in the Interest of B. S. W. ( 2004 )

Affirmed and Memorandum Opinion filed December 23, 2004

Affirmed and Memorandum Opinion filed December 23, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00496-CV

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IN THE INTEREST OF B.S.W.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No.  02-09039J

M E M O R A N D U M   O P I N I O N

In three issues, appellant Margot Delores Woods challenges the termination of her parental rights to her daughter, B.S.W.  In her first issue, she contends the trial court erred in denying her oral motion for continuance based upon the absence of an expert witness.  In her second and third issues, she contends the evidence is legally and factually insufficient to support the trial court’s findings that (1) Ms. Woods 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, and (2) termination of the parent-child relationship is in the child’s best interest.  For the reasons stated below, we affirm.

I.        Factual and Procedural Background

A.      Ms. Hutchins Meets Ms. Woods & B.S.W. at the Hospital and Begins to Care for B.S.W. for Periods of Time.

On January 6, 1999, B.S.W. was born to Ms. Woods.  For the first nine months of her life, B.S.W. lived with Ms. Woods and B.S.W.’s father, Darion Steinback.^[1]  During this time, Ms. Woods began having “relationship and employment problems,” and was also using crack cocaine.  Ms. Beatrice Marie Jackson-Hutchins (Ms. Hutchins), a social worker at the hospital where B.S.W. was born and B.S.W.’s godmother, helped Ms. Woods care for B.S.W. and watched her on weekends.  In November of 1999, B.S.W. began living with Ms. Hutchins.  Ms. Woods visited periodically with B.S.W. and would take her out on weekends and return her on Sundays.  Ms. Woods also had two older children who were living with her mother.

Shortly after Ms. Woods left B.S.W. in Ms. Hutchins’s care, she went to Las Vegas for three weeks and rendezvoused with Mr. Steinback there.  While in Las Vegas, Ms. Woods was arrested for prostitution and served time.  Ms. Woods was on probation at the time, and the trip violated her probation. 

Ms. Hutchins continued to keep B.S.W. until January of 2002.^[2]  Ms. Hutchins paid for all of B.S.W.’s needs, including diapers, pull-ups, and clothes, and enrolled her in a private school.^[3]  During that time, Ms. Woods continued having drug abuse problems and checked herself into treatment programs at Santa Maria and the Star of Hope.  Although Ms. Woods completed the Star of Hope program in November of 2001, she later relapsed. 

One long Thanksgiving weekend when Ms. Woods took B.S.W. for the holiday, Ms. Hutchins tried repeatedly to contact her about bringing B.S.W. back early so she would not be too tired for school.  That Sunday evening, one of Ms. Woods’s friends came by without B.S.W. and told Ms. Hutchins that Ms. Woods had asked a lady she met at her mailbox, who she barely knew, to watch B.S.W. for a couple of hours.  However, by Sunday B.S.W. was still with the woman, who was upset and wanted $50.00 to release B.S.W.  Ms. Hutchins paid the woman and got B.S.W. back.  When Ms. Hutchins saw Ms. Woods the following Tuesday, she looked like “she had just come off something.”  Thereafter, Ms. Hutchins became concerned and stopped allowing Ms. Woods to visit B.S.W.

Later, however, B.S.W. resumed living with Ms. Woods.  After several months, Ms. Woods resumed abusing cocaine.  At first she used cocaine on the weekends, but then began using it every day.  She would leave B.S.W. with babysitters and go out.  Eventually, in November of 2002, Ms. Woods “crashed” on cocaine, had suicidal thoughts, and cut herself on her arms.  She called 911 and was admitted to a psychiatric hospital.  At the time of this incident, she was on probation for assaulting a police officer.  Because Ms. Woods tested positive for cocaine at the hospital and also had earlier tested positive at the probation office, she went to the county jail.  There, she went into the SAFPE program, which provided services to her, including a substance abuse program.  She remained incarcerated for approximately one year.^[4] 

B.      The Texas Department of Protective and Regulatory Services Assumes Conservatorship of B.S.W.

Shortly before Ms. Woods crashed on cocaine, the Texas Department of Protective and Regulatory Services (TDPRS or “the agency”)^[5] had received referrals alleging neglectful supervision and possible sexual abuse of B.S.W.  The allegation of sexual abuse was never validated.  However, when Ms. Woods went to jail, on November 5, 2002, the agency filed suit and requested emergency custody of B.S.W. Later, Ms. Hutchins and her parents intervened in the suit, seeking to be appointed as managing conservator of B.S.W.

