in the Interest of A.C.H. and C.L.W., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00072-CV

IN THE INTEREST OF A.C.H. AND
C.L.W., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellants E.S.W. (Father) and T.H. (Mother) appeal the trial court’s

judgment terminating their parental rights to their two children, A.C.H. and C.L.W.

In two issues, Father challenges the sufficiency of the evidence supporting the

trial court’s endangerment and best interest findings. In three issues, Mother
1
See Tex. R. App. P. 47.4.
challenges the sufficiency of the evidence supporting the trial court’s best interest

finding, contends that the trial court violated her due process rights by failing to

release her from a bench warrant, and argues that the trial court abused its

discretion by denying her motions for continuance. We affirm.

II. Background

A. Trial Evidence

Michelle Gilley

Michelle Gilley is a Department investigator. She testified that the

Department received a negligent supervision referral in September 2009 relating

to drug use in Mother’s and Father’s home. Gilley interviewed Mother, B.W.

(Mother’s grandfather), and the children at B.W.’s home in late September, and

Mother and B.W. expressed great willingness to cooperate with the Department.

Mother also told Gilley, however, that Father was incarcerated at the time for

violating his probation. Mother said that she had lived on Prelude Drive before

moving into B.W.’s home with the children, that others living in the Prelude Drive

house had drug paraphernalia in the home, and that they had used marijuana.

Mother later told Gilley that others living in the house had been selling

methamphetamines. Mother denied having used drugs and voluntarily submitted

to an oral swab drug test. Gilley also observed the children at the visit, and she

testified that she did not have any concerns about the children at the time.

Gilley met with Father at his residence on Prelude Drive on December 14,

2009, but only after Father missed several previously-scheduled appointments.

2
Father admitted smoking marijuana but denied using other drugs. He also told

Gilley that he was not employed, that he was on probation, and that he was

subject to random drug tests. Father also specifically denied any history of

domestic violence.

The day after meeting with Father, Gilley received another referral

involving Mother and Father for an incident that had occurred on December 11,

2009. A witness had called the police after seeing an altercation between Mother

and Father in the street and noticing that both children were present. Mother

later told Gilley that she and Father had argued about money and that Father

kicked her in the side, pulled her hair, forced her out of the vehicle, put her onto

the ground, and kicked her several more times.

B.W. called Gilley in January 2010 and told her that Mother had moved to

Kansas City with the children. Mother called Gilley later in January, but instead

of offering cooperation, Mother cursed and yelled at her. Gilley located Mother at

the Prelude Drive house on February 1, and met with her in person at B.W.’s

house the next day. Mother denied living at the Prelude Drive house, said that

she was there only to retrieve her things, and told Gilley that she had mostly lived

with B.W. at his house since December. However, Mother told Gilley that she

was not employed, that she had used methamphetamine the previous night, and

that she had smoked marijuana four or five days earlier. Mother also admitted

having a bad methamphetamine habit and said that Father was “on

[methamphetamine] bad.” Mother denied doing drugs with Father, however, and

3
said that Father had kept the children during the times that she was using drugs.

Gilley agreed that neither parent had admitted to using drugs with the children

present.

Gilley testified that she then began looking at placement options, but none

of the three family members proposed by Mother was acceptable. The children’s

paternal grandfather had a criminal history, the maternal aunt had a history with

the Department, and B.W. had recently provided misleading information to Gilley

when she was trying to locate Mother. Thus, Gilley requested removal, and the

children were placed into foster care.2

At the time of removal, the children were two and three years’ old,

respectively, and they had speech delays, lice, and needed dental work because

of brown decay-spots on their teeth. Gilley testified that the children

nevertheless seemed happy and that they interacted well with the foster parents.

Both children did, however, ask for their parents.

Gilley spoke with Father on February 9, 2010. Father told her that his

probation officer had referred him for a drug assessment. Gilley spoke with

Mother on February 22, and Mother told her about a recent domestic violence

incident involving Father. Mother had declined to give Father money and a ride,

and Father had responded by trying to pull Mother out of her truck. Father also

2
Gilley wrote on the notice of removal form that removal was based on
Mother’s admission of methamphetamine use; Gilley did not note any domestic
violence allegations on the form.

4
grabbed a can of gasoline from the back of the truck and poured gasoline all over

Mother and the truck. Father then held a lighter toward Mother and threatened to

start a fire. Father admitted pouring gasoline on Mother’s truck, but he denied

pouring gasoline on Mother or threatening to start a fire. Father also admitted

that he threw a brick at Mother on a separate occasion and that the brick hit

Mother in her side, but Father said he did so because she was trying to run into

him with her truck.

Gilley testified that she again met with Father following his visit with the

children at the Department offices on February 26. Father admitted arguing with

Mother during the December 11 incident, but he denied any physical

confrontation. Father also admitted using marijuana and “a little bit of ice” within

the previous week, but he told Gilley that he would be interested in drug

treatment.

