in the Interest of G.A.H. and K.D.B., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00015-CV

IN THE INTEREST OF G.A.H. AND
K.D.B., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1
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Appellant G.H. (Father)2 appeals the termination of his parental rights to

G.A.H. (Ginny) and K.D.B. (Katie). We will affirm.

I. Background

In September 2009, the Department of Family and Protective Services (the

Department) received a referral that Ginny and Katie were in danger from

neglectful supervision. The referral alleged that the children’s mother would

1
See Tex. R. App. P. 47.4.
2
We use aliases for the children and the parents and foster parents
throughout this opinion. See Tex. R. App. P. 9.8(b)(2).
leave them with family members and would not pick them up for as long as a

month. In December 2009, the Department took Ginny and Katie from their

mother and placed them in foster care with the Browns. Mr. Brown is the brother

of the children’s maternal grandmother. Father was aware of CPS’s involvement

and signed a release allowing the children to be placed with the Browns.

Ginny and Katie’s case was assigned to conservatorship worker Melanie

Scott. Scott could not locate Father. The only information the children’s mother

could provide was that Father was living ―in Kansas City somewhere.‖ 3 Scott

eventually contacted Father’s mother on March 3, 2010, who also could not

provide a contact address or phone number. Father’s mother told Scott that

Father ―was just kind of living here and there, that he didn’t have a stable

environment and there was no way to get ahold of him.‖

In August of 2010, Father finally contacted Scott. Father admitted that he

had received Scott’s messages through his mother but had not attempted to

contact Scott or anyone at CPS because he did not have stable housing or

employment. At the time he called Scott, Father had been employed for a

month. Scott obtained Father’s address and mailed him his service plan on

August 23, 2010. On September 14, 2010, Father and Scott spoke again over

the phone. Father told Scott he had received the service plan, and they

3
The parental rights of the girls’ mother were terminated earlier in this case
by an interlocutory order on October 27, 2010. The mother has not appealed the
termination of her rights and is not a party to this appeal.

2
discussed providers where Father could engage in services. Scott gave Father

the phone numbers of various resources and told him that it was his

responsibility to complete the services and fax or e-mail her documentation.

During their August phone call, Father expressed an interest in visiting his

daughters on Ginny’s birthday, and Scott offered to arrange visitation for him if he

came to Texas. Father also told Scott he was going to mail Ginny a birthday

present. When they spoke again in September, Father told Scott that his sister

was getting married and that the wedding would ―interfere‖ with his plans to visit

his children. He never visited the children or sent any presents. Father never

wrote or called his daughters, despite being told by Scott that he could.

Trial was held on December 7, 2010. Father appeared by counsel but not

in person. Father’s counsel stated that she was not aware that Father would not

be attending the trial until the day before when he faxed a doctor’s note

explaining that he was on prescription medication and unable to drive.

At trial, Scott testified to the trouble in locating and communicating with

Father. She further stated that she believed it was in the children’s best interest

for Father’s parental rights to be terminated. Scott said that CPS’s permanent

plan for the children was for them to be adopted by their foster parents, the

Browns.

Mr. Brown, the only other witness at trial, testified that he spoke to Father

once in December 2009 and once in February 2010 regarding blood work to

determine whether he was Katie’s father. Brown said that Father has made no

3
attempt to visit the girls while they were in the Browns’ care and that he did not

provide any financial support or supplies to help care for the children. He

testified that the girls call him ―dad‖ and Mrs. Brown ―mom‖ and that they would

love to adopt the children.

The trial court found that Father’s parental rights should be terminated

under section 161.001 of the family code and ordered that managing

conservatorship continue with the Department. This appeal followed.

II. Standard of Review

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 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

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favor of the parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161,

167 (Tex. App.—Fort Worth 2008, no pet.).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2010); § 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).

III. Discussion

Father appeals the termination of his parental rights in six issues. The

Department argues that Father’s first, fourth, fifth, and sixth issues have been

forfeited because he did not file a statement of points as required by the family

code. See Tex. Fam. Code Ann. § 263.405 (West 2008). Father admits that he

never filed a statement of points, but claims in his second issue that the failure

was the result of ineffective assistance by his trial counsel.4 We therefore

address Father’s second issue first.

