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

IN THE
TENTH COURT OF APPEALS
No. 10-09-00026-CV
IN THE INTEREST OF Z.J.C. AND T.J.M.C., MINOR CHILDREN
From the County Court at Law
Hill County, Texas
Trial Court No. 46156
OPINION
S.T. appeals the trial court’s judgment terminating her parental rights to her two
children, Z.J.C. and T.J.M.C. Because the evidence is sufficient to support the trial
court’s finding of a predicate act for termination and because the trial court did not
abuse its discretion in denying S.T.’s motion for continuance, the trial court’s judgment
is affirmed.
BACKGROUND
S.T.’s two children were removed from her home in Hill County in late January
of 2008 because the condition of the home was deplorable. S.T. was admitted to the
hospital on the same day of the removal, but when discharged a few days later in early
February, she moved to Palacios. In late March, she moved to Houston. She missed
court dates; she made excuses for not visiting her children; she did not provide any
monetary support for her children; and she lacked interest in communicating with her
children. S.T. never saw her children again.
STATEMENT OF POINTS
First we must address whether we may consider any issues raised by S.T. on
appeal.
The Texas Family Code requires an appellant of a state-initiated termination
order to file with the trial court, no later than 15 days after the final order is signed, a
statement of points on which the appellant intends to appeal. TEX. FAM. CODE ANN. §
263.405(b) (Vernon 2008). We, as the "appellate court[,] may not consider any issue that
was not specifically presented to the trial court in a timely filed statement of points…."
Id. § 263.405(i); In the Interest of E.A.R., 201 S.W.3d 813 (Tex. App.—Waco 2006, no pet.).
Although not labeled as a statement of points, S.T. presented specific issues for review
in her timely filed motion for new trial. A statement of points may be combined with a
motion for new trial. TEX. FAM. CODE ANN. § 263.405(b-1) (Vernon 2008). S.T. later
specifically adopted those issues as her statement of points. Thus, we consider those
issues as timely filed points and proceed to review only those issues on appeal.
However, S.T. later attempted to add more issues in an untimely filed statement
of points and provided further additional issues in her appellate brief. None of the
untimely raised issues challenge the constitutionality of section 263.405(i) or complain
that trial counsel was ineffective for failing to file a statement of points. See In the
Interest of J.O.A., No. 08-0379, 2009 Tex. LEXIS 250, 52 Tex. Sup. J. 714 (Tex. 2009).
Because none of the additional issues were specifically presented to the trial court in the
In the Interest of Z.J.C. Page 2
statement of points included within the motion for new trial, we do not consider those
additional issues. See In the Interest of E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco
2006, no pet.).
LEGAL AND FACTUAL SUFFICIENCY REVIEW
In her first issue, S.T. contends the evidence is legally and factually insufficient to
support the trial court’s finding of three predicate acts under section 161.001(1) of the
Texas Family Code. TEX. FAM. CODE ANN. § 161.001(1) (Vernon 2008). Only one
predicate act under section 161.001(1) is necessary to support a judgment of termination
when there is also a finding that termination is in the child's best interest. In re A.V., 113
S.W.3d 355, 362 (Tex. 2003). In this case, the trial court made a finding that termination
was in the best interest of the children; and, as discussed later herein, that finding is not
properly challenged on appeal. We therefore focus on the challenge to the predicate act.
One of S.T.’s complaints is that the evidence is legally and factually insufficient
to support a finding under subsection (D) that she “knowingly placed or knowingly
allowed the child(ren) to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child(ren).” TEX. FAM. CODE ANN. § 161.001(1)
(D) (Vernon 2008). In this issue, S.T. challenges all parts of subsection (D). However,
she only challenged the “knowing” element of subsection (D) in her points contained
within her motion for new trial. Therefore, whether the knowing element is legally or
factually sufficient is the only portion of this complaint that we consider. The
remaining portion of this complaint is dismissed. See In the Interest of E.A.R, 201 S.W.3d
813, 814 (Tex. App.—Waco 2006, no pet.).