Gilley testified that she reviewed Mother’s and Father’s criminal histories

as part of her investigation. Mother did not yet have a criminal record, but Father

did. Between 1999 and 2010, Father had pleaded guilty to criminal mischief,

possession of marijuana, assault causing bodily injury, and three instances of

theft. Father had also pleaded nolo contendere in 2002 to evading arrest or

detention.

On cross-examination, Gilley testified that she found the children to be

appropriately cared for and healthy at the time of the initial referral in September

2009 and that the initial referral was closed as “ruled out.” She also testified that

5
the children were bonded to their mother, that the children appeared to have an

appropriate relationship with Mother, and that the children seemed happy and

clean. Gilley also agreed that she did not find anything that involved physical

harm to either child in her investigation of the September and December 2009

referrals.

Brandi Gaut

Brandi Gaut works for Johnson County and is Mother’s probation officer.

In July 2010, Mother was placed on five years’ probation for possession of less

than one gram of a controlled substance.3 The offense date was April 28, 2010.

Gaut met with Mother in July 2010 and learned that Mother was pregnant, was

living with a friend who was also on probation, and was planning to move in with

B.W. Mother also informed Gaut of this case but asked Gaut not to tell the

Department caseworker about her probation.

Mother also submitted to drug tests during her probation. Mother admitted

using methamphetamines and marijuana on July 7, 2010, and using marijuana

on August 10 and 15, 2010. Because of the continued drug use, Gaut offered

Mother the opportunity to voluntarily participate in the “H.O.P.E. In Jail” drug

rehabilitation program, but Mother declined because she was pregnant and had

3
Mother was also indicted in Tarrant County in July 2010 for an alleged
November 2007 felony of making a false statement in a government record. The
indictment alleged that Mother fraudulently stated in an application for
government assistance that no one in her home had worked during the previous
three months.

6
other obligations, which Gaut testified included her other children. Thus, Gaut

contacted the district attorney’s office, a warrant was issued, and Mother was

arrested. Mother’s probation was not revoked, but the court ordered her into the

H.O.P.E. In Jail program for 120 days.

Gaut met with Mother twice during her incarceration. During the first visit,

Mother was very agitated and vehemently objected to being told not to have any

further contact with Father.4 Mother’s demeanor was much better during the

second jail visit, and Gaut testified that Mother was in compliance with the terms

of her probation at the time of the second visit.

Rebecca Collins

Rebecca Collins was Mother and Father’s caseworker from February

through September 2010. Collins met with Mother and Father at the show cause

hearing and discussed the services they would need to complete. Mother

expressed interest in drug counseling and seemed eager to work her services.

Father also expressed interest in working services and said that he would soon

begin drug rehabilitation, that he was subject to random drug testing, and that he

was attending Narcotics Anonymous meetings. Father also expressed interest in

anger management classes.

4
Gaut testified that one condition of Mother’s probation was having no
contact with Father. However, Mother and Father had sent letters to one another
but had addressed them to B.W. B.W. had forwarded the letters for them.

7
 Collins testified, however, that neither Mother nor Father followed up with

their drug assessment referrals and that she had to get new referrals for each

parent in May or June 2010. Collins also testified that although she was

encouraging Mother and Father to begin their services, they had not started by

May 2010. They had made a few appointments, but they did not attend. Mother

missed her psychological evaluation appointment in May 2010, both Mother and

Father missed their individual counseling appointments in March 2010, and

neither parent reported that they had found stable housing or employment.

Father submitted to a drug assessment in May 2010, but he was incarcerated

shortly thereafter and had not worked toward the completion of his other services

before going to jail.

Mother had not worked any of her services as of June 2010. Mother did

attempt to have a drug assessment done in early June, but she was not able to

do so because the referral had expired. Also in June, Mother reported to Collins

that she was pregnant and that Father was the father of the child. Mother and

Father had reported to Collins that they were not together anymore, but Collins

did not believe them because there were instances of domestic abuse after the

children were removed5 and witnesses had reported having seen Mother and

Father in the same car together.

5
Mother reported as late as March 2010 that Father had broken her nose
on the day of one of her visits with the children.

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 Collins also discussed Mother’s ongoing drug use with her in June 2010.

Mother submitted to a drug test in June, but she never completed a drug

assessment, a psychological evaluation, or individual counseling. Collins

testified that Mother had not worked any of her services before she went to jail in

August 2010. However, Collins acknowledged that it is not uncommon for

parents to wait six months before starting on their services.

Mother and Father had visitations with the children after removal, but the

visitations were separate because of the domestic violence allegations. Father

attended all but one or two of the weekly visitations before his incarceration, and

Mother attended all but one of her weekly visitations before going to jail. Collins

testified that Mother’s and Father’s interactions with the children were

appropriate during the visitations, and they brought the children food and other

things to do together during the visits. Collins observed most, if not all, of the

visitations, and nothing concerned her about the visitations. She agreed that

Mother and Father were very bonded with the children.

Collins testified that there were some concerns with the children shortly

after they were placed in foster care. A.C.H. was behind developmentally, had

shown signs of depression, and began attending occupational therapy and

speech therapy. C.L.W. had ear infections and had tubes placed in his ears, and

both children had cavities in their teeth. After a time in foster care, A.C.H.’s

speech, fine motor skills, and behavior had improved.

