in the Interest of Z.J.C. and T.J.M.C., Minor Children

IN THE
TENTH COURT OF APPEALS

No. 10-09-00026-CV

IN THE INTEREST OF Z.J.C. AND T.J.M.C., MINOR CHILDREN

From the County Court at Law
Hill County, Texas
Trial Court No. 46156

OPINION

S.T. appeals the trial court’s judgment terminating her parental rights to her two

children, Z.J.C. and T.J.M.C. Because the evidence is sufficient to support the trial

court’s finding of a predicate act for termination and because the trial court did not

abuse its discretion in denying S.T.’s motion for continuance, the trial court’s judgment

is affirmed.

BACKGROUND

S.T.’s two children were removed from her home in Hill County in late January

of 2008 because the condition of the home was deplorable. S.T. was admitted to the

hospital on the same day of the removal, but when discharged a few days later in early

February, she moved to Palacios. In late March, she moved to Houston. She missed

court dates; she made excuses for not visiting her children; she did not provide any
monetary support for her children; and she lacked interest in communicating with her

children. S.T. never saw her children again.

STATEMENT OF POINTS

First we must address whether we may consider any issues raised by S.T. on

appeal.

The Texas Family Code requires an appellant of a state-initiated termination

order to file with the trial court, no later than 15 days after the final order is signed, a

statement of points on which the appellant intends to appeal. TEX. FAM. CODE ANN. §

263.405(b) (Vernon 2008). We, as the "appellate court[,] may not consider any issue that

was not specifically presented to the trial court in a timely filed statement of points…."

Id. § 263.405(i); In the Interest of E.A.R., 201 S.W.3d 813 (Tex. App.—Waco 2006, no pet.).

Although not labeled as a statement of points, S.T. presented specific issues for review

in her timely filed motion for new trial. A statement of points may be combined with a

motion for new trial. TEX. FAM. CODE ANN. § 263.405(b-1) (Vernon 2008). S.T. later

specifically adopted those issues as her statement of points. Thus, we consider those

issues as timely filed points and proceed to review only those issues on appeal.

However, S.T. later attempted to add more issues in an untimely filed statement

of points and provided further additional issues in her appellate brief. None of the

untimely raised issues challenge the constitutionality of section 263.405(i) or complain

that trial counsel was ineffective for failing to file a statement of points. See In the

Interest of J.O.A., No. 08-0379, 2009 Tex. LEXIS 250, 52 Tex. Sup. J. 714 (Tex. 2009).

Because none of the additional issues were specifically presented to the trial court in the

In the Interest of Z.J.C. Page 2
statement of points included within the motion for new trial, we do not consider those

additional issues. See In the Interest of E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco

2006, no pet.).

LEGAL AND FACTUAL SUFFICIENCY REVIEW

In her first issue, S.T. contends the evidence is legally and factually insufficient to

support the trial court’s finding of three predicate acts under section 161.001(1) of the

Texas Family Code. TEX. FAM. CODE ANN. § 161.001(1) (Vernon 2008). Only one

predicate act under section 161.001(1) is necessary to support a judgment of termination

when there is also a finding that termination is in the child's best interest. In re A.V., 113

S.W.3d 355, 362 (Tex. 2003). In this case, the trial court made a finding that termination

was in the best interest of the children; and, as discussed later herein, that finding is not

properly challenged on appeal. We therefore focus on the challenge to the predicate act.

One of S.T.’s complaints is that the evidence is legally and factually insufficient

to support a finding under subsection (D) that she “knowingly placed or knowingly

allowed the child(ren) to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child(ren).” TEX. FAM. CODE ANN. § 161.001(1)

(D) (Vernon 2008). In this issue, S.T. challenges all parts of subsection (D). However,

she only challenged the “knowing” element of subsection (D) in her points contained

within her motion for new trial. Therefore, whether the knowing element is legally or

factually sufficient is the only portion of this complaint that we consider. The

remaining portion of this complaint is dismissed. See In the Interest of E.A.R, 201 S.W.3d

813, 814 (Tex. App.—Waco 2006, no pet.).