After the agency attempted unsuccessfully to place B.S.W. with relatives, the trial court ordered mediation.  It was agreed at a mediation in August of 2003 that B.S.W. would be placed with Ms. Hutchins and her husband, and Ms. Woods and Mr. Steinback’s sister were allowed supervised visitation with B.S.W.  Although the trial court ordered a home study on Ms. Hutchins and placement of B.S.W. with her “if appropriate” prior to a background check, B.S.W. was not immediately placed with her.  Instead, she first went to a shelter and then a foster home.  A psychologist who had seen B.S.W. initially had reservations about placing B.S.W. with Ms. Hutchins because Mr. Hutchins had a history of substance abuse and had to go into the SAFPE program.  However, Mr. Hutchins completed the program.  B.S.W. was returned to the Hutchins home in August of 2003 as agreed in the mediation.

In January of 2004, Ms. Woods attended a pretrial hearing in this case.  Less than two weeks later, she relapsed on cocaine and alcohol.  Later, she testified at trial that she relapsed because she felt overwhelmed and pressured after visiting with B.S.W. with the case workers and child advocates present. 

C.      The Trial and Ultimate Termination of Parental Rights.

In April of 2004, the trial of this case was conducted before a master.  Hope Myers, the agency caseworker, testified regarding the agency’s involvement with B.S.W., and opined that termination of Ms. Woods’s parental rights was in the child’s best interest.  Viola Riswell, B.S.W.’s guardian ad litem and volunteer Child Advocate, testified that she had monthly contacts with B.S.W. and also visited the Hutchinses’ home.  She testified that B.S.W. had behavioral problems while she was in foster care, but these problems were resolved after she was placed with the Hutchinses in August of 2003.  She also testified that B.S.W. appeared to have bonded with the Hutchinses and called them “mommy and daddy.”  Ms. Riswell also testified that B.S.W.’s contacts with Ms. Woods were disruptive and not beneficial.  Nicole Taylor, who had been B.S.W.’s teacher for nine months, testified that B.S.W. was doing well academically and behaviorally.  She also testified that B.S.W. reacted negatively after her visits with Ms. Woods. 

Ms. Woods testified that she first started using cocaine nine years earlier, when she was 25.  She also admitted that she was soliciting prostitution in Las Vegas.  She recounted her history, and testified regarding the progress she had made since the agency took custody of B.S.W.  She also testified that she had completed the services the agency had required, except for individual counseling services she had only recently begun.  She testified that she obtained employment at her earliest opportunity, and had a car, an apartment, furniture, and a bed for B.S.W.  Additionally, she stated that she had tested negative for cocaine in the month preceding the trial.

Ms. Woods’s mother, Carolyn Prade, testified about how she assumed care of Ms. Woods’s older children.  She testified the oldest child came to live with her because it was more convenient for her to take the child to school from her house, and the younger one came to live with her because she “didn’t like the hours” Ms. Woods was keeping. However, she admitted that Ms. Woods had problems with depression and chemical dependency.  Ms. Prade testified that she had seen a change in Ms. Woods and Ms. Woods was “doing everything that a parent can do for the betterment of her life situation.”  She also testified that Ms. Woods had been spending a lot of time with her two older children, and she would like Ms. Woods to take them to stay with her in the summer after school was out.

Ms. Hutchins testified regarding her care of  B.S.W. and her experiences with her and Ms. Woods.  She also testified about Mr. Hutchins’s earlier substance abuse, that he had completed his treatment program, and that he has not had any problems. She testified they were willing to adopt B.S.W. and raise her as their own.  She also testified that visits with her mother confused B.S.W. and disrupted her behavior.  On cross-examination, Ms. Hutchins testified that, if the court did not terminate Ms. Woods’s parental rights, she would no longer continue playing an active role in B.S.W.’s life, because she did not think she “could handle that with her.”