4
A claim of ineffective assistance of counsel in a parental rights termination
case may be brought on appeal despite a failure to file a statement of points. In
re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009).

5
A. Ineffective Assistance of Counsel

To prove ineffective assistance, the appellant must show (1) that counsel’s

performance was deficient and (2) that the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984); see J.O.A., 283 S.W.3d at 342 (applying Strickland to a parental rights

termination case). ―This requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.‖

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. ―To make this showing, [Father]

would be required to demonstrate that he could prevail on appeal on [the] issues

raised in his late-filed statement of points.‖5 In re B.G., 317 S.W.3d 250, 256

(Tex. 2010); see also J.O.A., 283 S.W.3d at 344 (noting that appellant father

must show that ―had counsel properly preserved error by filing the statement of

points, the court of appeals would have reversed the termination‖ based on the

issues he would have raised in his statement of points). If Father’s trial counsel

could not have filed any meritorious claim on appeal, a failure to file a statement

of points ―would not necessarily indicate deficient representation.‖ Robinson v.

5
Father never filed a statement of points, even an untimely one. However,
he argued in his first amended motion for new trial and in his first, fourth, fifth,
and sixth issues on appeal that the evidence was legally and factually insufficient
to support the termination of his rights and that the denial of his motion for a
continuance and the denial of his motion for an extension of the dismissal date
precluded him from presenting evidence necessary for his defense. Because he
does not claim that he would have raised any other issues in his statement of
points besides those he attempts to raise now on appeal, we will assume for the
purposes of our evaluation under Strickland that these would be the issues he
would have raised.

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Dep’t of Family & Protective Servs., 317 S.W.3d 410, 411 (Tex. App.—Houston

[1st Dist.] 2010, no pet.). Thus, in order to evaluate Father’s claim of ineffective

assistance of counsel, we review the merit of his other issues. See J.O.A., 283

S.W.3d at 344–47 (evaluating appellant father’s issues on appeal under the

second prong of the Strickland test).

1. The Motions for Continuance and Extension of Dismissal Date

In his first issue, Father argues that the trial court abused its discretion by

denying his motion for continuance and his motion for an extension of the

dismissal date. To determine whether a trial court abused its discretion, we must

decide 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.

On December 1, 2010, six days before trial, Father filed a motion for

continuance. Father claimed only that he ―need[ed] time to complete services

and be part of his children’s li[ves]‖ and that the continuance ―is not sought solely

for delay but that justice may be done.‖ Texas Rule of Civil Procedure 251 states

that no continuance will be granted ―except for sufficient cause supported by

7
affidavit, or by consent of the parties, or by operation of law.‖ Tex. R. Civ. P.

251. A trial court is presumed to have correctly exercised its discretion when it

denies a motion that does not comply with the requirements of Rule 251.

Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).

Father’s motion for continuance was not supported by affidavit, and he

does not argue that the other parties consented to a continuance or that under

some other operation of law a continuance was required. The trial court did not

abuse its discretion in denying Father’s motion for continuance. See In re

C.P.V.Y., 315 S.W.3d 260, 270 (Tex. App.—Beaumont 2010, no pet.) (presuming

that the trial court did not abuse its discretion by denying a motion for

continuance that was not supported by affidavit); In re Z.C., 280 S.W.3d 470, 478

(Tex. App.—Fort Worth 2009, pet. struck) (holding that because a motion for

continuance was unsworn and unsupported by affidavit, ―under the plain

language of the rule, the trial court was without discretion to grant it‖).

Also on December 1, 2010, Father filed a motion requesting an extension

of the dismissal date. Section 263.401 of the family code requires that the trial

court dismiss the suit affecting the parent-child relationship after one year unless

trial has commenced or the court has granted an extension. Tex. Fam. Code

Ann. § 263.401(a) (West Supp. 2010). Section 263.401(b) also requires the

moving party to prove (1) ―that extraordinary circumstances necessitate the child

remaining in the temporary managing conservatorship of the department‖ and (2)

that continuing the appointment of the department as temporary managing

8
conservator is in the best interest of the child. Id. § 263.401(b). The dismissal

date for this case was set for December 27, 2010. In his motion, Father argued

only that ―[t]he circumstances of the case and the needs of the children are such

that it would not be in the best interest of the children to dismiss the suit or to

render final orders‖ and that an extension would be ―in the best interest of the

children.‖

Father did not testify at the hearing and there is no affidavit in the record

demonstrating any extraordinary circumstances that would support an extension.

