In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-12-00089-CV

IN THE INTEREST OF M.S. AND K.A.S., CHILDREN

On Appeal from the 354th District Court

Hunt County, Texas

Trial Court No. 77,228

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

On July 30, 2012, the agreed day for trial on the petition requesting the termination of 

Father’s parental rights to M.S. and K.A.S., minor children,1 Father did not appear for trial, but 

put his hopes of the day in his newly filed, unsworn motion for continuance and for an extension 

of the dismissal deadline. After overruling Father’s motion, the trial court conducted a bench 

trial and found that termination of the parent-child relationship between Father and the children 

was in the children’s best interests and that Father engaged in acts or conduct that satisfied 

several of the statutory grounds for termination under Section 161.001 of the Texas Family 

Code.2

 See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012).

 1

For purposes of confidentiality, we refer to the children as M.S. and K.A.S., the children’s father as Father, and the 

children’s mother as Mother. 

2

On August 25, 2011, the Department of Family and Protective Services (the Department) had filed its petition for 

protection of the children, conservatorship, and termination. About two weeks later, the Department had been 

appointed temporary managing conservator of the children. Father, a resident of Maine at the time, made his first 

appearance at a status hearing December 9, 2011, and informed the court that he wanted the children to live with 

him. 

At a permanency hearing, April, 25, 2012, Father appeared and was appointed counsel. At the hearing, the 

Department’s caseworker, LaWonta Austin, testified that an expedited home study was performed in Maine and that 

the Department had denied placement of the children with Father due to his criminal history, history with the 

Department, and past domestic violence. The Department’s plan was to seek termination of parental rights. The 

trial court set the next hearing for May 25, 2012, and ordered the parties to have a settlement conference before that 

date. 

The parties were unable to reach a settlement. At the May 25, 2012, hearing, the trial court ordered Father 

to submit to a substance-abuse assessment and drug testing and to take parenting classes and an anger management 

course. The trial court explained to Father’s court-appointed counsel that Father needed to perform the ordered 

services in Maine. The trial court inquired about setting the trial August 6, 2012; Father’s counsel said he was 

unavailable that day, but agreed on a trial date of July 30, 2012. 

A pretrial hearing was set for July 27, 2012, at which no party presented any motion and the trial court 

announced that, after having spoken with the attorneys off the record, the final bench trial was scheduled for July 30, 

2012. 

After trial, the trial court terminated Father’s parental rights to both children under Texas Family Code 

subsections 161.001(1)(D), (E), (H), and (N). As to M.S., Father’s parental rights were also terminated based on 

added findings under subsections (C) and (F). Mother voluntarily relinquished her parental rights to the children 

and is not involved in this appeal.
3

On appeal, Father contends only that the trial court abused its discretion in denying his 

motion for continuance and extension of the deadline. We affirm the trial court’s judgment for a 

number of reasons.

First, the motion for a continuance was unsworn. A motion for continuance shall not be 

granted except for sufficient cause supported by an affidavit, through consent of the parties, or 

by operation of law. TEX. R. CIV. P. 251; see In re E.L.T., 93 S.W.3d 372, 374–75 (Tex. App—

Houston [14th Dist.] 2002, no pet.). If a motion for continuance is not made in writing and 

verified, it will be presumed that the trial court did not abuse its discretion by denying the 

motion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); E.L.T., 93 S.W.3d at 375. 

Here, while the motion for continuance was notarized, it was not verified or supported by an 

affidavit. Because the motion failed to comply with Rule 251, we presume that the trial court did 

not abuse its discretion by denying the motion for continuance. See id.

Second, the trial date had been agreed to, Father’s reasons for needing the continuance 

existed at the time that trial date was agreed to, and the motion for continuance was urged at or 

just before the trial date. These factors strongly suggest that the trial court was within its 

discretion to deny the motion. See, e.g., In re J.P., 365 S.W.3d 833, 836–37 (Tex. App.—Dallas 

2012, no pet.); Nwosoucha v. State, 325 S.W.3d 816, 827–28 (Tex. App.—Houston [14th Dist.] 

