in the Interest of C.H and A.H.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00170-CV
__________________

IN THE INTEREST OF C.H. AND A.H.

__________________________________________________________________

On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 17-09-11182-CV
__________________________________________________________________

MEMORANDUM OPINION

K.K. appeals the trial court’s order terminating her parental rights. In seven

issues, K.K. challenges the legal and factual sufficiency of the evidence supporting

the best interest finding, as well as the termination grounds specified in section

161.001(b)(1)(D), (E), (O), and (P), and complains that the trial court abused its

discretion by not allowing three witnesses to testify on K.K.’s behalf and not

granting additional time to place the children with family. See Tex. Fam. Code Ann.

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§ 161.001(b)(1)(D), (E), (O), (P), (b)(2). We affirm the trial court’s order terminating

K.K.’s parental rights.

BACKGROUND

On March 4, 2019, the trial court called the case for trial. K.K.’s counsel stated

that she was not ready to proceed with trial and asked for a reset, but counsel stated

that she was ready to proceed as to status documents. The Department called K.K.

to the stand, and she testified that she is the children’s mother and provided the

children’s dates of birth. The trial judge then stated, “As much as I hate to do it,

everybody announced ready and we started evidence in the matter, but I really think

we[’d] better recess. . . .” The trial court noted that K.K.’s counsel was not feeling

well and reset the case.

When the proceeding resumed on May 15, 2019, the trial court conducted a

hearing on K.K.’s motion for continuance, in which K.K. asserted that a home study

of the children’s maternal grandmother had been approved. K.K.’s counsel stated

that she had not seen a copy of the study, but requested time to obtain a copy and

then suggested that the case could “perhaps . . . proceed to mediation[.]” The attorney

for the children’s father, J.H., (who is not a party to this appeal) joined in the motion

and asserted that continuing the case would be in the children’s best interest. The

attorney for the Department argued that the case had been pending for twenty

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months, and that the motion for continuance had no verification or affidavit

regarding the source of the information about a home study of the maternal

grandmother, from whom the information came, or precisely what information

K.K.’s counsel had received. The Department’s counsel also asserted that the

Department was unaware of any approved home study for the maternal grandmother.

K.K.’s counsel called Department case worker Victoria Warmuth to testify at

the hearing. Warmuth testified that she had been in contact with the children’s

maternal grandmother, who resides in Florida, as well as the case worker in Florida.

Warmuth explained that she did not receive notice of a home study regarding the

maternal grandmother being approved while she was the case worker. Warmuth

testified that because the maternal grandmother’s own children had been removed

and she had been involved with “several people who have been physically violent

with her,” Warmuth had concerns about placing the children with her.

CPS conservatorship caseworker Brenda Lara testified that she is the current

caseworker for the children. Lara testified that as of the day before trial, the

Department had not received the results of the home study regarding the maternal

grandmother.

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 The Department’s supervisor Kimberly Rodgers-Porter1 also testified at the

hearing on the motion for continuance. Rodgers-Porter testified that the Department

had not received notice that a home study had been approved. According to Rodgers-

Porter, the study was “still pending.” Rodgers-Porter testified that she believed

moving forward with the trial was in the children’s best interest. Rodgers-Porter

testified that the allegation in K.K.’s motion for continuance regarding a relative

home study was untrue.

After Rodgers-Porter testified, K.K.’s counsel asked to call the maternal

grandmother and the Department’s supervisor in Florida by phone as witnesses,

which the trial court denied. K.K. then called CASA’s guardian ad litem, Susan

Munkres. Munkres testified that the Department was still awaiting a determination

regarding the maternal grandmother. Munkres also testified that the maternal

grandmother has “a history of at least 15 years of abusive relationships with men.”

The trial judge noted that the issue at trial would be whether parental rights should

be terminated and denied the motion for continuance.

When trial on the merits began, the Department called CPS investigator

Daniel Willbur to testify. Willbur explained that when the case was assigned to him,

the Department was concerned that the children’s father, J.H., had been using them

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Lara explained that Rodgers-Porter is her supervisor.
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“to make pornography[,]” and the FBI was investigating. Willbur testified that he

prepared the affidavit in support of removal. According to Willbur, K.K. was

incarcerated on a drug-related charge at that time, and she refused to tell Willbur

where the children were. Willbur explained that when he spoke with K.K., she stated

that she did not believe J.H. would have committed the crimes of which he was

accused.