On April 27, 2004, the trial court signed an order of termination terminating Ms. Woods’s parental rights to B.S.W.  This appeal ensued.

II.       Analysis

A.      The Motion for Continuance

In her first issue, Ms. Woods contends the trial court erred in denying her oral motion for continuance to secure the testimony of Ms. Woods’s substance abuse counselor, Ms. Willie Watson.  Shortly after the start of the second day of testimony, Ms Woods’s counsel requested the continuance, explaining that two subpoenas issued earlier for Ms. Watson were not served, and requesting that the trial be continued so that Ms. Watson could be subpoenaed and appear.  Rather than grant the continuance, the court instructed counsel to question Ms. Woods and to proffer testimony concerning what Ms. Watson might have said had she appeared.  Ms. Woods testified that Ms. Watson was optimistic about her progress and her prospects for continued sobriety.  On appeal, Ms. Woods contends that Ms. Watson’s testimony was “extremely relevant” to her case and would have been more effective than Ms. Woods’s own “self-serving” testimony.

A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law.  Tex. R. Civ. P. 251.  The record does not contain a written motion for continuance or an affidavit.^[6]  Because Ms. Woods did not comply with Rule 251, the trial judge did not abuse her discretion in denying the motion.  See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re E.L.T., 93 S.W.3d 372, 375 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Ohlhausen v. Thompson, 704 S.W.2d 434, 436 (Tex. App.—Houston [14th Dist.] 1986, no writ).

We overrule Ms. Woods’s first issue.

B.      Legal and Factual Sufficiency of the Evidence Supporting Termination of Parental Rights

1.       Standard of Review

The burden of proof at trial in parental termination cases is by clear and convincing evidence.  Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “Clear and convincing evidence” means 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.  In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002).

When reviewing a “no evidence” or legal sufficiency of the evidence point, therefore, we look at all the evidence in the light most favorable to the finding “to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”  In re J.F.C., 96 S.W.3d at 266.  If, after conducting our review of the record evidence, we determine that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then we conclude that the evidence is legally insufficient. Id.

When reviewing a challenge to the factual sufficiency of the evidence, we give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing.  Id.; In re C.H., 89 S.W.3d at 25–26.  We determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State’s allegations. In re J.F.C., 96 S.W.3d at 266. We consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding.  Id.  If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.  Id.

We also note that the natural right that exists between parents and their children is one of constitutional dimension.  In re J.W.T., 872 S.W.2d 189, 194–95 (Tex. 1994).  A parent’s right to “the companionship, care, custody and management” of his or her children is a constitutional interest “far more precious than any property right.”  Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).  Therefore, in a case terminating parental rights, proceedings should be strictly scrutinized and the involuntary termination statutes strictly construed in favor of the parent.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

2.       Applicable Law

In Texas, to terminate a parent‑child relationship, a trial court must find by clear and convincing evidence that (1) termination is in the best interest of the child, and (2) the parent committed one or more of the acts specifically named in the Texas Family Code as grounds for termination.  Tex. Fam. Code § 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984).  Proof of one element does not relieve the petitioner from establishing the other.  Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).  It is inconsequential that the actions occurred before or after birth. In re S.F., 32 S.W.3d 318, 322 (Tex. App.—San Antonio 2000, no pet.); Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ).