See In re D.K., No. 02-09-00117-CV, 2009 WL 5227514, at *2 (Tex. App.—Fort

Worth Dec. 31, 2009, no pet.) (mem. op.) (holding that trial court did not abuse its

discretion by denying appellant’s motion for extension when she presented no

evidence in support); see also In re Z.J.C., No. 10-09-00026-CV, 2009 WL

2179976, at *5 (Tex. App.—Waco July 22, 2009, no pet.) (noting that the

appellant could not show harm by court’s denial of her motion for continuance

because she ―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‖). At the hearing on the motion, Father’s trial counsel stated that the

extension was needed so that Father could complete his services. The

Department objected to an extension because Father had more than ample

opportunity to begin his services. Father’s attorney claimed that all of the

parenting classes offered in Father’s vicinity were booked. This does not explain

9
his failure to complete any of his other services, including drug assessment,

anger management courses, psychological evaluation, or counseling. ―We have

repeatedly held that when a parent, through his or her own choices, fails to

comply with a service plan and then at the time of the termination trial requests a

continuance or an extension of the statutory dismissal deadline in order to

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

continuance or extension.‖ In re K.P., No. 02-09-00028-CV, 2009 WL 2462564,

at *4 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (mem. op.). Father failed to

prove any extraordinary circumstances that would warrant an extension. The

trial court did not abuse its discretion in denying Father’s motion for an extension.

Father would not prevail on his first issue.

2. Sufficiency of the Evidence

In his fourth, fifth, and sixth issues, Father complains that the evidence

presented at trial is legally and factually insufficient to support the trial court’s

termination of his parental rights under section 161.001 of the family code.

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; 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). In

10
this case, the Department alleged proof under subsections (B) and (N) of section

161.001 of the family code as to Father.6 Section (B) states that the court may

order termination of the parent-child relationship if the court finds that the parent

has ―voluntarily left the child alone or in the possession of another not the parent

without expressing an intent to return, without providing for the adequate support

of the child, and remained away for a period of at least three months.‖ Tex. Fam.

Code Ann. § 161.001(1)(B) (West 2008). Section (N) allows for termination if the

parent has

constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of Family
and Protective Services or an authorized agency for not less than six
months, and:
(i) the department or authorized agency has made reasonable
efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained
significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the
child with a safe environment.

Id. § 161.001(1)(N).

In reviewing the evidence for legal sufficiency in parental termination

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

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

6
In his fifth issue, Father claims that the trial court found that Father
―voluntarily left the child[ren] alone or in the possession of another without
providing adequate support of the child[ren] and remained away for a period of at
least six months.‖ Tex. Fam. Code Ann. § 161.001(1)(C). However, it does not
appear that the trial court made such a finding or terminated Father’s parental
rights under this subsection. We need not address Father’s fifth issue.

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proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the

evidence in the light most favorable to the finding and judgment. Id. This means

that we must assume that the factfinder resolved any disputed facts in favor of its

finding if a reasonable factfinder could have done so. Id. We must also

disregard all evidence that a reasonable factfinder could have disbelieved. Id.

We must consider, however, undisputed evidence even if it is contrary to the

finding. Id. That is, we must consider evidence favorable to termination if a

reasonable factfinder could, and disregard contrary evidence unless a

reasonable factfinder could not. Id.

We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness-credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573–74. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as they

are not unreasonable. Id. at 573.

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 Father violated subsections (B) or (N) of section 161.001(1). Tex. Fam.

Code Ann. § 161.001; 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

12
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.

In his fourth issue, Father argues that there is legally and factually

insufficient evidence to support a finding that he left the children in the

possession of the Browns without expressing an intent to return.7 See Tex. Fam.

Code Ann. § 161.001(1)(B).

