking her medications. He said that her
medicines were kept in the cabinet and that he “kind of forgot about them.”
He said that Melisa was responsible for the children during the day while he
worked and that he provides care to Eric after he returns home from work in the
evenings, during the night, and on the weekends. Michael said that he would
feed Eric several times during the evening hours and that he was eating up to
eight ounces at a time.8 Nick asked both Michael and Melisa about how Eric
got into the condition he was found in, and both were adamant that they had
been feeding him on a regular basis.
Michael told Nick that he wanted a home study performed on Melisa’s
parents. When Nick met with Melisa’s dad, he told Nick that he suspected
domestic violence between Melisa and Michael and that an altercation had
occurred between Michael and Melisa’s mom. Nick also learned during the
interview with Melisa’s dad that he had been in the home approximately twice
a week to pick up Molly. Melisa’s dad said that when he had seen Eric the last
weekend in January, he was covered in blankets, but his face was thin.
Melisa’s dad told Nick that he had seen both Michael and Melisa feed Eric cereal
8
… The medical records also stated that Michael reported that he fed Eric
the previous night and that he took the whole bottle.
10
and baby food. However, it concerned Nick that Melisa’s dad knew of his
daughter’s mental health issues and her propensity to not take her medicine,
that he was in the home on a regular basis, and that he did not report Eric’s
looking thin.
During Nick’s investigation, she discovered that this family had an
extensive history with CPS. She requested a criminal history, and what she
learned about Michael factored into the reasons for the removal of the children. 9
Nick felt that removal of the children was appropriate because the family had
not been cooperative in the past and because she had very serious concerns
about the parents’ present ability to care for and protect their children. The
Department felt that removal of all four children from Michael and Melisa was
in the children’s best interest.
E. The Caseworker’s Observations
Christie Weaver, the ongoing caseworker for the children in this case,
testified that she met with Melisa. During the meeting, Melisa threatened to
beat her up, and the children behaved timidly around her, though Weaver never
saw her strike at them.
9
… Nick said that a criminal case is being investigated but that charges
had not been filed at the time of the termination trial.
11
Weaver also met with Michael, and gave him a service plan. He
completed his psychological evaluation, which diagnosed him as having an
adjustment disorder. The psychological evaluation recommended that Michael
enroll in individual supportive counseling for adjustment issues, that he
participate in parenting class, that he enroll in GED classes, and that his
probation officer be contacted for treatment plan purposes.10 Michael did
subsequently obtain a certificate for completing parenting classes. He failed,
however, to complete his service plan because he did not undergo a psychiatric
evaluation, participate in individual and family counseling, or submit to a drug
test.11
Michael visited regularly with the children and missed only three or four
visits. Weaver noted that there were several occasions when Michael did not
engage the children and when he would read a magazine during the visit. At
one visit, he pushed John away and told him to go bother someone else.
During a visit in July 2007, he threatened to spank John and reached down as
10
… Weaver testified that her understanding was that Michael was on
probation during this case for an aggravated assault charge from a prior year.
However, the record reflected that Michael was placed on deferred adjudication
for criminal mischief and that there was a plea in bar on aggravated assault.
11
… On the day that Weaver asked Michael to take a drug test, she had
concerns because his behavior was considerably different than it had been in
the past, and she wanted to rule out substance abuse.
12
though he were taking off his belt. Later during the visit, Michael became
agitated when Matt and John started throwing balls at him, and he took their
hands and squeezed them. Weaver described the rest of the visit as follows:
And then after -- after about 30 minutes in the visit, [Michael] took
a toy away from [Matt] and [Matt] teased [Michael] saying, “I got
the toy. I got the toy.” And [Michael] took the toy away from him
and he glared at [Matt] and [Matt] yelled at his father three times
to shut up, each time getting louder.
And [John] said something to [Matt] and [Michael] said, “You
tell him, Son.” And [Matt] then looked at his father and called him
a fucker. And at that point [Michael] reached out and grabbed
[Matt] by the shirt and jerked him towards him. And at that point
I interrupted the visit and asked [Michael] to leave.