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 Collins left the Department in September 2010. As of that time, the

permanency plan for the children had changed from reunification to termination

and adoption because the parents had both been incarcerated, and neither had

completed their services.

Nicoshia Jones

Nicoshia Jones testified that she assumed responsibilities in this case as

the Department caseworker when Collins left in September 2010. Jones learned

during the case that Mother was incarcerated in Johnson County and that she

was involved in and had completed the H.O.P.E. In Jail program. Despite

Mother’s completion of that drug program, Jones testified that she believed

termination of Mother’s and Father’s parental rights to be in the children’s best

interest because Mother and Father cannot provide the stability the children

need. Jones also testified that, in her opinion, the Department had made

reasonable efforts to work with Mother and Father before their incarcerations and

that parents are at fault if they engage in conduct that leads to incarceration.

Jones testified that she visited with the children monthly, but she admitted

that she had not had any personal contact with Mother or Father because they

had been in jail. Jones further admitted to having little personal knowledge about

the parents, their interactions with the children, or their bonds with the children,

and she said that Mother and Father had each written letters to the children from

jail. But Jones testified that Mother’s release from the Johnson County jail during

the trial did not affect her opinion concerning termination of parental rights

10
because Mother still had “a ways to go” with the services she did not work before

going to jail.

Cogney Overstreet

Cogney Overstreet testified that she witnessed the December 2009

incident between Mother and Father. Overstreet testified that she saw Mother

and Father arguing and that they had left their truck in the middle of the street.

Mother asked Overstreet to watch the children, and Mother followed Father to

continue the argument. Overstreet took the children inside her home, and she

also talked with the police when they arrived. Overstreet denied seeing a

physical altercation between Mother and Father, and she denied telling the police

that Mother and Father had a physical altercation. She also denied that the

children were outside the truck, testifying that she personally removed the

children from the truck before taking them inside her home.

Overstreet testified that she lives across the street from Father and that

she had observed him with the children on many occasions. She testified that

she believed Father was a “really good dad,” that he was “always very attentive

to the kids,” and that he “just seemed like any other dad with his children.”

Overstreet also testified that Mother is a good and loving mom and that she and

the children seemed to have a good relationship. However, Overstreet

acknowledged that good parents do not use methamphetamines, engage in

domestic violence in front of their children, or engage in criminal activities that

result in incarceration.

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 Foster Mother

M.E.S. testified that she is the children’s foster mother and that the

children had been in her home since February 2010. She testified that she

noticed that the children’s general appearance was not healthy when they first

arrived. They had splotchy coloring on their skin, lice, and significant dental

issues, and the children appeared to have not been eating enough nutritional

foods. M.E.S. testified that the children showed “very big improvement” after

they received vitamins and started eating healthier foods; their coloring improved,

and they had more energy.

M.E.S. agreed that A.C.H. was bonded with his family and that he would

ask for Father. Father’s visitations with the children stopped before Mother’s,

and A.C.H. would inquire about his father and why he was not at the visitations.

At about this same time, A.C.H. returned to M.E.S.’s home after a visitation with

Mother, and he tore a picture of Mother into little pieces. A.C.H. also sometimes

had meltdowns in public when he realized he was not with Mother and Father,

and he had difficulty adjusting after visitations with them. M.E.S. also testified

that Mother seemed appropriately concerned for C.L.W. when C.L.W. had tubes

placed in his ears and that she had attended the doctor’s appointment.

M.E.S. testified that she had a lot of developmental concerns about A.C.H.

when he first arrived in her home. He was difficult to understand when he spoke,

and he did not always understand what others told him and would instead repeat

back any instruction without taking action. A.C.H.’s speech difficulties started to

12
improve with therapy, however. His ability to articulate is still poor, but he is able

to understand others much better than before.

A.C.H. also required occupational therapy. Although he was more than

three years’ old when he entered foster care, A.C.H. could not hold a fork or pick

up a crayon. After therapy, A.C.H. learned to do these things and to dress

himself. A.C.H. also needed play therapy to work through symptoms of

depression. M.E.S. testified that A.C.H. improved after play therapy, and she

further testified that his “social skills started developing a lot more in August

[2010] when he had no more visits with his biological parents.” She also testified

that neither child asked for their parents or B.W. after the parental visitations

stopped and that both children improved once the visitations stopped.

M.E.S. testified that C.L.W. seemed on track with his speech and

occupational development. She further testified that C.L.W. needs a lot of

attention due to his age and that he seeks negative attention by getting into

trouble.

M.E.S. testified that she does not intend to adopt the children but that they

may remain in her home as long as necessary for the Department to find an

adoptive family. She also testified that there is nothing about the children that

will hinder adoption. M.E.S. testified that she believes it is in the children’s best

interest to remain in a stable, structured environment and that she is concerned

that the children would otherwise regress.