In the Interest of Z.J.C. Page 3
Standard of Review
In conducting a legal sufficiency review in a parental termination case:
[A] court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed
a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder's conclusion and the role of a court conducting
a legal sufficiency review, looking at the evidence in the light most
favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to be incredible. This does not mean that a court
must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew
the analysis of whether there is clear and convincing evidence.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
[A] court of appeals must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. . . .
[T]he inquiry must be "whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the
State's allegations." A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.
In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
In the Interest of Z.J.C. Page 4
Applicable Facts
Child Protective Services of Hill County received two reports in late January of
2008, within days of each other, of the physical neglect of S.T.’s two children. When
Beverly Gerke, an investigator with Child Protective Services, interviewed the children,
they both told her that they did not have enough to eat and did not have water at the
house. When she arrived at S.T.’s house, the house was cold. There was a terrible odor
in the house. There were rat feces in the kitchen. There were roaches everywhere. The
refrigerator had roaches in it. There was some food, but some of it was moldy. There
was not enough food to sustain a child. It was not a livable situation for any adult or
child. In the bathroom, the commode was covered in feces. There were feces on the
floor. There were also trails of feces on the floor going to and from the back bedroom,
which was S.T.’s mother’s bedroom, and the bathroom. There was not a room
specifically for the children. On the day of the removal, S.T. appeared disoriented.
S.T. proposed that the reason the house was a mess was that she became sick in
November and was so sick that she was not aware the house was in that condition.
But S.T.’s cousin, Shirley, disputed S.T.’s proffered reason for the condition of the
house. Shirley testified that in August or September of 2007, she visited S.T.’s home and
found it to be “pretty nasty” and “pretty rough.” She would not sit down anywhere.
She observed roaches and trash on the floor. At that time, Shirley did not venture past
the living room. In November, S.T. and the children did not have electricity in their
home; and S.T. asked Shirley if they could spend the night in Shirley’s guest house. S.T.
and the children spent one night with Shirley but left after that night because of a
In the Interest of Z.J.C. Page 5
disagreement S.T. had with Shirley’s house rules. Shirley observed that S.T. did not
show any signs of being sick that night.
A week before Christmas of 2007, Shirley and her son stopped by S.T.’s house to
leave Christmas gifts for the children. No one was home. Shirley stated that the house
was “just nasty beyond comprehension.” She stated that she saw rat feces and roaches
during this visit. Later, just a few days prior to the removal of the children, Shirley
went back to S.T.’s house to pick up some papers for S.T.’s mother who had been taken
to the hospital. S.T. “cussed [Shirley] out” because S.T. believed she was more sick than
her mother and that she was the one who needed to be taken to the hospital, not her
mother. Shirley testified that S.T. did not have any outward appearance of being sick.
S.T. was walking around and was not incoherent. Shirley stated that at that time, the
house was so filthy she called the police. She believed that the house was not a safe
environment for the children.
Shirley further testified that after the children were removed, she and her son
went over to S.T.’s house to try to clean it up for the children’s return. But after
removing six 30 gallon trash bags full of trash from just the kitchen floor, Shirley gave
up. She stated that the amount of filth in the house was not just weeks’ worth of filth; it
was months’ worth of filth.
Apparently, these months were not the only time S.T.’s home was unclean. At
least one of S.T.’s children told Shirley that they would move from “worse house to
worse house.”
In the Interest of Z.J.C. Page 6
S.T.’s mother testified that she was a substitute teacher, had asthma, and was
physically unable to clean the house when she got home after work. She stated that S.T.
had become so wrapped up in herself that she did not see what was going on with the
rest of the family. S.T. expected the children who were 6 and 8 years old to do most of
the cleaning. S.T.’s withdrawal had started in the summer of 2007. S.T. would just stay
in her room and play video games.
Application
After looking at the evidence in the light most favorable to the trial court's
finding that S.T. knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-being of the
children, we hold that a reasonable trier of fact could have formed a firm belief or
conviction that the finding was true. The evidence of S.T.’s knowledge was legally
sufficient.