K.K. testified that she stopped using drugs when she was pregnant with A.H.,

but she resumed using drugs in 2017 after J.H. was incarcerated. K.K. explained that

in 2017, she had lost everything and was living in her truck with the children.

According to K.K., the longest period of time she has held a job since the children’s

birth is six months. K.K. testified that in August 2017, she was arrested for

manufacturing and possession of methamphetamines, and she pleaded guilty and

received ten years of deferred adjudication community supervision. K.K. explained

that she was told that A.H. tested positive for methamphetamine. K.K. testified that

she was incarcerated when the Department became involved. K.K. also testified that

she was charged with criminal trespass in December 2017. K.K. explained that she

has been diagnosed with post-traumatic stress disorder, anxiety, and depression.

According to K.K., the children were in J.H.’s care when the FBI investigation

began. K.K. testified that if she had known about the pornography, she would not

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have left the children in J.H.’s care. K.K. agreed that she did not have possession of

the children for approximately six or seven months. K.K. explained that the services

she did for the Department have helped her. According to K.K., being with her is in

the children’s best interest.

Munkres testified that she has visited the children at least monthly since the

case began. According to Munkres, the children were initially tearful, frightened,

and afraid of J.H., but they are now “healthy and thriving” and can express their

feelings. Munkres explained that A.H. reported that J.H. had rubbed his sexual organ

against C.H. Munkres also testified that A.H. reported that he had told K.K. what

J.H. was doing, and K.K. told A.H. to tell his father no and said “he’s not supposed

to do that.” Munkres testified that she believes K.K. “failed to protect the children

and . . . was aware that something was happening to the children and she did not stop

it.” Munkres reported that C.H. had also made outcry statements regarding her

parents to Warmuth and to the therapist. Munkres explained that she is concerned

about K.K.’s ability to protect the children because she has been with abusive

partners, continually used drugs, lacks employment, and does not have stable

housing. Munkres testified that CASA recommends termination of the parental

rights of K.K. and J.H. Munkres testified that she recommended termination of

K.K.’s rights due to issues of safety and stability. Munkres explained that K.K. has

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not demonstrated that she can make wise decisions regarding the people in the

children’s lives. According to Munkres, the children’s current caregivers want to

adopt them, and the children want to stay with them.

Warmuth testified that she was assigned to the case regarding the children in

September 2017, when K.K. was incarcerated for manufacturing methamphetamine

with intent to deliver. According to Warmuth, K.K. became incarcerated three more

times during the pendency of the case. Warmuth testified that K.K. missed

approximately twenty-five drug tests between 2018 and 2019. Warmuth explained

that K.K.’s drugs of choice were methamphetamine and alcohol, and K.K. had not

demonstrated that she has a stable residence or stable employment.

According to Warmuth, both children disclosed physical and sexual abuse,

but the children are now excited about school and the future. Warmuth testified that

A.H. outcried to her that J.H. had touched his bottom and had touched and undressed

C.H. According to Warmuth, C.H. outcried that J.H. had undressed her, digitally

penetrated her, and touched himself in front of her. Warmuth testified that C.H.

reported the abuse to K.K., and K.K. told her that J.H. was not supposed to do that

and instructed her to tell J.H. he cannot do that. Warmuth opined that K.K. is unable

to keep the children safe and to meet their needs, and she testified that the children

are doing “really well[]” in their current placement and are happy to be there.

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According to Warmuth, permanently severing the connection between K.K. and the

children is in the children’s best interest. Warmuth explained that unrelated adoption

is the Department’s permanency goal for the children.

K.K.’s counsel sought to call three witnesses to testify on K.K.’s behalf: Lucia

DePaoli, Ryland Fowler, and Michelle Hansford. The Department objected to each

of the witnesses, asserting that they had not been timely disclosed before trial. K.K.’s

counsel responded that she disclosed the witnesses on her second supplemental

response to the Department’s request for disclosure, which the record reflects was

filed on May 14, 2019, and asserted that the witnesses were not a surprise to the

Department. The trial judge stated, “Surprise is not an issue. They need to have a

neat list of who you intend to present as witnesses.” K.K.’s counsel stated that it

would have been impossible to disclose the witnesses in 2017 when the Department

made its request for disclosure, but conceded that she “could have maybe disclosed

it a little bit sooner[.]” The trial court sustained the Department’s objection, and

K.K.’s counsel then made an offer of proof.