Here, the trial court found that termination was in the best interest of the child, see Tex. Fam. Code § 161.001(2), and that one ground under section 161.001—that appellant had engaged in conduct, or knowingly placed B.S.W. with persons who engaged in conduct, that endangered B.S.W.’s physical or emotional well‑being—supported termination.  See Tex. Fam. Code § 161.001(1)(E).

a.       The legal and factual sufficiency of the evidence of endangerment

In her second issue, Ms. Woods contends the evidence is legally and factually insufficient to support the trial court’s finding, by clear and convincing evidence, that Ms. Woods engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered B.S.W.’s physical or emotional well-being.  Of the bases advanced for endangerment, including a referral for sexual abuse and neglect, substance abuse, and suicide attempts, Ms. Woods contends none support the trial court’s finding.  This is so, she asserts, because alleged sexual abuse was ruled out, the evidence showed Ms. Woods did not actually attempt suicide but merely had suicidal thoughts, and she left B.S.W. with responsible babysitters.  Consequently, she contends there is “absolutely no evidence in the record to establish in any way that B.S.W. was ever physically abused, neglected or routinely left with strangers.”

Concerning Ms. Woods’s substance abuse, she contends the agency caseworker and B.S.W.’s guardian ad litem were not credible witnesses because, instead of being advocates for B.S.W., they were instead advocates for Mrs. Hutchins, who wanted to adopt B.S.W. and would not remain in her life unless Ms. Woods’s parental rights were terminated.  As support for her contention, Ms. Woods complains that B.S.W.’s caseworker and guardian ad litem emphasized that Ms. Woods’s past drug use could support the termination of her parental rights, while at the same time they did not consider Mr. Hutchins’s history of addiction significant to B.S.W.’s placement. She also asserts those witnesses discounted Ms. Woods’s efforts to complete the services the agency required, to improve her situation, and to provide for B.S.W.  However, we disagree that the evidence is legally and factually insufficient to support the finding on endangerment.

Whether a child has been endangered for purposes of this finding under subsection (E) is more than a threat of theoretical injury or possible ill effects of a “less-than-ideal” family environment.  Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  “Endanger” means to jeopardize the child or to expose the child to loss or injury.  Id. Endangerment encompasses the following:

· endangerment can be exhibited by both actions and failures to act;

· endangering acts need not be directed at the child or cause actual injury or threat of injury to the child;

· endangerment may be satisfied by showing a parent engaged in a “course of conduct” that endangered the child’s physical or emotional well-being;

· endangerment may include evidence that a parent has been imprisoned;

· endangerment may include evidence of drug addiction and its effect on a parent’s life and her ability to parent; and

· endangerment may include what a parent does both before and after birth of a child.

In re U.P., 105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citations omitted).

With these considerations in mind, a reasonable fact finder could have found legally and factually sufficient evidence to support the finding of endangerment.  The evidence is undisputed that Ms. Woods has a history of illegal drug use, criminal activity, and imprisonment.  She started using cocaine when her oldest child was five years old and her second child was one year old.  The trial court could have found that Ms. Wood’s mother took over the responsibility of caring for the older children because Ms. Woods’s substance abuse and other conduct was jeopardizing their well-being.  Continuing this pattern, Ms. Woods admitted that when she handed over B.S.W. to Ms. Hutchins’s care she was using crack cocaine.

Then, in the same month that Ms. Hutchins began keeping B.S.W., Ms. Woods admitted that she went to Las Vegas, in violation of her probation, and engaged in prostitution.  While Ms. Woods later checked herself into a rehabilitation program at the Star of Hope and completed the program, she admitted at trial that she relapsed when she was moved to the housing side of the program. 

Ms. Woods also admitted that, just a few months after Ms. Hutchins returned B.S.W. to her, she “crashed” using crack cocaine.  She also admitted that she cut her arms while under the influence of drugs and stopped taking her depression medicine.  In addition, although Ms. Woods did not abuse drugs while in jail and completed a substance abuse program while there, that did not prevent her from using drugs again once she got out—only four months before the trial of this case.  Ms. Woods explained that she used drugs because she felt very pressured and overwhelmed.  However, her inability to refrain from substance abuse at a time when her conduct was under the court’s scrutiny and could affect her right to parent B.S.W. contradicts her assertion that her recent conduct demonstrated her improvement and ability to provide for B.S.W. 