Jeff Flowers

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 Jeff Flowers is the children’s child advocate volunteer. He testified that his

observations of A.C.H.’s developmental delays are consistent with those of

M.E.S. Flowers believes that A.C.H. still has room for improvement but that he is

not as withdrawn as he was in the beginning. Based on his review of the case

file and his interactions and observations of the children during the case, Flowers

testified that he thinks termination of parental rights and subsequent adoption is

best for the children. The parents did not make any progress toward completing

their services before being incarcerated, and Flowers testified that their

incarcerations present significant unknowns for the future. Further, Flowers

testified that the parents had not shown an ability to provide the children with

stability and that he does not believe the children would be harmed by not having

future contact with their parents.

Darlynn Bruton

Darlynn Bruton testified that she is a licensed chemical dependency

counselor and that she became familiar with Mother through her participation in

the H.O.P.E. In Jail program. Bruton testified that Mother successfully completed

the program and that she had progressed from a “fair” outlook at the beginning to

a “very good” outlook by the end of the program. Bruton testified that, in her

opinion, Mother had overcome her “denial mechanism” concerning her drug use,

had gained insight into what her drug addiction had done to her, and had started

to see how her drug use affected her in the long term. She and Mother spent

time discussing relapse prevention and developing a plan for regular meeting

14
attendance to avoid future drug use. Bruton testified that Mother recognized the

need to take action on her own but to also rely on B.W. and “healthy” friends in

the future. Mother had progressed to the point that she began serving as a peer

mentor to others in the program. She also testified that she believed the

possibility of losing her children was one of Mother’s primary motivations for

succeeding in the program, that Mother will need additional time in the real world

to relearn her behaviors and avoid future drug use, and that she has the tools

and motivation to succeed.

B.W.

B.W. is Mother’s grandfather. He testified that he had seen a very positive

change in Mother since she started the H.O.P.E. In Jail program; he noticed a

distinct difference in her ability to communicate and to have meaningful

conversations.

B.W. testified that he has a very good relationship with the children. He

agreed that the Department had initially discussed placing the children with him

and that he had expressed reservation because he is almost eighty years’ old.

However, B.W. denied telling the Department that he definitely would not take

care of the children and said that it would be possible for him and his wife to care

for the children in their home. He continued with some of the weekly visitations

with the children, even after Mother and Father were incarcerated, and he had

also attended each visit with Mother before her incarceration. Because he

believed he and other family members were available to care for the children,

15
B.W. testified that he did not believe termination of Mother’s and Father’s

parental rights was in the children’s best interest.

B. Trial Court’s Judgment

After the trial, the trial court signed a judgment terminating Mother’s and

Father’s parental rights to the children. The trial court found that termination of

Mother’s and Father’s parental rights to the children was in the children’s best

interest, that Mother and Father had knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endangered their physical

or emotional well-being, and that Mother and Father had engaged in conduct or

knowingly placed the children with persons who engaged in conduct which

endangered their physical or emotional well-being. The trial court additionally

found that Father had knowingly engaged in criminal conduct that had resulted in

his conviction for an offense, confinement or imprisonment, and inability to care

for the children for not less than two years from the date of filing the petition.

This appeal followed.

III. Standard of Review6

6
Neither Father nor Mother clarify whether they challenge the legal or
factual sufficiency of the evidence, and they each have language in their briefs
that arguably challenges the sufficiency of the evidence on both grounds. Thus,
we review both the legal and factual sufficiency of the evidence to support the
trial court’s findings.

16
 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 State seeks not just to limit parental rights

but to erase 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) (West 2008); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of the

parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, no pet.).

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. Tex. Fam. Code Ann. § 161.001 (West Supp.

2011); 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

17
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort

Worth 2000, pet. denied) (op. on reh’g).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a). 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). Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent

and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243

S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and

modification).

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

proven. 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

18
reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

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

parent violated subsections (D), (E), or (Q) of section 161.001(1) and that the

termination of the parent-child relationship would be in the best interest of the

child. Tex. Fam. Code Ann. § 161.001; In re 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.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. In re J.P.B.,

180 S.W.3d 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.

IV. Endangerment

Father argues in part of his first issue that there is insufficient evidence to

support the trial court’s endangerment findings, and he asserts in his second

issue that termination of his parental rights would violate his rights to due process

19
because the termination cannot be based solely on his temporary incarceration.

Mother has not challenged the trial court’s endangerment findings.

A. Applicable Law

The trial court determined that Father knowingly placed or knowingly

allowed the children to remain in conditions or surroundings which endangered

their physical or emotional well-being and engaged in conduct or knowingly

placed the children with persons who engaged in conduct that endangered their

physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D),

(E). Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,

439 (Tex. App.—San Antonio 2007, no pet.); In re J.T.G., 121 S.W.3d 117, 126

(Tex. App.—Fort Worth 2003, no pet.).

