Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00001-CV

IN THE INTEREST OF E.L.M.M., et al., Children

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2013-PA-01857

Honorable Peter A. Sakai, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Jason K. Pulliam, Justice

Delivered and Filed: April 15, 2015

AFFIRMED

E.R.M. (“Mother”) appeals the trial court’s order terminating her parental rights to her 

eight children, arguing that the trial court erred in overruling her oral motion for continuance and 

in finding that termination of the parent-child relationship was in the children’s best interest. We 

affirm the trial court’s order.

BACKGROUND

Due to allegations of neglectful supervision and physical neglect, the Texas Department of 

Family Services filed an Original Petition in Suit Affecting Parent-Child Relationship on July 31, 

2013. The matter was called to trial on December 11, 2014. On the day of trial, Mother met her 

attorney in presiding court. At that time, her attorney informed her that the State would be filing 

a motion to revoke Mother’s probation. The attorney had to leave, and when he returned, Mother 
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was gone. After unsuccessfully attempting to contact her by telephone, counsel announced “not 

ready” at trial. The trial court overruled the “not-ready” announcement, stating that Mother “has 

voluntarily absent[ed] herself from the Court.” At the conclusion of the trial, the trial court found 

by clear and convincing evidence that Mother failed to complete the court-ordered family service 

plan and that termination of the parent-child relationship between Mother and the children was in 

the children’s best interest, thus terminating Mother’s parental rights. Mother timely appealed.

DISCUSSION

Mother first argues that the trial court erred in denying her oral motion for continuance 

because the mandatory dismissal date under section 263.4011 was not until two months after trial, 

and therefore there was sufficient time for the trial court to reset the matter and give Mother 

additional time to work out the issues related to the potential arrest warrant and to continue to 

finish the tasks and goals of the service plan. See TEX. FAM. CODE. ANN. § 263.401 (West 2014). 

Mother explains that she did not have sufficient time to consult with her attorney about the motion 

to revoke and the arrest warrant and how it could affect the trial regarding her parental rights. 

Further, Mother argues that she needed time to consult with a criminal defense attorney on the 

allegations contained in the motion to revoke. Mother contends that there was no information 

presented to the trial court indicating that a reset would be detrimental to the best interest of the 

children, and also notes that all past resets had been granted due to her attorney’s personal and 

family problems. 

In a termination of parental rights case, we review the trial court’s denial of a motion for 

continuance for an abuse of discretion. See TEX. R. CIV. P. 251; In re E.L.T., 93 S.W.3d 372, 374 

(Tex. App.—Houston [14th Dist.] 2002, no pet.). An appellate court will sustain the trial court’s 

1 Trial was conducted on December 11, 2014; the dismissal date was previously extended by the trial court to February 

20, 2015.

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determination absent a finding that “the trial court acted without reference to any guiding rules and 

principles, such that its ruling was arbitrary or unreasonable.” Low v. Henry, 221 S.W.3d 609, 614 

(Tex. 2007). 

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. 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 in denying the motion. In re E.L.T., 93 S.W.3d at 375 (holding that because 

appellant in termination of parental rights case did not comply with Rule 251, the trial court did 

not abuse its discretion by denying her motion for continuance). Here, the record does not contain 

a written motion or affidavit. Because Mother did not comply with Rule 251, we cannot conclude 

that the trial court abused its discretion in denying the oral motion. See Villegas v. Carter, 711 

S.W.2d 624, 626 (Tex. 1986); In re K.M., No. 2-01-349-CV, 2003 WL 2006583, at *2-3 (Tex. 

App.—Fort Worth May 1, 2003, no pet.) (mem. op.) (holding trial court did not err in denying oral 

motion for continuance even though appellant failed to appear for final termination hearing 

because motion did not comply with requirements of Rule 251). Accordingly, we overrule 

Mother’s first issue.

In her second and third issues, Mother argues that the trial court’s finding that termination 

is in the best interest of the children is legally and factually insufficient. To terminate parental 

rights pursuant to section 161.001 of the Family Code, the Department has the burden to prove: 

(1) one of the predicate grounds in subsection 161.001(1); and (2) that termination is in the best 

interest of the child. TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014); In re A.V., 113 S.W.3d 

355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX.

FAM.CODE ANN. § 161.206(a) (West 2014); 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 

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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 (West 2014). 

In reviewing the legal sufficiency of the evidence to support the termination of parental 

rights, the court must “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. “[A] reviewing court must assume that the 

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. 

“A corollary to this requirement is that a court should disregard all evidence that a reasonable 

factfinder could have disbelieved or found to have been incredible.” Id.