After that visit, CPS took precautions to have two observers and to have a male
caseworker in the hallway or in the adjacent rooms every time that Michael
visited. Additionally, after a bonding assessment was completed, the visits
were reduced to once a month due to Michael’s behaviors, the chaos that they
created with the children, and the after-effects on the children following visits
with Michael.
Currently, Matt and Molly are together in a foster home, and John and
Eric are together in another foster home. Both Molly and Matt were nonverbal
when they came into care, and now they are able to communicate effectively.
Molly has been potty-trained, and Matt is attending Head Start, where he is
13
learning his ABCs. The one concern noted in Matt’s service plan was that he
had shown possible signs of sexual abuse.
Eric and John are progressing more slowly. Eric went from a little over
eight pounds in February 2007 to twenty-four pounds at his birthday in June
2007. Eric is in occupational therapy and works with Early Childhood
Intervention. Eric is seeing a doctor regularly to relearn how to use the muscles
that allow him to swallow. Due to Eric’s swallowing problems, his food has to
be prepared so that he will not aspirate or choke on what he eats or drinks.
Like Eric, John has shown signs of severe neglect. Generally, John is
fairly quiet and reserved. However, he can be extremely aggressive and violent
and has directed that behavior toward Eric and other children. Weaver testified
that, in her opinion, John has serious emotional problems. John has been
diagnosed with reactive attachment disorder, which is a life-long disorder, and
he is in therapy with a therapist at the University of North Texas. John was
also diagnosed with post-traumatic stress disorder and struggles with
attachment issues in that he attaches to inappropriate caregivers, such as
people whom he has been with for only fifteen or twenty minutes.
W eaver’s concerns for the scenario of returning the children to their
parents are that the children will be neglected, that Eric will not be fed, that the
children will not be cared for appropriately, and that they will again witness
14
domestic violence in the home. Weaver therefore recommended that the trial
court terminate the parental rights of Michael and Melisa and testified that
termination was in the children’s best interest. Weaver believed it would be
good for all four children to be placed together, but the Department’s current
plan was to place two of the children with one home and the other two children
in another home. Weaver asked that the trial court name the Department as
the managing conservator of the children. Weaver said that the permanency
plan for the children is for them to be adopted.
F. CASA’s Observations and Recommendation
Teresa Schultz, the court appointed special advocate for the children, said
that Michael’s initial visits with Molly, Matt, and John “didn’t go well at all.”
It appeared that Michael did not know how to interact with the children, so they
each stayed by themselves. She described the visits as “torture” and felt that
the children suffered when they spent time with Michael because they showed
signs of emotional distress. Schultz said that Michael’s behavior at the visits
improved as time went on. He seemed to apply what he had learned in his
parenting classes and seemed to interact better with his children.
15
Schultz also observed the first visit that Eric was taken to 12 and said that
Eric handled it well after some initial timidity. During that visit, Michael
interacted with all of the children and gave Eric a bottle and sang or read to
him. Michael changed one of Eric’s dirty diapers during that visit and also made
the caseworkers aware of Molly’s issues in going to the restroom.
Schultz recommended terminating the parental rights of all three parents
in this case. Schultz said that Molly and Matt are bonded together and that
John and Eric are bonded together. Schultz thinks that all four children should
be together, but if they cannot be together, the current groupings should be
maintained.
G. The Ad Litem’s Recommendation
Sylvia Andrews, the ad litem for the children, recommended that the trial
court terminate the parental rights of all three parents, that Melisa’s parents be
named temporary managing conservators of Molly and Matt, and that John and
Eric remain in the foster home where they are currently residing.
12
… Eric was not allowed to participate in visitations until he was healthy
enough to do so and until his parents started participating in their service plans.
16
H. Trial Court’s Disposition
After hearing the above evidence and reviewing the medical records from
Cook Children’s Hospital and MedStar, as well as Melisa’s records from John
PeterSmith Hospital, the trial court stated on the record:
With respect to the evidence of [Michael,] he had some -- had some
culpability in this matter. We have the testimony of Shawn Burton
from MedStar who says when he entered the house that one of the
things that they did was call [Michael] at work. He objected to the
removal of the child by MedStar EMTs.