“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727

S.W.2d at 533; J.T.G., 121 S.W.3d at 125. Under subsection (D), it is necessary

to examine evidence related to the environment of the children to determine if the

environment was the source of endangerment to the children’s physical or

emotional well-being. J.T.G., 121 S.W.3d at 125. Conduct of a parent in the

home can create an environment that endangers the physical and emotional

well-being of a child. In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth

1995, no writ). For example, abusive or violent conduct by a parent or other

resident of a child’s home may produce an environment that endangers the

physical or emotional well-being of a child. See id. at 776–77; Ziegler v. Tarrant

20
Cnty. Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ

ref’d n.r.e.). Parental and caregiver illegal drug use and drug-related criminal

activity likewise supports the conclusion that the children’s surroundings

endanger their physical or emotional well-being. See In re S.D., 980 S.W.2d

758, 763 (Tex. App.—San Antonio 1998, pet. denied).

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

the parent’s conduct, including acts, omissions, or failures to act. See J.T.G.,

121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,

termination under (E) must be based on more than a single act or omission; the

statute requires a voluntary, deliberate, and conscious course of conduct by the

parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann. § 161.001(1)(E). It

is not necessary, however, 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).

Although imprisonment alone does not constitute a continuing course of

conduct that endangers the physical or emotional well-being of a child, it is a

factor that we may properly consider on the issue of endangerment. Boyd, 727

S.W.2d at 533–34; In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth

2007, no pet.). The State is not required to show that incarceration was a result

21
of a course of conduct endangering the child; it must show only that incarceration

was part of such a course of conduct. Boyd, 727 S.W.2d at 533–34. When

incarceration affects the parent’s ability to care for his child, to provide safe living

conditions, or to ensure her safety and well-being, then such incarceration can be

a part of a course of continuing conduct. See M.R., 243 S.W.3d at 819. Even

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.

B. Analysis

Father asserts that there is no evidence he used drugs in front of the

children and that the initial notice of removal form listed only Mother’s drug use

as the immediate danger. Father also argues that he never intended to abandon

the children before, during, or after his incarceration and contends that

termination of his parental rights would violate his right to due process because

his incarceration was only a temporary setback, not a permanent abandonment.

While there is no evidence that Father used drugs in the children’s

presence, that he physically abused the children, or that he intended to

permanently abandon the children, there is sufficient evidence to support the trial

court’s subsection (D) and (E) findings. Mother told Gilley that others living in the

Prelude Drive house with her, Father, and the children had used marijuana; had

kept drug paraphernalia in the house; and had sold methamphetamines from the

house. Mother also admitted to Gilley that she and Father had bad

22
methamphetamine habits. See S.D., 980 S.W.2d at 763 (holding mother’s drug

use and drug-related criminal activity supported trial court’s endangerment

finding). Moreover, Father was incarcerated at the time of the termination trial

and had also been incarcerated in September 2009 when the Department

received the initial negligent supervision referral. Father also had pleaded guilty

or nolo contendere over an eleven-year period to assault, drug possession, theft

(three times), criminal mischief, and evading arrest or detention. See M.R., 243

S.W.3d at 819 (noting that Father had been incarcerated for twenty-six of child’s

thirty-six month life, that incarceration prevented Father from “funding better

living conditions and financially supporting” child, and that Father’s “continued

criminality had contributed to the dangerous environment in which [the child] had

lived”).

In addition, although some of it is conflicting, there is evidence that Father

physically abused Mother, sometimes in front of the children. Father admitted to

throwing a brick at Mother on one occasion because she was trying to hit him

with her truck and to pouring gasoline on Mother’s truck during a separate

argument. And Mother reported in March 2010 that Father had broken her nose

after a visitation. See id. (holding that evidence of exposing a child to domestic

violence supported endangerment finding). Thus, the trial court’s findings under

subsections (D) and (E) of section 161.001 are not based solely on Father’s

temporary incarceration but are supported by his history of drug use, criminal

activity, and domestic violence. Applying the appropriate standards of review, we

23
hold that legally and factually sufficient evidence supports the trial court’s findings

under section 161.001(1)(D) and (E).7 We therefore overrule the first part of

Father’s first issue and all of his second issue.

V. Best Interest

Father argues in the remainder of his first issue and Mother argues in her

second issue that the evidence is insufficient to support the trial court’s finding

that termination of their parental rights is in the children’s best interest.

A. Applicable Law

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;

7
Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is sufficient to support a judgment of termination. In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). Thus, we
need not address the trial court’s section 161.001(q) finding. See id.; see also
Tex. R. App. P. 47.1, 47.4.

24
(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

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

25
 (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; 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

26
presence of scant evidence relevant to each factor will not support such a

finding. Id.

B. Analysis

Father points to evidence that he voluntarily requested anger management

classes, that he and the children have a strong bond, that his interaction with the

children at visitations was always appropriate, that he sent the children a letter

from jail, and that witnesses had reported that Father was a very loving, attentive

father at all times. Father also notes that there was no testimony that he was

physically abusive toward the children at any time and that his sentence was set

to expire within two months of the termination trial. There is also evidence that

the children asked for Father after visitations with Mother. Mother argues that

termination is not in the children’s best interest because she and the children

have a strong bond, she interacted appropriately with the children in all

visitations, she missed only one visitation before her incarceration, the

Department planned to close the case after the initial September 2009 referral

but for the December domestic violence allegation, she completed the H.O.P.E.