After giving due consideration to evidence that the trial court could reasonably
have found to be clear and convincing, we hold that the evidence was such that the trial
court could reasonably form a firm belief or conviction that S.T. knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endangered the physical or emotional well-being of the children. The evidence of S.T.’s
knowledge was factually sufficient.
S.T. further complains in her brief that the trial court’s finding of best interest
should be reversed. This part of S.T.’s issue was not specifically presented to the trial
court in her statement of points located in her motion for new trial and is dismissed.
In the Interest of Z.J.C. Page 7
TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008); see In the Interest of E.A.R, 201 S.W.3d
813, 814 (Tex. App.—Waco 2006, no pet.).
Conclusion
Because the evidence was legally and factually sufficient to support one
predicate act, S.T.’s first issue is overruled.
CONTINUANCE
S.T.’s second issue contains two parts. In the first part of the issue, S.T. argues
that the trial court abused its discretion in denying her motion for continuance. We
begin by assuming without deciding that the motion for continuance was properly
supported by affidavit in the form of counsel’s verification.1 See TEX. R. CIV. P. 251. The
decision to grant or deny a motion for continuance is within the trial court's sound
discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); State v. Crank, 666 S.W.2d
91, 94 (Tex. 1984). Unless the record discloses a clear abuse of that discretion, the trial
court's action in granting or refusing a motion for continuance will not be disturbed.
Villegas, 711 S.W.2d at 626; Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 292
n.142 (Tex. 2004).
It was alleged in S.T.’s motion for continuance that the continuance was needed
because counsel was unable to contact S.T. until November 20, 2008 when the trial was
1 It is unclear from the case law whether a verification of the motion can substitute for a supporting
affidavit as specified in the rule. In this case, the verification is not sufficient because it is not based on
personal knowledge and does not verify that the facts contained in the motion are true and correct.
Rather, the verification only asserts that the allegations are based on information and the belief of the
affiant. See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Humphreys v. Caldwell, 888 S.W.2d 469, 470
(Tex. 1994).
In the Interest of Z.J.C. Page 8
scheduled for December 1, 2008. Counsel requested additional time to prepare for trial.
At the hearing on the motion, the trial court attributed the delay in communication with
counsel to S.T., stating that S.T. knew the Department was involved in the case and
could have received information from the Department had she tried. The trial court’s
reason for the denial is amply supported by the record which shows a history of S.T.’s
unwillingness to do what was necessary to have her children returned to her.
Therefore, we find the trial court did not abuse its discretion in denying S.T.’s motion
for continuance. Even if the trial court abused its discretion in denying the motion for
continuance, S.T. cannot show harm. S.T. never alleged in her motion for continuance,
her motion for new trial, or in her brief on appeal how much time she needed or what
other resources could have been discovered had she had additional time to prepare for
trial. What she would have done with more time was never asserted and thus remains
a mystery.
In the second part of her issue, S.T. argues that her due process rights were
violated when the trial court denied her motion for continuance. This part of the issue
was not specifically presented to the trial court in S.T.’s statement of points contained
within her motion for new trial and is dismissed. TEX. FAM. CODE ANN. § 263.405(i)
(Vernon 2008); see In the Interest of E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco 2006,
no pet.).
Because the trial court did not abuse its discretion in denying S.T.’s motion for
continuance, her second issue is overruled.
In the Interest of Z.J.C. Page 9
ISSUES DISMISSED
S.T.’s last two issues, that she was denied due process when she was denied a
jury trial and that her trial counsel was generally ineffective, were not specifically
presented to the trial court in her statement of points located in her motion for new trial
and are dismissed. TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008); see In the Interest of
E.A.R, 201 S.W.3d 813, 814 (Tex. App.—Waco 2006, no pet.).
CONCLUSION
Having overruled the issues properly before us, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed July 22, 2009
[CV06]
In the Interest of Z.J.C. Page 10