Brown testified that Father was aware that the Department had placed the

children with the Browns and that Father indicated that he wanted the children to

live with the Browns. Scott testified that Father was aware that the Department

had been trying to find him for months but Father chose not to contact the

Department. Father did express to Scott an interest in visiting his daughters on

Ginny’s birthday, but he later told Scott that a family wedding would prevent him

from travelling, and he never made any other plans to travel to Texas. He never

visited the children or sent any presents. Father never wrote or called his

daughters, despite being told by Scott that he could. When Father called the

Browns to request a blood test, he did not ask to speak to the children and said

nothing about wishing to see them. Mr. Brown testified that Father has not

shown any interest in seeing the children since they have been in the Browns’

7
Subsection (B) also requires evidence that Father did not provide ―for the
adequate support of the child, and remained away for a period of at least three
months,‖ see Tex. Fam. Code Ann. § 161.001(1)(B), but Father does not
challenge those findings in his argument on appeal.

13
care. Father never expressed to Mr. Brown an intent to return for his children.

Father never provided the Browns with financial support for his children.

There was no evidence that Father was interested in gaining custody of

the children, moving to Texas to be with the children, or bringing the girls to

Missouri. The evidence supports the trial court’s inherent finding that Father had

no plans for a permanent reunification with his children. One suggestion of a

single visit that was never followed through on is not an expression of an intent to

return. A factfinder could have reasonably formed a firm conviction that Father

voluntarily left the children in the Browns’ possession without expressing an

intent to return. We hold there is legally and factually sufficient evidence to

support termination under subsection (B). Father would not prevail on his fourth

issue.

Along with a best interest finding, a finding of only one ground alleged

under section 161.001(1) is necessary to support a judgment of termination. See

Tex. Fam. Code Ann. § 161.001. Thus, even if we were to hold that Father could

prevail under his sixth issue (that there was insufficient evidence to support

termination under subsection (N)), because the judgment could be supported

under subsection (B), we need not address Father’s sixth issue. See Tex. R.

App. P. 47.1; see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth

2007, no pet.); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no

pet.).

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 Having determined that Father would not have prevailed on any of the

issues he would have brought had he timely filed a statement of points, we hold

that Father failed to demonstrate that his trial counsel’s failure to file a statement

of points prejudiced his defense and deprived him of a fair trial. See Strickland,

466 U.S. at 687, 104 S. Ct. at 2064. We overrule Father’s second issue.

Because Father did not file a statement of issues, he has forfeited the

issues raised in his first, fourth, fifth, and sixth points. See Tex. Fam. Code Ann.

§ 263.405(i); In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010). We overrule those

issues.

B. Motion to Extend the Deadline to File a Statement of Points

In his third issue, Father argues that the trial court abused its discretion in

denying his motion to extend the deadline to file a statement of points.

The trial court signed the final order of termination on December 7, 2010.

Father filed his motion for new trial and notice of appeal on January 6, 2011. He

did not file a statement of points with his notice of appeal. On January 19, 2011,

Father filed an amended motion for new trial and a motion to extend the deadline

to file a statement of points, which the trial court denied.

A party wishing to appeal a termination order must file with the trial court a

statement of points on which the party intends to appeal within fifteen days from

the day the order was signed. Tex. Fam. Code Ann. § 263.405(b). A trial court

may grant a motion to extend the deadline to file a statement of points if the

movant shows good cause for his failure to timely file and the new deadline is

15
within thirty days of the termination order. Tex. R. Civ. P. 5; In re M.N., 262

S.W.3d 799, 803 (Tex. 2008). The motion itself was not filed within thirty days of

the termination order. The trial court did not abuse its discretion by denying the

late-filed motion. However, even if the trial court abused its discretion in denying

Father’s motion, Father cannot show harm because, as discussed above, Father

would not have prevailed on appeal. See Tex. R. App. P. 44.1(a). We overrule

Father’s third issue.

Conclusion

Having overruled Father’s six issues, we affirm the judgment of the trial

court.

LEE GABRIEL
JUSTICE

PANEL: McCOY, MEIER, and GABRIEL, JJ.

DELIVERED: October 6, 2011

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