In Jail program, and the Department did not yet have any adoptive family lined up

for the children.

While there is evidence favorable to Mother and Father, there is also

evidence supporting the trial court’s determination that termination of Mother’s

and Father’s parental rights is in the children’s best interest. At the time of

removal in February 2010, C.L.W. was two, and A.C.H. was three; they each had

27
lice and needed dental work because of visible tooth decay. The children also

had splotchy coloring on their skin and seemed to need more nutritional foods.

The children showed “very big improvement” after taking vitamins and eating

healthier foods. Also, neither child asked for their parents or B.W. after the

parental visitations stopped, and both improved once the visitations stopped.

C.L.W.’s speech and occupational development seemed appropriate for his age,

but he sought negative attention. A.C.H. was behind developmentally, had

shown signs of depression, and was attending occupational therapy and speech

therapy. A.C.H. improved over time, but his ability to articulate is still poor.

A.C.H.’s social skills improved most after visitations with his parents stopped.

See In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011, no pet.)

(holding sufficient evidence supported best interest finding because the children’s

emotional and physical needs “would be better served by being with parents

more like the foster mother”; because the children had tooth deterioration,

required speech therapy, exhibited social and emotional developmental delay;

and because of parents’ continued drug use).

There is also evidence of multiple domestic violence incidents between

Mother and Father, sometimes with the children present. Father admitted

throwing a brick at Mother and said the brick hit Mother in her side, and he

claimed to have done so because Mother was trying to run into him with her

truck. Father also admitted pouring gasoline on Mother’s truck during a later

argument, and Mother reported in March 2010 that Father had broken her nose.

28
There is conflicting evidence concerning the December 2009 incident, but a

witness called the police after seeing an altercation between Mother and Father

in the street and noticing that both children were present. Mother and Father

also have a history of marijuana and methamphetamine use. Mother admitted

continued drug use after the children’s removal. There is also evidence that

methamphetamine was sold from the Prelude Drive house while the children

lived there. See M.R., 243 S.W.3d at 820 (holding sufficient evidence supported

best interest finding because, among other things, children had been exposed to

domestic violence and drug abuse).

Mother and Father initially expressed eagerness to work their services and

regain possession of their children, but Mother and Father had not submitted to

drug assessments or worked any of their services by May 2010. Father did

submit to a drug assessment in May 2010, but he was incarcerated shortly

thereafter. Collins acknowledged that parents often take six months to start

working their services, but she did not comment on whether those parents

successfully defend suits to terminate their parental rights. See In re Y.G., No.

07-11-00349-CV, 2012 WL 652466, at *6–7 (Tex. App.—Amarillo Feb. 29, 2012,

no pet.) (mem. op.) (holding sufficient evidence supported best interest

determination because, among other things, the father had not completed any of

his services and had continued using drugs after the children’s removal).

Mother successfully completed the H.O.P.E. In Jail program after being

ordered into the program, and she enjoyed the program and served as a peer

29
mentor. Bruton testified that she and Mother had discussed relapse prevention

and a plan for regular meeting attendance to avoid future drug use. Despite

Mother’s completion of the in-jail drug program, Jones testified that termination of

Mother’s and Father’s parental rights is in the children’s best interest because the

children need stability and a forever home and because Mother and Father

cannot provide that for the children. Jones also testified that Mother’s release

from incarceration during the trial did not affect her opinion because Mother still

had “a ways to go” with the services she did not work before going to jail. See In

re T.T.F., 331 S.W.3d 461, 488 (Tex. App.—Fort Worth 2010, no pet.)

(addressing best interest and stating that “[t]he evidence of [the mother]’s

improved parenting skills and stability must be balanced against the relative

brevity of her stability in light of her age”).

Several witnesses expressed their opinions that Mother and Father have

good relationships with the children. Overstreet testified that she believed Father

was a “really good dad,” that he was “always very attentive to the kids,” and that

he “just seemed like any other dad with his children.” Overstreet similarly

testified that Mother is a good and loving mom, and the foster mother testified

that Mother attended the doctor’s appointment and seemed appropriately

concerned for C.L.W. when C.L.W. had tubes placed in his ears. But Overstreet

acknowledged that good parents do not use methamphetamines, engage in

domestic violence in front of their children, or commit criminal acts that result in

incarceration.

30
 Also, Mother and Father have not provided a stable home for the children.

Father was incarcerated at the time of the initial referral for violating his

probation, and he had pleaded guilty or nolo contendere over an eleven-year

period to seven different criminal offenses. Mother did not yet have a criminal

record in September 2009, but she was charged with possession of a controlled

substance in April 2010 and placed on probation, and she had a pending

indictment for allegedly falsifying a government document at the time of the

termination trial. In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—Houston [14th

Dist.] 2005, no pet.) (stating that the father’s incarceration and pattern of criminal

and violent conduct made it likely that he would face incarceration again in the

future).