Likewise, Ms. Woods’s contention that the agency wanted her parental rights terminated so that the Hutchinses could adopt B.S.W., and therefore discounted Mr. Hutchins’s drug use, does not alter the facts about her own conduct that include criminal activity, years of substance abuse both before and after B.S.W. was born, and absence caused by imprisonment.  And, although Ms. Woods assails the testimony of the agency’s case worker, the guardian ad litem, and Ms. Hutchins as not credible, the trial court was in the best position to resolve conflicts in evidence and weigh the credibility of these witnesses.  Among other things, Ms. Hutchins testified to the episode that occurred while B.S.W. was in her care in which Ms. Woods took B.S.W. over a Thanksgiving holiday, and later left the child with a woman Ms. Woods barely knew, who would not return B.S.W. until Ms. Hutchins paid her $50.00.  Given this testimony, and the other evidence discussed above, a reasonable fact finder could have determined, by clear and convincing evidence, that Ms. Woods engaged in conduct, or knowingly placed B.S.W. with persons who engaged in conduct, that endangered B.S.W.’s physical or emotional well‑being.

Based on our review of the evidence, we find that it is legally and factually sufficient to support the trial court’s finding of endangerment.  We overrule Ms. Woods’s second issue.

b.       The legal and factual sufficiency of the evidence that termination was in B.S.W.’s best interest

In her third issue, Ms. Woods contends the evidence is legally and factually insufficient to support, by clear and convincing evidence, the trial court’s finding that termination of her parental rights is in B.S.W.’s best interest.  She relies on the same evidentiary arguments to support this issue.  She contends the only possible impediment to her ability to parent B.S.W. was her “addiction to cocaine and her propensity to relapse” and points out that, at the time of trial, she was “doing everything within her power” to provide a stable and safe environment for B.S.W.  Her efforts included holding two jobs, obtaining an apartment, furniture, and a car, and completing most of the services required by the agency.  She also notes that her mother testified that, at the end of the school year, she intended to return Ms. Woods’s two older children to her.  Despite this, she contends, the agency was unwilling to permit her to continue to improve and complete the remainder of her services, because it wanted her parental rights terminated so that B.S.W. could be adopted by the Hutchinses.

In determining the best interest of the child, a number of factors may be considered, including the following: 

· the desires of the child;

· the emotional and physical needs of the child now and in the future;

· the emotional and physical danger to the child now and in the future;

· the parental abilities of the individuals seeking custody;

· the programs available to assist these individuals;

· the plans for the child by these individuals;

· the stability of the home;

·  the acts or omissions of the parent which may indicate that the existing parent‑child relationship is not a proper one; and

· any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 371–72.  These factors, often called Holley factors, are not exhaustive; some listed factors may not apply to some cases, while other factors not on the list may also be considered when appropriate.  In re C.H., 89 S.W.3d at 27.  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. Conversely, the presence of scant evidence relevant to each Holley factor will not support such a finding.  Id.  Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. Id. at 28.

Reviewing the evidence, we find it is legally and factually sufficient to support the finding that termination was in B.S.W.’s best interest, as discussed below.

The child’s desires.  B.S.W. was not questioned whether she wanted her mother’s parental rights terminated. However, the Hutchinses and others who observed her believed she had negative reactions after visits with Ms. Woods.

The child’s emotional and physical needs.  B.S.W. was placed in individual therapy because she was observed to be hyperactive and was sexually acting out with stuffed animals.  The therapy was continuing, and at the time of trial she was described as doing well.  Other evidence showed that she improved after coming into the care of the Hutchinses. 

The emotional and physical danger to the child, now and in the future. No evidence showed that Ms. Woods directly caused physical injury to B.S.W.  That does not undermine any finding by the court, though, because other facts showed potential danger to B.S.W.  The evidence showed that, while B.S.W. was in her care, Ms. Woods caused physical injury to herself by cutting herself while under the influence of drugs. Additionally, Ms. Woods relapsed just four months before the trial of this case.  Such evidence was relevant to the possibility of emotional or physical danger to B.S.W. if Ms. Woods were to relapse again.  The trial court could also consider the emotional danger to B.S.W. in continuing a relationship with a mother who would come in and out of her life because of drug use or incarceration, disrupting any permanency or stability for B.S.W.