2010, pet. ref’d).
4

Third, the thrust of Father’s reasoning for the continuance was irrelevant to the grounds 

ultimately used for termination of his parental rights.3

 In the motion and during his counsel’s 

arguments before the trial court, Father argued that: (1) he could not complete the court-ordered 

services between the May 25 hearing when the services were ordered and the July 30 trial date; 

(2) he and his wife had left numerous telephone messages with the caseworker asking questions 

about the Department’s service plan, but the messages had not been returned; (3) he did not 

receive the Department’s service plan until after June 8, 2012, when the Department emailed it to 

Father’s counsel; (4) the Department’s service plan called for a review of the case in September 

2012, despite the final trial being set for July 30, 2012; (5) he had been laid off from work until 

recently and could not afford to travel to trial, but had maintained contact with his attorney, 

including a telephone conversation the day before trial; (6) he had been taking a parenting class 

and did not have drug issues; and (7) the home study had neither approved nor denied him 

placement. It should be remembered that Father’s failure to perform court-ordered services was 

not one of the grounds on which the trial court terminated his parental rights. See TEX. FAM.

CODE ANN. § 161.001(1)(O).

 3

Father argues that the Department should “abandon his not performing services as ground for termination” because 

he was ready, willing, and able to perform all ordered services and two months was an unreasonable and inadequate 

time period in which to do so. He contends that the service plan “gave him until at least September of 2012, before 

he was to be reviewed with regard to his progress in completing the services” and that the Department gave him no 

direction or assistance in performing the services. Father noted that the suit had been on file for “at least a year 

before he was requested to complete the services and that the Court’s failure to grant the [m]otion for [c]ontinuance 

and [e]xtension denied him his Due Process rights.” In essence, Father’s appeal contends that, by denying his 

motion for continuance, the trial court effectively prevented him from performing the services detailed in the 

Department’s service plan.
5

Fourth, no evidence was offered in support of Father’s motion for continuance. As 

Father’s motion contained no verification in support of the factual assertions set out therein, the 

trial court asked Father’s counsel whether he was presenting evidence. Father’s counsel stated:

These are things, I believe, that you can take judicial notice of, that the 

service plan that’s on file says that it will be reviewed in September of 2012, and 

this is, of course, July 30th, 2012.

So when it appeared that my client should have placement and then 

suddenly the department requests, well, let’s order services and set this for a quick 

trial and terminate, I mean, we have gone 180 degrees. I don’t think a single bit 

of it has been in response to any behavior, any actions on behalf of my client.

The Court’s file will also reflect from the various different orders that my 

client has appeared from Maine in person on several occasions. I believe there 

was one occasion where he appeared via telephone. 

And, Your Honor, this -- any of these matters before you, including this 

one, are of such importance that a parent should not be disadvantaged. If a parent 

falls short and the Court makes that kind of finding, that’s a different situation. 

But to disadvantage a parent and then to seek terminating the parent/child 

relationship, that is drastic. And in my opinion it’s not necessary in this case, 

Your Honor. That’s something that could be addressed. And my client would 

have an opportunity to do what services he needs to do and to be able to show the 

appropriateness and the best interest of the children in placing the children with 

him. And he certainly desires the opportunity to do just that.

We review the denial of a motion for continuance for an abuse of discretion. In re D.W., 

353 S.W.3d 188, 192 (Tex. App.—Texarkana 2011, pet. denied). 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. Id. In deciding whether a trial court has abused its discretion, 

we do not substitute our judgment for the trial court’s judgment, but decide only whether the trial 

court’s action was arbitrary and unreasonable. Id. (citing Yowell v. Piper Aircraft Corp., 703 

S.W.2d 630, 635 (Tex. 1986)). We will not reverse the ruling unless the record clearly shows a 

disregard of a party’s rights. Id.
6

Here, Father’s counsel agreed to the July 30 trial date. If the time between the May 25 

hearing and the trial date was insufficient to prepare for trial on the salient grounds sought for 

termination, Father failed to communicate this to the court in a timely fashion, either in June 

when he received the service plan, during July with the trial date looming, or during the pretrial 

conference July 27. Rather, the motion for continuance was not presented until the day of trial, 

and Father failed to support this late motion with any reason that should not have been apparent 

to him weeks earlier. Therefore, the trial court was within its discretion to deny the motion.

Also, Father’s appeal fails to challenge any of the statutory grounds on which the trial 

court based its order of termination or to assert how trial on those issues might have ended 

differently had he been granted additional time. 

For the reasons stated, we affirm the trial court’s judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 25, 2013

Date Decided: February 28, 2013