Gilley testified that none of the placement options proposed by Mother

were acceptable. The foster mother testified that she does not intend to adopt

the children but that they may remain in her home as long as necessary for the

Department to find an adoptive family. She also testified that she does not think

finding an adoptive home will be difficult, that it is in the children’s best interest to

remain in a stable, structured environment, and that she is concerned that the

children would otherwise regress.

Applying the appropriate standards of review and considering the

applicable best-interest factors listed above, we hold that legally and factually

sufficient evidence supports the trial court’s findings that termination of Mother’s

31
and Father’s parental rights is in the children’s best interest. We therefore

overrule the remainder of Father’s first issue and all of Mother’s second issue.

VI. Mother’s Remaining Issues

Mother argues in her third issue that the trial court abused its discretion by

denying her oral motion for continuance and her written motion to extend the

statutory dismissal date. She argues in her first issue that the trial court violated

her due process rights by failing to release her from a bench warrant.

A. Denial of Mother’s Motions for Continuance and for Extension of
Statutory Dismissal Date

In her third issue, Mother complains about the trial court’s denial of her oral

motion for continuance and her written motion for an extension of the statutory

dismissal date.

1. Oral Motion for Continuance

A motion for continuance shall not be granted except for sufficient cause

supported by an affidavit, through consent of the parties, or by operation of law.

Tex. R. Civ. P. 251; see In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.—Houston

[14th Dist.] 2002, no pet.). Here, Mother’s counsel made an oral motion for

continuance just before the termination trial began on January 10, 2011.

However, the record does not contain a written motion for continuance or an

affidavit. 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 Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); E.L.T., 93 S.W.3d at

32
375. Because Mother did not comply with rule 251, the trial court did not abuse

its discretion by denying her oral motion for continuance.8 See Villegas, 711

S.W.2d at 626; see also In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at

*8 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.); In re T.D.N., No.

14-07-00387-CV, 2008 WL 2574055, at *1 (Tex. App.—Houston [14th Dist.] June

26, 2008, no pet.) (mem. op.) (holding trial court did not abuse its discretion by

denying oral motion for continuance because appellant did not comply with rule

of civil procedure 251). Accordingly, we overrule this portion of Mother’s third

issue.

2. Motion to Extend Statutory Dismissal Date

A trial court must dismiss a suit affecting the parent-child relationship if it

has not rendered a final order or granted an extension on the first Monday after

the first anniversary of the date the court rendered a temporary order appointing

the Department as temporary managing conservator. Tex. Fam. Code Ann.

§ 263.401(a) (West 2008). The trial court may grant an extension of up to 180

days if it finds that “extraordinary circumstances necessitate the child remaining

in the temporary managing conservatorship of the department and that

continuing the appointment of the department as temporary managing

conservator is in the best interest of the child.” Id. § 263.401(b). Because an

8
Moreover, Mother based her oral motion for continuance on the absence
of her H.O.P.E. In Jail counselor. We note, however, that Mother’s counselor
testified during the second day of the trial.

33
extension of the dismissal date is similar to a continuance and section 263.401(b)

does not specify which appellate standard of review should apply, we apply the

abuse of discretion standard. T.T.F., 331 S.W.3d at 476.

Here, Mother’s counsel “reurged” Mother’s motion to extend the statutory

dismissal date on the first morning of trial.9 Mother argued that she was

scheduled to be released from jail the next day, that she had appointments for

life skills classes and a psychological assessment within a week, and that she

had successfully completed the services provided to her in jail. The Department

opposed Mother’s motion because of Mother’s pending criminal case in Tarrant

County, arguing that the criminal charge could result in additional incarceration.

The children’s attorney ad litem also opposed the extension, arguing that the

conduct that resulted in Mother’s incarceration occurred after the children were

removed by the Department and that Mother did not take advantage of the

services offered to her before her incarceration. The trial court denied the

motion. Particularly given Mother’s failure to work the services offered to her

before her incarceration, we cannot say that the trial court abused its discretion

by denying an extension of the statutory dismissal date so that Mother could

have more time to complete her services. See Shaw v. Tex. Dep’t of Family &

Protective Servs., No. 03-05-00682-CV, 2006 WL 2504460, at *8 (Tex. App.—

Austin Aug. 31, 2006, pet. denied) (mem. op.) (holding mother did not show that

9
Nothing in the appellate record shows that the motion for extension had
previously been presented to and ruled on by the trial court.

34
needing more time after failing to make progress on the service plan for eight

months amounted to extraordinary circumstances). We therefore overrule the

remainder of Mother’s third issue.

B. Bench Warrant

Mother argues in her first issue that the trial court “denied [her] due

process rights by failing to release [her] from the bench warrant[,] preventing

Mother’s release from Tarrant County Jail.” The record reflects that the trial court

granted Mother’s request for a bench warrant so that Mother could be brought

from Johnson County to Tarrant County to attend trial beginning January 10,

2011, that Mother was scheduled to be released from Johnson County at

midnight January 10, 2011, but that Mother was still in the custody of Tarrant

County (but present at trial) on the morning of January 12, 2011.10 In that regard,

two portions of the record are relevant to Mother’s first issue. First, the following

exchange occurred between Mother’s counsel and the trial court before trial

resumed on the morning of January 12:

THE COURT: I think, first of all, that we have [Mother’s counsel]
who wishes to make a comment to the court or a statement.