During the offer of proof, Fowler testified that she is K.K.’s primary

counselor, and she explained that K.K. has actively participated in counseling.

Fowler testified that Santa Maria Hostel has a place for K.K. if she were to obtain

custody of the children, and K.K. would continue with counseling “and then

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outpatient and transitional living.” Fowler explained that if the trial judge ordered a

monitored return, Santa Maria Hostel would work with CPS. Lucia DePaoli testified

during the offer of proof that she is the executive program director and executive

program director of admissions at the Jacquelyn facility at Santa Maria Hostel.

DePaoli explained that if the trial judge returned the children to K.K., Santa Maria

would have an apartment available for K.K., and she explained that the facility is a

safe and secure environment for children. During the offer of proof, Michelle

Hansford stated that she works with Santa Maria and is also a volunteer parent

advocate with the Department. Hansford explained that she was asked to meet with

K.K. two months ago because her job entails advocating on behalf of birth parents.

According to Hansford, K.K. is focused on her recovery and learning about

parenting skills and protective factors, and she opined that Santa Maria is a safe

environment for K.K. and the children.

K.K. called licensed chemical dependency counseling intern Melissa Porter

to testify. Porter testified that she is K.K.’s peer recovery support specialist at Santa

Maria Hostel, and she provides services such as “meetings, bus cards, employment,

. . . education, housing, support in court, probation, any appointments, [and] anything

that will hinder [K.K.] from her recovery. . . . According to Porter, an apartment is

available for K.K. and the children if the children were returned to K.K. Porter also

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explained that the facility offers parenting, nutrition, GED, and other groups and

classes that could be required by the Department or probation. Porter testified that

Santa Maria provides job training programs and helps graduates of those programs

to obtain employment.

K.K. testified that she did not know about J.H.’s offense and she was not living

with the children when it occurred. K.K. testified that she first became aware of the

pornographic activity when she was asked to meet with an FBI agent. K.K. testified

that neither of the children had told her about the pornographic activity before she

spoke with the FBI agent. According to K.K., she was reluctant to take the children

for a forensic examination because she did not “want it sticking in [C.H.’s] head that

that happened, not knowing the severity of the situation.” K.K. testified that she has

been working with the staff at Santa Maria, and she can provide the children with a

safe and drug-free environment. K.K. explained that she has been drug free for seven

months; she has a sponsor and regularly attends AA meetings; and she has actively

participated in all her drug addiction therapy.

ISSUES ONE, TWO, THREE, FOUR, AND FIVE

In issue one, K.K. contends that the evidence was legally and factually

insufficient to demonstrate that termination of her parental rights is in the children’s

best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). In issue two, K.K. contends

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that the evidence was legally and factually insufficient to support termination of her

parental rights under section 161.001(b)(1)(D) of the Family Code, and in issue

three, K.K. argues that the evidence was legally and factually insufficient to support

termination under section 161.001(b)(1)(E). See id. § 161.001(b)(1)(D), (E). In issue

four, K.K. challenges the legal and factual sufficiency of the evidence supporting

termination of her parental rights under section 161.001(b)(1)(O), and in issue five,

she challenges the legal and factual sufficiency of the evidence under section

161.001(b)(1)(P). See id. § 161.001(b)(1)(O), (P). We address issues one, two, three,

four, and five together.

Under legal sufficiency review, we review 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.” In the Interest of J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could, and we disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. Id. If no reasonable factfinder could form a firm belief or conviction that

the matter that must be proven is true, the evidence is legally insufficient. Id.

Under factual sufficiency review, we must determine whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about the

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truth of the Department’s allegations. Id. We give due consideration to evidence that

the factfinder could reasonably have found to be clear and convincing. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved that disputed evidence in favor if its ruling. Id. 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, the evidence is factually insufficient. Id.