In reviewing the factual sufficiency of the evidence to support the termination of parental 

rights, a court “must give due consideration to evidence that the factfinder could reasonably have 

found to be clear and convincing.” 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, then the evidence is 

factually insufficient.” Id.

Mother does not challenge the sufficiency of the evidence to support the predicate finding, 

which was that she failed to substantially complete her court-ordered family service plan. See

TEX. FAM. CODE ANN. § 161.001(1)(O). Instead, she challenges only the trial court’s best interest 

finding. She contends that although she did not start on the family service plan right away because 

she was busy caring for her sick mother, she has since worked on both the conditions of her 

probation and her family service plan, which included drug counseling and parenting classes.

In reviewing the sufficiency of the evidence to support the best interest finding, we apply 

the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: 

(1) the desires of the child; (2) the present and future emotional and physical needs of the child; 

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(3) the present and future emotional and physical danger to the child; (4) the parental abilities of 

the individuals seeking custody; (5) the programs available to assist these individuals to promote 

the best interest of the child; (6) the plans held by the individuals seeking custody for the child; 

(7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or 

omissions of the parent which may indicate that the existing parent-child relationship is not a 

proper one; and (9) any excuse for the acts or omissions of the parent. Id. The foregoing factors 

are not exhaustive, and “[t]he absence of evidence about some of [the factors] would not preclude 

a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s

best interest.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

The record reflects that the children were originally removed from the home after police 

responded to an assault family violence call. The home was infested with insects, roaches, and 

lice, and smelled of animal feces and urine. Mother later took the children to a motel, and left 

them there while she went grocery shopping, resulting in her arrest and conviction for child 

abandonment. The children were reported to have scabies and severe lice. The Department 

caseworker testified that she prepared a family service plan for Mother, the key goals of which 

included complying with her probation, participating in parenting visits, showing that she could 

financially support herself, and completion of domestic violence and anger management courses. 

Mother made many excuses for why she could not complete her services. Mother was inconsistent 

in visiting her children; she was either late or missed a lot of visits. A few months prior to trial, 

Mother was alleged to have committed an assault causing bodily injury against her ex-boyfriend’s 

girlfriend. Because of the assault, the State filed a motion to revoke Mother’s probation. The 

caseworker testified that the fact the assault occurred after Mother completed anger management 

classes meant that she was not able to apply the lessons she learned in those classes. Further, if 

Mother’s probation were to be revoked, she would face up to five years’ imprisonment. 

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The Department caseworker testified that adoption was planned for all of the children. The 

youngest child is currently living with a foster family who can provide her with a drug-free and 

domestic-violence-free home. The next four youngest children have been in the care of their 

paternal grandparents for the entirety of the case, and they are well bonded with their grandparents. 

The three oldest children reside at St. Jude’s [ranch for children] and their great-grandmother has 

expressed an interest in adopting them. 

The caseworker stated that it was in the children’s best interest to terminate the parentchild relationship because the children were in need of permanency. The family had been referred 

to the Department eleven times. The caseworker stated that Mother downplays a lot of the 

Department’s concerns, and denied that her children were infected with lice and scabies at the time 

of removal. Mother also failed to exercise all of her visitation. During visits, Mother did not seem 

to focus on the children, but rather, on what information she could gain from them. The caseworker 

did not believe that Mother understood the reasons her children were removed or how to provide 

a stable home for her children. 

The children’s attorney ad litem agreed that termination was in the best interest of the 

children and testified that although Mother has tried to get her life together and give the appropriate 

attention to her children, she has failed “miserably.” The trial court also considered the CASA 

volunteer’s report which recommended termination of Mother’s parental rights based on her 

inability to complete the family service plan. Mother’s recent arrest for assault was also a concern. 

The report noted that Mother does not have a job, is not paying child support, and recently lost her 

housing. Mother’s “‘Psychological’ revealed that she is still a safety risk and not emotionally 

stable for reunification.” 

Considering this evidence as applied to the various Holley factors, we conclude the trial 

court could have formed a firm belief or conviction that it was in the children’s best interest that 

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Mother’s parental rights be terminated. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d 

at 25. The trial court, as factfinder, heard evidence that Mother was unable to meet the emotional 

and physical needs of her children, that she lacked the ability to provide them with a stable home, 

and that she failed to fully engage in the programs provided by the Department to regain custody 

of her children. Mother’s complaints related to the best interest finding are therefore overruled. 

CONCLUSION

The order of the trial court is affirmed.

 

Rebeca C. Martinez, Justice

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