[Mother’s counsel]: Just for the record, my client appears here
today. She’s still in the custody of the Tarrant County jail and she
was transported over by the Tarrant County Sheriff’s department.
She was on a bench warrant out of Johnson County to Tarrant
County. Her sentence and her terms for Johnson County ended at

10
There was apparently a recess in the trial from the end of the day on
January 10 until the morning of January 12. The reporter’s record does not
contain any proceedings from January 11.

35
 midnight on January 10th, and she was not released. I did speak
with the Johnson County Sheriff’s Department and they had
indicated that they had sent the order to release her, and when I
spoke with the Tarrant County Sheriff’s Department, they had
indicated that she was being held based upon the bench warrant out
of this court, and I know that we spoke off the record and I just
wanted to clarify that she shouldn’t be incarcerated today and I’m
not sure why she is appearing here today. It seems to me now that
she’s served a second day in jail in Tarrant County without cause
and without justification, and I’d like to make sure that’s on the
record and the Court can make clarifications about that.

THE COURT: All I can say is that I wanted to insure that rather than
being in jail in Johnson County, she was available, your client was
available, to you, and I made it very clear if Johnson County
released her, she was released, and I don’t know really what
happened with the jail, but that was — I did have her benched over
here to be available to you for this trial, but I made it clear to my staff
that, you know, Johnson County has authority in terms of her
incarceration, not me. I just wanted her here for this trial.

Second, the following exchange occurred just before the lunch recess on

January 12:

THE COURT: [Mother’s Counsel], I’ve done a little research about
what we can do about releasing your client from incarceration, and I
can send her right now to be released. She’ll go to Johnson County
and probably not be able to be here for the rest of this hearing today.
It’s your option. I’m more than willing to release her to be
transported downtown to then be transported to Johnson County,
but I’m reconvening at two o’clock. I have to attend a meeting
downtown right now, so I’m going to have to recess for pretty much
an hour, but I’ll reconvene at two o’clock, so I need to know right
now if you want me to have her transported or if you’d like her to
remain here.

[Mother’s Counsel]: If I could have three minutes with my client,
obviously, if we could have done it yesterday, it would —

THE COURT: All right.

36
 (Off-the-record discussion here.)

[Mother’s Counsel]: Your Honor, do we have the rest of the
afternoon from two to five today, or is there another setting?

THE COURT: That’s my plan, yes. I think that’s my plan.

(Off-the-record discussion here.)

[Mother’s Counsel]: My client said that she’d like to be transported
for release. On the record, my client has indicated that she does
want to be released in accordance with her original release date, so
she’ll be transported down to the Tarrant County jail to begin that
process, is that correct?

THE COURT: That’s correct. And you understand that we’d have to
proceed without her this afternoon?

[Mother’s Counsel]: I understand that, Your Honor. I know that the
State has a couple more witnesses and there are some other
witnesses, so it’s my hope she’ll be returning before the completion
of the trial.

[Department’s Counsel]: I’d just like it to be clear, then, would it be
[Mother’s Counsel]’s intent then to ask for a continuance in the event
that her client doesn’t appear and we’re at a point where she had no
other witnesses?

[Mother’s Counsel]: No, Your Honor. We would waive that, and we
would not be asking for a continuance in the event she doesn’t
return before the completion of the trial.

THE COURT: All right. I’ll release her for transfer, and we'll
reconvene at two o’clock.

This and other courts review trial court rulings on issues relating to bench

warrants for an abuse of discretion. In re Z.L.T., 124 S.W.3d 163, 165 (Tex.

2003); In re D.D.J., 136 S.W.3d 305, 311–14 (Tex. App.—Fort Worth 2004, no

pet.). To determine whether a trial court abused its discretion, we must decide

37
whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was 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). An appellate court cannot conclude that a trial court

abused its discretion merely because the appellate court would have ruled

differently in the same circumstances. E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

Mother argues that “[s]eemingly, the Court required [Mother] to choose her

freedom, although wrongly restrained, or her presence at her trial on the

termination of her parental rights.” To the extent Mother contends the trial court

should have continued the case until she could return from Johnson County after

her release from incarceration, the trial court did not abuse its discretion because

Mother expressly waived any continuance based on her absence. Otherwise,

Mother does not specify in her appellate brief what she contends the trial court

should have done differently under these circumstances. Thus, Mother has not

shown that the trial court abused its discretion, and we overrule her first issue.

VII. Conclusion

Having overruled each of Father’s and Mother’s issues, we affirm the trial

court’s judgment.

ANNE GARDNER
JUSTICE

38
PANEL: GARDNER, MCCOY, and GABRIEL, JJ.

DELIVERED: April 19, 2012

39