We have the testimony of the caseworker where [Michael]
told her that he provided the care for [Eric] every night when he got
off work and [Eric] drank eight ounces of formula and he had given
him eight ounces just the night before.
So the long and the short of it is there is every indication the
-- and -- and we have the evidence that the grandparents had -- had
been cut out of any real relationship because of [Michael]. There
had been an altercation with [Michael]. Certainly I think that his
contact has been substantial.
He is the one who went to the hospital when [Eric] was
hospitalized. He says that the mother has a history of not taking
her meds. And we have the history in the case of -- there is a long
CPS involvement with this -- with this family going all the way back
to the -- to [Matt’s] birth.
The trial court thus found by clear and convincing evidence that Michael had
knowingly placed or knowingly allowed his children to remain in conditions or
surroundings that endangered the physical or emotional well-being of the
children, that he had engaged in conduct or knowingly placed the children with
17
persons who engaged in conduct that endangered the physical or emotional
well-being of the children, and that termination of the parent-child relationship
was in the children’s best interest. The trial court therefore terminated the
parent-child relationship between Michael and Matt, John, and Eric.13 This
appeal followed.
III. C ONSTITUTIONAL C HALLENGES
In his sixth through tenth points, which we will address first, Michael
argues that section 263.405 of the Texas Family Code violates his right to due
process and equal protection and that the statutory scheme contained in
section 263.405 violates the separation of powers provision of the Texas
constitution. Because the trial court granted Michael’s motion to extend the
time for filing his statement of points listing the issues raised on appeal, we
need not consider these constitutional challenges. See In re T.H., No. 02-07-
00464-CV, 2008 WL 4831374, at *9 (Tex. App.—Fort Worth Nov. 6, 2008,
no pet. h.) (mem. op.); In re O.L.A., No. 02-06-00321-CV, 2008 WL 706335,
13
… The trial court appointed CPS as managing conservator of all the
children, appointed Melisa’s parents possessory conservators of Matt and
Molly, and found that John and Eric are special needs children who would
benefit from remaining in their current placement and possible adoption.
18
at *8 (Tex. App.—Fort Worth Mar. 13, 2008, no pet.) (mem. op.). 1 4 We
overrule Michael’s sixth through tenth points.
IV. B URDEN OF P ROOF AND S TANDARD OF R EVIEW
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
not absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that
right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the
Department seeks not just to limit parental rights but to end them
permanently—to divest the parent and child of all legal rights, privileges, duties,
and powers normally existing between them, except for the child’s right to
inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon Supp. 2008); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
14
… We have already ruled that family code section 263.405(i) is void as
a violation of the separation of powers provision of the Texas constitution. See
In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort Worth 2008, pet. denied).
19
proceedings and strictly construe involuntary termination statutes in favor of
the parent. Holick, 685 S.W.2d at 20–21; In re E.M.N., 221 S.W.3d 815, 820
(Tex. App.—Fort Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the Department must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon
Supp. 2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established; termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); In
re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth
20
of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007
(Vernon 2002).
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated section 161.001(1)(D) or (E) and
that the termination of the parent’s parental rights would be in the best interest
of the child. C.H., 89 S.W.3d at 28. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction in the truth of its finding, then the evidence
is factually insufficient. H.R.M., 209 S.W.3d at 108.
V. F ACTUALLY S UFFICIENT E VIDENCE OF E NDANGERMENT
In his first and second points, Michael argues that the evidence is
factually insufficient to establish that he endangered his children. The
Department argues that there is factually sufficient evidence to support the trial
court’s endangerment findings under subsections (D) and (E) of section
161.001(1) of the family code.
21
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
To prove endangerment under subsection (D), the Department had to prove that
Michael (1) knowingly (2) placed or allowed his children to remain (3) in
conditions or surroundings that endangered their physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(1)(D). Under subsection (E),
the relevant inquiry is whether evidence exists that the endangerment of the
children’s physical well-being was the direct result of Michael’s conduct,
including acts, omissions, or failures to act. See J.T.G., 121 S.W.3d at 125;
Tex. Fam. Code Ann. § 161.001(1)(E). Additionally, termination under
subsection (E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E). However, it is not necessary that the parent’s conduct be
directed at the children or that the children actually suffer injury. Boyd, 727
S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the
children’s well-being may be inferred from parental misconduct standing alone.
Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort
Worth 2004, pet. denied). To determine whether termination is necessary,
22
courts may look to parental conduct occurring both before and after the
children’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth
2001, no pet.).
Stability and permanence are paramount in the upbringing of children.
See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.
denied). A factfinder may infer from past conduct endangering the well-being
of the children that similar conduct will recur if the children are returned to the
parent. See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet.
denied), disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H.,
89 S.W.3d at 17. Evidence of criminal conduct, convictions, and imprisonment
prior to the birth of a child will support a finding that a parent engaged in a
course of conduct that endangered the child’s well-being. J.T.G., 121 S.W.3d
at 133.
The record contains substantial evidence of subsection (D) environmental
endangerment and subsection (E) course of conduct endangerment to the
physical or emotional well-being of the children. Because the evidence
concerning these two statutory grounds for termination is interrelated, we
consolidate our examination of it. See J.T.G., 121 S.W.3d at 126.
The record demonstrates that Michael allowed Melisa to parent the
children during the day even though he was aware that she did not take her
23
bipolar medications. The record also demonstrates that Michael prevented
family, friends, and professionals from seeing Eric and initially denied MedStar
permission to take Eric to the hospital. Michael’s testimony that he was
feeding Eric multiple times in the evenings and that he took a full bottle was
contradicted by the medical records, testimony, and photographs that revealed
Eric’s malnourished body. And medical records showed that John was also
suffering from malnourishment.
The record also reveals that there were domestic violence issues between
Michael and Melisa, which the children witnessed. The record further reveals
that Michael had a criminal history that included a conviction for criminal
mischief. And at one point during the case, Matt’s service plan stated that he
showed signs of possible sexual abuse.
W e have carefully reviewed the entire record. Giving due deference to
the trial court’s findings, we hold that a reasonable trier of fact could have
formed a firm belief or conviction that Michael knowingly placed Matt, John,
and Eric in conditions and engaged in conduct that endangered the children’s
physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D),
(E); J.F.C., 96 S.W.3d at 265–66; C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d
at 124; In re S.G.S., 130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no
pet.) (holding that evidence was legally and factually sufficient to support
24
endangerment finding when evidence showed that mother and father failed to
feed one child adequate nutrition; jury could infer that actual harm to one child
meant that the physical and emotional well-being of other children in same
house were also jeopardized); see also In re M.R., 243 S.W.3d 807, 819 (Tex.
App.—Fort Worth 2007, no pet.) (holding that record contained legally and
factually sufficient evidence of both endangerment grounds when, among other
things, it showed that mother exposed children to domestic violence and
refused to participate in her CPS service plan). Accordingly, we hold that the
evidence is factually sufficient to support the trial court’s findings on
environmental endangerment and course of conduct endangerment. We
overrule Michael’s first and second points.
VI. T ERMINATION W AS IN T HE C HILDREN’S B EST INTEREST
In his third point, Michael argues that the evidence is factually insufficient
to support the trial court’s finding that termination of his parental rights was in
the children’s best interest. The Department argues that the evidence is
factually sufficient to support the trial court’s “best interest” finding.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)
(Vernon 2002). There is also 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.
25
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include: (1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available
to assist these individuals to promote the best interest of the child; (6) the plans
for the child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. 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
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Regarding the first factor, the children did not testify at trial. However,
the evidence demonstrated that there were very serious concerns about
26
Michael’s ability to parent and that the children did not want to leave their
foster parents to attend visits with Michael. The record also revealed that the
children are attached to and bonded with their foster parents.
Regarding the second factor—the children’s present and future physical
and emotional needs—Dr. Coffman testified that Eric will need lots of
developmental assistance through early childhood and Head Start. Weaver said
that Eric is seeing a doctor regularly to relearn how to use the muscles that
allow him to swallow and that due to Eric’s swallowing problems, his food has
to be prepared so that he will not aspirate or choke on what he eats or drinks.
John has been diagnosed with reactive attachment disorder, which is a life-long
disorder, and he is in therapy with a therapist at the University of North Texas.