In the Interest of Z.J.C. Page 3
Standard of Review

In conducting a legal sufficiency review in a parental termination case:

[A] court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed
a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder's conclusion and the role of a court conducting
a legal sufficiency review, looking at the evidence in the light most
favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to be incredible. This does not mean that a court
must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew
the analysis of whether there is clear and convincing evidence.

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002)) (emphasis in J.P.B.).

In a factual sufficiency review,

[A] court of appeals must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. . . .
[T]he inquiry must be "whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the
State's allegations." A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.

In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.

2002)) (internal footnotes omitted) (alterations added).

In the Interest of Z.J.C. Page 4
Applicable Facts

Child Protective Services of Hill County received two reports in late January of

2008, within days of each other, of the physical neglect of S.T.’s two children. When

Beverly Gerke, an investigator with Child Protective Services, interviewed the children,

they both told her that they did not have enough to eat and did not have water at the

house. When she arrived at S.T.’s house, the house was cold. There was a terrible odor

in the house. There were rat feces in the kitchen. There were roaches everywhere. The

refrigerator had roaches in it. There was some food, but some of it was moldy. There

was not enough food to sustain a child. It was not a livable situation for any adult or

child. In the bathroom, the commode was covered in feces. There were feces on the

floor. There were also trails of feces on the floor going to and from the back bedroom,

which was S.T.’s mother’s bedroom, and the bathroom. There was not a room

specifically for the children. On the day of the removal, S.T. appeared disoriented.

S.T. proposed that the reason the house was a mess was that she became sick in

November and was so sick that she was not aware the house was in that condition.

But S.T.’s cousin, Shirley, disputed S.T.’s proffered reason for the condition of the

house. Shirley testified that in August or September of 2007, she visited S.T.’s home and

found it to be “pretty nasty” and “pretty rough.” She would not sit down anywhere.

She observed roaches and trash on the floor. At that time, Shirley did not venture past

the living room. In November, S.T. and the children did not have electricity in their

home; and S.T. asked Shirley if they could spend the night in Shirley’s guest house. S.T.

and the children spent one night with Shirley but left after that night because of a

In the Interest of Z.J.C. Page 5
disagreement S.T. had with Shirley’s house rules. Shirley observed that S.T. did not

show any signs of being sick that night.

A week before Christmas of 2007, Shirley and her son stopped by S.T.’s house to

leave Christmas gifts for the children. No one was home. Shirley stated that the house

was “just nasty beyond comprehension.” She stated that she saw rat feces and roaches

during this visit. Later, just a few days prior to the removal of the children, Shirley

went back to S.T.’s house to pick up some papers for S.T.’s mother who had been taken

to the hospital. S.T. “cussed [Shirley] out” because S.T. believed she was more sick than

her mother and that she was the one who needed to be taken to the hospital, not her

mother. Shirley testified that S.T. did not have any outward appearance of being sick.

S.T. was walking around and was not incoherent. Shirley stated that at that time, the

house was so filthy she called the police. She believed that the house was not a safe

environment for the children.

Shirley further testified that after the children were removed, she and her son

went over to S.T.’s house to try to clean it up for the children’s return. But after

removing six 30 gallon trash bags full of trash from just the kitchen floor, Shirley gave

up. She stated that the amount of filth in the house was not just weeks’ worth of filth; it

was months’ worth of filth.

Apparently, these months were not the only time S.T.’s home was unclean. At

least one of S.T.’s children told Shirley that they would move from “worse house to

worse house.”

In the Interest of Z.J.C. Page 6
 S.T.’s mother testified that she was a substitute teacher, had asthma, and was

physically unable to clean the house when she got home after work. She stated that S.T.

had become so wrapped up in herself that she did not see what was going on with the

rest of the family. S.T. expected the children who were 6 and 8 years old to do most of

the cleaning. S.T.’s withdrawal had started in the summer of 2007. S.T. would just stay

in her room and play video games.