The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “the measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established.” Tex. Fam. Code Ann. § 101.007; In the Interest of J.L.,

163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed

one or more predicate acts or omissions and that termination is in the child’s best

interest. See Tex. Fam. Code Ann. § 161.001; see also In the Interest of J.L., 163

S.W.3d at 84. We will affirm a judgment if any one of the grounds is supported by

legally and factually sufficient evidence and the best interest finding is also

supported by legally and factually sufficient evidence. In the Interest of C.A.C., Jr.,

No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5,

2011, no pet.) (mem. op.). However, when, as here, a parent challenges a trial court’s

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findings under section 161.001(b)(1)(D) or (E), we must review the sufficiency of

those grounds as a matter of due process and due course of law. In the Interest of

N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam).

Section 161.001(b)(1)(D) of the Family Code allows for termination of a

parent’s rights if the trier of fact finds by clear and convincing evidence that the

parent has “knowingly placed or knowingly allowed the child to remain in conditions

or surroundings which endanger the physical or emotional well-being of the child[.]”

Tex. Fam. Code Ann. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for

termination if the trier of fact finds by clear and convincing evidence that the parent

has “engaged in conduct or knowingly placed the child with persons who engaged

in conduct which endangers the physical or emotional well-being of the child[.]” Id.

§ 161.001(b)(1)(E). “[A] parent’s use of narcotics and its effect on his or her ability

to parent may qualify as an endangering course of conduct.” In the Interest of J.O.A.,

283 S.W.3d 336, 345 (Tex. 2009). A parent’s conduct in the home can create an

environment that endangers the child’s physical and emotional well-being. In the

Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “The

factfinder may infer from past conduct endangering the child’s well-being that

similar conduct will recur if the child is returned to the parent.” In the Interest of

M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).

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 Regarding the children’s best interest, we consider a non-exhaustive list of

factors: (1) the desires of the child; (2) emotional and physical needs of the child

now and in the future; (3) emotional and physical danger to the child now and in the

future; (4) parental abilities of the individuals seeking custody; (5) programs

available to assist these individuals to promote the best interest of the child; (6) plans

for the child by these individuals or by the agency seeking custody; (7) stability of

the home or proposed placement; (8) acts or omissions of the parent which may

indicate that the existing parent-child relationship is not proper; and (9) any excuse

for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72

(Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is

controlling, and evidence of one factor may be sufficient to support a finding that

termination is in the children’s best interest. See In the Interest of A.P., 184 S.W.3d

410, 414 (Tex. App.—Dallas 2006, no pet.). The best interest determination may

rely on direct or circumstantial evidence, subjective facts, and the totality of the

evidence. See In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo

2011, no pet.).

The trial judge heard evidence that K.K. had left the children in the care of

J.H., who was using the children to make pornographic videos. The trial judge also

heard evidence that both A.H. and C.H. had made outcries regarding sexual abuse,

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including an outcry to K.K., and K.K. responded by instructing the children to tell

J.H. he was not allowed to do that. Additionally, the trial judge also heard evidence

that K.K. had a history of abusing methamphetamines and alcohol, had been

incarcerated for manufacturing and possessing methamphetamines, and lacked

stable housing and employment. The trial judge further heard that K.K. had been

charged with criminal trespass. In addition, the trial judge heard evidence that A.H.

tested positive for methamphetamine. The trial court also heard evidence that K.K.

had lived in her vehicle with the children and had been with abusive partners.

Viewing the evidence in the light most favorable to the trial judge’s findings, we

conclude that the trial judge could reasonably have formed a firm belief or conviction

that K.K. (1) knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endangered their physical or emotional well-being

and (2) engaged in conduct or knowingly placed the children with persons who

engaged in conduct that endangered the children’s physical or emotional well-being.

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In the Interest of J.F.C., 96

S.W.3d at 266; In the Interest of J.T.G., 121 S.W.3d at 125.

With respect to the children’s best interest, the trial court heard evidence that

(1) K.K. is unable to provide the children with safety and stability, (2) that the

children are doing well in their current placement, and (3) termination of K.K.’s

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parental rights is in the children’s best interest. The trial court also heard evidence

that K.K. has a history of drug and alcohol abuse, and she does not have stable

housing or employment. Prompt and permanent placement of the children in a safe

environment is presumed to be in their best interest. See Tex. Fam. Code Ann. §

263.307(a). As the sole judge of the credibility of the witnesses and the weight to be

given to their testimony, the trial court could reasonably conclude that termination

of K.K.’s parental rights was in the best interest of C.H. and A.H. See id. §§

161.001(b)(2), 263.307(a), (b); see also In the Interest of J.F.C., 96 S.W.3d at 266;

Holley, 544 S.W.2d at 371-72.