John was also diagnosed with post-traumatic stress disorder and struggles with
attachment issues in that he attaches to inappropriate caregivers, such as
people whom he has been with for only fifteen or twenty minutes. Matt is
attending Head Start, where he is learning his ABCs.
The environmental endangerment and endangering course of conduct
discussion above addressed the third, fourth, and eighth factors—the present
and future physical and emotional dangers to the children, as well as Michael’s
parenting abilities, or lack thereof, and his acts and omissions.
27
Concerning the fifth factor, Michael attempted to better himself by
attending parenting classes. However, he did not take advantage of other
services that were offered to him.
Regarding the parties’ plans for the children—the sixth factor—Michael
did not list his plans for the children, though it can be presumed from the filing
of his appellate brief that he wanted the children returned to him. Weaver, the
ongoing case worker, testified that the Department’s plan is for the children to
be adopted. Schultz, the CASA worker, testified that all four children should
be together, but if they cannot be together, the current groupings should be
maintained. Sylvia Andrews, the ad litem for the children, recommended that
Melisa’s parents be named temporary managing conservators of Molly and Matt
and that John and Eric remain in the foster home where they are currently
residing.
Regarding the stability of the proposed placement—the seventh
factor—the evidence demonstrated that terminating Michael’s parental rights
would allow CPS to pursue adoptive placements for the children, which would
allow them to have the stability lacking in their current situation.
Finally, concerning the ninth factor—any excuse for the parents’ acts or
omissions—Michael was adamant that he had been feeding Eric and did not
accept any blame for the condition in which Eric was found.
28
Giving due consideration to evidence that the factfinder could have
reasonably found to be clear and convincing, and based on our review of the
entire record, we hold that a reasonable trier of fact could have formed a firm
belief or conviction that the termination of Michael’s parental rights would be
in the children’s best interest. See S.G.S., 130 S.W.3d at 239–41 (holding
that clear and convincing evidence existed that termination of mother’s and
father’s parental rights was in children’s best interest when, among other
factors, children suffered severe health problems and significant developmental
delays while in their care and parents did not utilize services to maintain a
stable living environment); see also In re J.L.W., No. 02-08-00179-CV, 2008
WL 4937970, at *9–10 (Tex. App.—Fort Worth Nov. 20, 2008, no pet. h.)
(mem. op.) (holding that evidence was legally and factually sufficient to support
trial court’s best interest finding when evidence revealed that returning child to
mother would risk child’s emotional and physical well-being because of couple’s
past history of domestic abuse and because of mother’s inability to care for any
of her four children). Accordingly, we hold that the evidence is factually
sufficient to support the trial court’s best-interest finding. We overrule
Michael’s third point.
29
VII. M OTION FOR C ONTINUANCE P ROPERLY D ENIED
At the beginning of the termination trial on December 17, 2007, the trial
court heard Michael’s motion for continuance, which he had filed that same
day. Michael argued that a continuance was needed because he had a
psychiatric evaluation scheduled for December 19. The Department responded
by reminding the trial court that there had been a hearing on October 1, 2007,
which addressed the issue of Michael’s getting a psychiatric evaluation, and
that he had failed to comply with the trial court’s order giving him thirty days
to undergo the evaluation. The trial court thereafter denied Michael’s motion
for continuance.
In his fourth point, Michael argues that the trial court abused its discretion
by denying his motion for continuance, which he sought in order to obtain a
psychiatric evaluation to comply with his family reunification plan. The
Department responds that the trial court properly overruled Michael’s motion for
continuance.
We review a trial court’s ruling granting or denying a motion for
continuance for an abuse of discretion. See BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 800 (Tex. 2002). To determine whether a trial
court abused its discretion, we must decide whether it acted without reference
to any guiding rules or principles; in other words, whether the act was arbitrary
30
or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Whether the trial
court grants or denies a motion for continuance is within its sound discretion.
See BMC Software, 83 S.W.3d at 800; Villegas v. Carter, 711 S.W.2d 624,
626 (Tex. 1986); see also In re E.L.T., 93 S.W.3d 372, 374 (Tex.