Application

After looking at the evidence in the light most favorable to the trial court's

finding that S.T. knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endanger the physical or emotional well-being of the

children, we hold that a reasonable trier of fact could have formed a firm belief or

conviction that the finding was true. The evidence of S.T.’s knowledge was legally

sufficient.

After giving due consideration to evidence that the trial court could reasonably

have found to be clear and convincing, we hold that the evidence was such that the trial

court could reasonably form a firm belief or conviction that S.T. knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which

endangered the physical or emotional well-being of the children. The evidence of S.T.’s

knowledge was factually sufficient.

S.T. further complains in her brief that the trial court’s finding of best interest

should be reversed. This part of S.T.’s issue was not specifically presented to the trial

court in her statement of points located in her motion for new trial and is dismissed.

In the Interest of Z.J.C. Page 7
TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008); see In the Interest of E.A.R, 201 S.W.3d

813, 814 (Tex. App.—Waco 2006, no pet.).

Conclusion

Because the evidence was legally and factually sufficient to support one

predicate act, S.T.’s first issue is overruled.

CONTINUANCE

S.T.’s second issue contains two parts. In the first part of the issue, S.T. argues

that the trial court abused its discretion in denying her motion for continuance. We

begin by assuming without deciding that the motion for continuance was properly

supported by affidavit in the form of counsel’s verification.1 See TEX. R. CIV. P. 251. The

decision to grant or deny a motion for continuance is within the trial court's sound

discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); State v. Crank, 666 S.W.2d

91, 94 (Tex. 1984). Unless the record discloses a clear abuse of that discretion, the trial

court's action in granting or refusing a motion for continuance will not be disturbed.

Villegas, 711 S.W.2d at 626; Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 292

n.142 (Tex. 2004).

It was alleged in S.T.’s motion for continuance that the continuance was needed

because counsel was unable to contact S.T. until November 20, 2008 when the trial was

1 It is unclear from the case law whether a verification of the motion can substitute for a supporting
affidavit as specified in the rule. In this case, the verification is not sufficient because it is not based on
personal knowledge and does not verify that the facts contained in the motion are true and correct.
Rather, the verification only asserts that the allegations are based on information and the belief of the
affiant. See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Humphreys v. Caldwell, 888 S.W.2d 469, 470
(Tex. 1994).

In the Interest of Z.J.C. Page 8
scheduled for December 1, 2008. Counsel requested additional time to prepare for trial.

At the hearing on the motion, the trial court attributed the delay in communication with

counsel to S.T., stating that S.T. knew the Department was involved in the case and

could have received information from the Department had she tried. The trial court’s

reason for the denial is amply supported by the record which shows a history of S.T.’s

unwillingness to do what was necessary to have her children returned to her.

Therefore, we find the trial court did not abuse its discretion in denying S.T.’s motion

for continuance. Even if the trial court abused its discretion in denying the motion for

continuance, S.T. cannot show harm. S.T. never alleged in her motion for continuance,

her motion for new trial, or in her brief on appeal how much time she needed or what

other resources could have been discovered had she had additional time to prepare for

trial. What she would have done with more time was never asserted and thus remains

a mystery.

In the second part of her issue, S.T. argues that her due process rights were

violated when the trial court denied her motion for continuance. This part of the issue

was not specifically presented to the trial court in S.T.’s statement of points contained

within her motion for new trial and is dismissed. TEX. FAM. CODE ANN. § 263.405(i)

(Vernon 2008); see In the Interest of E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco 2006,

no pet.).

Because the trial court did not abuse its discretion in denying S.T.’s motion for

continuance, her second issue is overruled.

In the Interest of Z.J.C. Page 9
 ISSUES DISMISSED

S.T.’s last two issues, that she was denied due process when she was denied a

jury trial and that her trial counsel was generally ineffective, were not specifically

presented to the trial court in her statement of points located in her motion for new trial

and are dismissed. TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008); see In the Interest of

E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco 2006, no pet.).

CONCLUSION

Having overruled the issues properly before us, we affirm the trial court’s

judgment.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed July 22, 2009
[CV06]

In the Interest of Z.J.C. Page 10