We conclude that the Department established, by clear and convincing

evidence, that K.K. committed the predicate acts enumerated in sections

161.001(b)(1)(D) and (E) and that termination of K.K.’s parental rights is in the best

interest of C.H. and A.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (2); In

the Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Accordingly, we overrule issues

one, two, and three. Having concluded that the evidence was legally and factually

sufficient to support the trial court’s findings as to subsections 161.001(b)(1)(D),

(E), and (2), we need not reach issues four and five, in which K.K. challenges the

sufficiency of the evidence supporting the trial court’s findings under sections

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161.001(b)(1)(O) and (P). See In the Interest of N.G., 577 S.W.3d at 235; In the

Interest of C.A.C., Jr., 2011 WL 1744139, at *1; see also Tex. R. App. P. 47.1.

ISSUE SIX

In issue six, K.K. asserts that the trial court abused its discretion when it

refused to allow Fowler, DePaoli, and Hansford to testify on her behalf. We review

the trial court’s decision to admit or exclude evidence for abuse of discretion. In the

Interest of J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its

discretion when it acts without reference to any guiding rules or principles. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

A party who fails to timely make, amend, or supplement a discovery response

may not offer the testimony of a non-party witness who was not timely identified

unless the court finds that (1) there was good cause for the failure to timely disclose

or (2) the failure will not unfairly surprise or prejudice the other parties. In the

Interest of A.C., No. 02-18-00129-CV, 2018 WL 5273931, at *9 (Tex. App.—Fort

Worth Oct. 24, 2018, pet. denied) (mem. op.) (citing Tex. R. Civ. P. 193.6(a)). As

discussed above, the record reflects that K.K.’s counsel did not timely disclose the

identities of the three witnesses before trial, and counsel admitted that she could have

disclosed the witnesses sooner. Therefore, we conclude that the trial court did not

err by excluding the testimony. See Tex. R. Civ. P. 193.6(a); In the Interest of A.C.,

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2018 WL 5273931, at *9. Furthermore, we have already concluded that the evidence

was legally and factually sufficient to support the trial court’s best interest finding

and the predicate acts in section 161.001(b)(1)(D) and (E). K.K.’s offer of proof

demonstrated that the three excluded witnesses would have offered testimony

regarding sections 161.001(b)(1)(O) and (P). Therefore, even if the trial court had

erred, K.K. did not demonstrate that the trial court’s exclusion of the testimony

resulted in the rendition of an improper judgment or prevented her from properly

presenting her case to this Court. See Tex. R. App. P. 44.1(a)(1). Accordingly, we

overrule issue six. We affirm the trial court’s order terminating K.K.’s parental

rights.

ISSUE SEVEN

In issue seven, K.K. argues that the trial court abused its discretion by not

allowing additional time to place the children with family because a home study had

become available. We review a trial court’s decision regarding a continuance for

abuse of discretion; that is, whether the trial court’s decision was arbitrary,

unreasonable, and made without reference to any guiding rules and principles See In

the Interest of E.L.T., 93 S.W.3d 372, 374-75 (Tex. App.—Houston [14th Dist.]

2002, no pet.). A continuance shall not be granted “except for sufficient cause

supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R.

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Civ. P. 251. If a motion for continuance is not verified, we must presume that the

trial court did not abuse its discretion by denying the motion. In the Interest of E.L.T.,

93 S.W.3d at 375.

The record reflects that K.K.’s written motion for continuance, in which she

requested additional time to acquire a copy of the allegedly newly discovered home

study, was not verified or supported by affidavit. Therefore, we presume that the

trial court did not abuse its discretion by denying the motion. See id. In addition,

none of the witnesses testified that a home study of the maternal grandmother had

been approved; rather, all of the witnesses testified that, to the Department’s

knowledge, no home study had been approved. For all these reasons, we cannot

conclude that the trial court abused its discretion by denying K.K.’s motion for

continuance. We therefore overrule issue seven. We affirm the trial court’s order

terminating K.K.’s parental rights.

AFFIRMED.

______________________________
STEVE McKEITHEN
Chief Justice

Submitted on August 19, 2019
Opinion Delivered October 17, 2019

Before McKeithen, C.J., Kreger and Johnson, JJ.

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