App.—Houston [14th Dist.] 2002, no pet.). The trial court’s action in denying
a continuance will not be disturbed unless the record discloses a clear abuse of
discretion. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988).
A motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, consent of the parties, or by operation of law. Tex.
R. Civ. P. 251. If appellant provides no record of the evidence presented to the
trial court, we must presume that the evidence supports the ruling. See Wil-
Roye Inv. Co. II v. Wash. Mut. Bank, F.A., 142 S.W.3d 393, 401 (Tex.
App.—El Paso 2004, no pet.); In re Guardianship of Berry, 105 S.W.3d 665,
667 (Tex. App.—Beaumont 2003, no pet.).
Here, the record demonstrates that the trial court’s October 1, 2007 order
required Michael to “attend, participate in, and follow the recommendations of
a psychiatric evaluation.” The trial court further ordered that “the psychiatric
evaluation for MICHAEL [F.] be arranged by and paid for by the Department of
Family and Protective Services within the next thirty (30) days.” More than
31
thirty days elapsed during which Michael failed to comply with the trial court’s
order. Although the Department argues in its brief that CPS had previously
arranged the required psychiatric exam for Michael on October 1, 2007, and
that he missed the appointment, the Department does not point to any place
in the record supporting its argument. At the hearing, the Department stated
only that Michael had failed to undergo a psychiatric evaluation “in compliance
with the Court order within 30 days, which the Department had arranged for
him to do.” Michael did not dispute this, nor did he put on evidence showing
why he had been unable to comply with this provision of his service plan prior
to the termination trial. As Michael notes in his brief to this court, “The record,
however, is absolutely silent on the reason for the delay in securing the
psychiatric evaluation.”
Under these facts, we cannot conclude that the trial court abused its
discretion by denying Michael’s continuance for more time to complete his
service plan. See D.B., No. 02-07-00428-CV, 2008 WL 2553343, at *6 (Tex.
App.—Fort Worth June 26, 2008, no pet.) (mem. op.) (holding that trial court
did not abuse its discretion by denying appellant’s motion for continuance when
he had four months’ notice of trial setting but waited until day of termination
trial to file motion for continuance and did not claim that he was unprepared for
trial); see also In re S.W., No. 02-08-00164-CV, 2008 WL 4531711, at *3
32
(Tex. App.—Fort Worth Oct. 9, 2008, no pet.) (mem. op.) (holding that when
parent chooses to travel out of state and neglect her service plan and then at
the time of the termination trial requests a continuance in order to complete the
plan, the trial court does not abuse its discretion by denying a continuance).
Moreover, we note that even if Michael had been granted more time to
complete his service plan, he cannot demonstrate that the result of the
termination trial would have changed because his parental rights were not
terminated for failing to complete his service plan but instead were terminated
for other statutory reasons. See generally Tex. Fam. Code Ann.
§ 161.001(1)(O) (listing as a separate ground, not linked to endangerment, the
failure to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the
child). For this reason as well, the trial court did not abuse its discretion by
denying Michael’s motion for continuance. Cf. In re H.B., No. 02-06-00102-
CV, 2006 WL 3438193, at *2 n.6 (Tex. App.—Fort Worth Nov. 30, 2006, no
pet.) (mem. op.) (stating that given counsel for the Department’s representation
that he was proceeding on “D and E” grounds, not on the added mental health
grounds, no abuse of discretion occurred when the trial court denied appellant’s
motion for continuance).
33
Furthermore, Michael’s written motion failed to comply with rule 251
because it was not supported by verification or affidavit, and the trial court
could have properly denied the motion on this ground as well. See Tex. R. Civ.
P. 251; In re J.A., No. 02-05-00454-CV, 2006 WL 3114434, at *9 (Tex.
App.—Fort Worth Nov. 2, 2006, no pet.) (mem. op.) (holding that trial court did
not abuse its discretion by denying appellant’s motion for continuance because
appellant did not comply with rule 251 when he requested a continuance
without a supporting affidavit). We therefore overrule Michael’s fourth point.