The parental abilities of the individual seeking custody.  The record contains very little evidence of any parental responsibilities on Ms. Woods’s part.  Most of Ms. Woods’s parental responsibilities have been performed by others. Her mother assumed care of her two oldest children, and continued to do so at the time of trial.  The Hutchinses assumed care of B.S.W. for most of her life; first at Ms. Woods’s request and then after they intervened in this suit. During the time others cared for Ms. Woods’s children, Ms. Woods provided little or no financial assistance to these care givers.  Ms. Woods points out that she has completed parenting classes, is employed, and has an apartment with a bed for B.S.W.  However, these facts, while admirable, do not alone demonstrate that Ms. Woods is capable of parenting B.S.W.  Ms. Woods’s relapse into drug activity just a few months before trial—while she was under the court’s scrutiny—weighs against her ability to parent B.S.W.  Moreover, her return to cocaine use demonstrates a continuing pattern of drug abuse that the trial court could have found rendered her unable to care for her older children and, later, was the reason she left B.S.W. with Ms. Hutchins.

The programs available to assist these individuals in promoting the child’s best interest.  Ms. Woods stresses that she has completed parenting, substance abuse, and other classes the agency required.  However, despite completing several drug treatment programs, Ms. Woods relapsed into drug use shortly before the trial in this case.  Her actions demonstrated that she failed to put to use the instructions she received, and she did not appear to consider the effect of her action on B.S.W. or this case.  While Ms. Woods indicated a desire at the time of trial to do what would be necessary for B.S.W., the court could have determined that she lacked the ability to successfully implement any program.

Plans for the child by the individual or agency seeking custody. The agency maintains that its plan for B.S.W. is to terminate Ms. Woods’s parental rights so B.S.W. can be placed in a safe and secure environment.  The caseworker testified that B.S.W. is “very much adoptable.” The evidence showed that the Hutchinses have provided a good environment for B.S.W., and have expressed a desire to adopt her.  The trial court could have concluded, given Ms. Woods’s history as outlined above, termination of her parental rights was in B.S.W.’s best interest.

The stability of the home or proposed placement.  Ms. Woods has failed to show that she is stable enough to parent B.S.W. for any prolonged period.  The trial court was entitled to determine that this pattern would likely continue and that permanency could only be achieved through termination and adoption.

The parent’s act or omission which may indicate the existing parent-child relationship is not a proper one.  As discussed above, Ms. Woods has a history of drug use and criminal activity that endangered B.S.W.’s well-being.  And, on at least one occasion, Ms. Woods left B.S.W. to be cared for by a woman she only recently met who demanded $50 to return the child to Ms. Hutchins.  The trial court was free to assess the weight of this evidence and the credibility of the witnesses when considering whether termination of Ms. Woods’s parental rights would be in B.S.W.’s best interest.

Any excuse for the parent’s acts or omissions.  Ms. Woods offered no excuse for her actions, but only admitted she made “bad choices.”  She stresses her desire to move on from the January relapse, but her desire alone does not erase the other evidence weighing against her.

On this record, the evidence was legally and factually sufficient to support a finding that termination was in B.S.W.’s best interest.  Ms. Woods’s third issue is overruled.

III.      Conclusion

We overrule Ms. Woods’s three issues and affirm the trial court’s judgment.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion December 23, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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^[1]  At the time of B.S.W.’s birth, Ms. Woods was married to another man, who was incarcerated.  Mr. Steinback’s parental rights were also terminated, on a finding of constructive abandonment, and he did not appeal.

^[2]  Ms. Hutchins testified she returned B.S.W. to Ms. Woods in March of 2002.

^[3]  Ms. Hutchins testified that Mr. Steinback occasionally gave her $20 for B.S.W.

^[4]  When Ms. Woods left the SAFPE program, she was “transitioned” into a halfway house where she participated in a substance abuse program, and also attended programs at Keller House.

^[5]  In the records, the agency is also identified as the Department of Family and Protective Services.

^[6]  The record also does not reflect that the parties consented to a continuance, and Ms. Woods does not contend that a continuance should have been granted by operation of law.  See Tex. R. App. P. 251.