VIII. P HOTOGRAPHS P ROPERLY A DMITTED
In his fifth point, Michael contends that the trial court committed
reversible error by admitting exhibits containing photographs for which the
proper evidentiary predicate had not been laid. Specifically, Michael contends
that the sponsoring witness, through whom the photographs were admitted,
failed to address whether the photographs had been altered. The Department
responds that the exhibits were properly admitted.
The Department attempted to introduce into evidence exhibits 6 through
15 through Stephanie Nick, a former investigator with the Department. Nick
testified that the exhibits contained photographs of Eric that had been taken on
February 1, 2007, and that the photographs fairly and accurately portrayed
what he looked like when she saw him on February 2, 2007. Michael objected
34
on the basis that the proper predicate had not been established, and the trial
court allowed the Department to go back through its predicate again. The
Department complied, and Michael reiterated his objection. The trial court
sustained Michael’s objection. The Department thereafter questioned Nick in
more detail:
Q. (BY MS. MILOUD) Ms. Nick, I’m again handing you
what’s been marked as Petitioner’s Exhibits 6 through 15.
A. Uh-huh.
Q. You’re familiar with how [Eric] looked on the 2nd day of
February 2007; is that correct?
A. Yes, ma’am.
Q. And do these pictures reflect what he looked like on that
date to you?
A. Yes, ma’am.
Q. Okay. And they were taken on the 1st, but he looked –
he was in this condition when you saw him on the 2nd; is that
correct?
A. Yes, ma’am.
Q. Okay. To your knowledge, you have had these pictures
in your custody; is that correct?
A. Yes. They have been in my case file.
Q. Okay. And do you know if they have been altered in any
way to not clearly, accurately reflect what you saw on that day in
the hospital?
35
A. I don’t believe they have been altered, no.
Q. Okay. So this is what he looked like on that date; is that
correct?
A. Yes, ma’am.
Q. And you can identify every one, 6 through 15, as the
same child and what he looked like on that date?
A. Yes, ma’am.
Michael thereafter took Nick on voir dire and asked whether she was present
when the photographs were taken, whether she was present when they were
developed, whether she knew the name of the person who took them, and
whether she really knew whether they had been altered. At the conclusion of
the voir dire, Michael objected again that the proper predicate had not been
established and that there was a break in the chain of custody. The
Department responded that the chain of custody did not need to be established
in a civil suit such as this one and that the rules of evidence do not require that
the photographer be called in order to admit the pictures. The trial court
overruled the objections and admitted Petitioner’s Exhibits 6 through 15.
Michael made similar objections when the Department attempted to admit
exhibits 16 and 17, which were photographs of Eric on his first birthday. The
trial court admitted the photographs over Michael’s objections.
36
The admission or exclusion of evidence is left to the trial court’s sound
discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.
1995); Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 757
(Tex. App.—Fort Worth 1998, no pet.). “Admissibility of a photograph is
conditioned upon its identification by a witness as an accurate portrayal of the
facts, and on verification by that witness or a person with knowledge that the
photograph is a correct representation of such facts.” Davidson v. Great Nat’l
Life Ins. Co., 737 S.W.2d 312, 314–15 (Tex. 1987); see also Tex. R. Evid.
901(b)(1) (stating that all that is necessary is testimony from a witness with
personal knowledge that the photograph accurately depicts what it claims to
be). The authentication requirement is “satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”
Tex. R. Evid. 901(a).
Under the above rules, Nick need not have taken the photographs or
observed them being taken in order to testify about them. See Kessler v.
Fanning, 953 S.W.2d 515, 522 (Tex. App.—Fort Worth 1997, no pet.) (stating
that “predicate for admissibility need not be laid by the photographer, the
person photographed, or even a person who was present when the photograph
was taken”). She testified that the pictures accurately depicted Eric’s condition
37
on the date that she saw him. Her testimony therefore met the requirements
of Texas Rule of Evidence 901, and the trial court did not abuse its discretion
by admitting the exhibits containing photographs of Eric. We overrule Michael’s
fifth point.
IX. C ONCLUSION
Having overruled Michael’s ten points, we affirm the trial court’s order
terminating his parental rights to Matt, John, and Eric.
SUE WALKER
JUSTICE
PANEL: HOLMAN, WALKER, and MCCOY, JJ.
DELIVERED: December 18, 2008
38