in the Interest of C.F., Jr., K.F. and C.F., Children ( 2018 )

Affirmed and Opinion filed December 4, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00509-CV
IN THE INTEREST OF C.F., JR.; K.F.; AND C.F., CHILDREN
On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Cause No. 16-DCV-237456
OPINION
This accelerated appeal arises from a final decree in a suit in which
termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann.
§ 109.002(a-1) (West 2014 & Supp. 2018). The children are twins Chris and Kevin
and their younger brother, Charlie.1 The appellant is R.M. (Mother). The boys’ father
was incarcerated through the pendency of this case and is not a party on appeal. The
appellees are the Texas Department of Family and Protective Services (the
Department) and the boys’ aunt, F.M. (Aunt). After the Department abandoned its
1
We use pseudonyms or initials to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
request to terminate Mother’s parental rights, the trial court appointed Aunt as the
boys’ sole managing conservator. Mother was named a possessory conservator.
On appeal, Mother contends the trial court violated her right to counsel by
allowing her appointed lawyer to withdraw one day before trial, then abused its
discretion in denying her motion for continuance of the trial. Next, she challenges
the sufficiency of the evidence supporting termination, which we liberally construe
as a challenge to Aunt’s appointment as managing conservator. We conclude Mother
has not shown the trial court abused its discretion in granting the motion to withdraw
or in denying the continuance. We further conclude the trial court did not abuse its
discretion in appointing Aunt as the boys’ managing conservator. Therefore, we
affirm the trial court’s judgment.
BACKGROUND
A. Removal
Mother has eight children: three sons and five daughters. Her three sons are
the subject of this appeal. Chris and Kevin had just turned 13 and Charlie was 10
when this case began. The boys share one father (Father), and the girls share another.
The girls’ father was the boys’ de facto stepfather, and we refer to him as Stepfather
in this opinion.
In September 2016, the Department received a referral alleging negligent
supervision by Mother of all eight children. She and the children had been living for
eight months in a local women’s shelter, which was designed to provide three
months of temporary housing. She reportedly left the property for hours at a time,
leaving the children alone during her absence. The person who initiated the referral
also said Mother was not feeding the children on the weekend, which led to some of
the children to hoard food during the week. Two weeks later, the Department
received another referral alleging Mother left six of the eight children alone in her
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van in the shelter’s parking lot. The family had been ejected from the shelter. The
Department ruled it was unable to determine the allegations and referred the case to
Family Based Safety Services (FBSS).
The family moved into and were ejected from multiple shelters over the next
two months due to violating the shelters’ rules. Chris and Kevin reportedly
vandalized property at one shelter and trespassed at their school. Mother behaved
erratically, sometimes going out in public wearing only a towel.
After many attempts to help the family, the Department determined Mother
could not provide the children with a safe and suitable home, nor could any of the
relatives she identified as possible placements. The Department removed the
children on December 1, 2016. The next day, the Department filed its original
petition for protection of a child, for conservatorship, and for termination of parental
rights. The trial court signed an order of protection in an emergency naming the
Department as the children’s temporary managing conservator.
B. Appointment and withdrawal of counsel
The trial court appointed Kathy Johnson as Mother’s attorney ad litem on
December 2, 2016, the day suit was filed. Johnson filed a general denial on Mother’s
behalf.
The case was pending for seventeen months before trial. During that time, the
trial court typically held monthly hearings, some required by the Family Code and
others that the judge described as “informational hearings.” The record reflects
Johnson or her delegate appeared at every hearing relevant to Mother. Mother
appeared personally at a handful of those hearings.
On April 24, 2018, one week before trial, Johnson filed a motion to withdraw
as Mother’s counsel. The motion stated in relevant part:
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Good cause exists for withdrawal of Kathy L. Johnson as counsel, in
that she is unable to effectively represent [Mother] as [Mother] has
sought other counsel and does not want current counsel to represent her
on her case anymore.
A copy of this motion has been delivered to [Mother]. [Mother] is
hereby notified in writing of her right to object to this motion. [Mother]
has NOT consented to the motion as time is of the essence in filing this
motion due to trial being set for May 1, 2018.
The record does not contain a written response by Mother to the motion to withdraw.
The trial court held a hearing on Johnson’s motion to withdraw on April 30,
2018, the day before trial. Mother appeared at the hearing. Johnson explained that
on the evening of April 23, 2018, Mother sent Johnson an email or text message
indicating another lawyer would join Johnson in representing Mother and would call
Johnson in the morning. Johnson retrieved the message the morning of April 24,
2018. She tried to get in touch with the lawyer but was not successful until April 25,
2018, when the lawyer contacted her and said she would not represent Mother.
Johnson said this was the second time in the last month Mother had said she was
getting a new lawyer. The first time, Johnson said, the supposed new lawyer also
contacted her and said he would not represent Mother. Counsel for the Department
offered more information about the first lawyer, explaining he had called her and
appeared to be under the impression Mother had been proceeding pro se. The
Department’s lawyer had referred him to Johnson.
Johnson told the court:
[T]here is a lack of trust between my client and with me. There is a lack
of communication between the two of you [sic]. I have [not] been able
to do anything since last month to prepare for trial because I’m in a
limbo of whether an attorney takes over or not. I have been told by a
client that they want another attorney on board. So, I’m of the position
of not being able to prepare for a trial and I don’t think that I have
communication or trust with my client anymore to be able to go forward
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on this. Has nothing to do with the time frame or trying to delay trial.
That’s not my purpose. . . . [I]f we go forward and I’m not relieved on
this case, it’s going to be ineffective assistance of counsel on appeal
because there is not trust.
At the trial court’s instruction, Mother was sworn in. She and the trial court
had the following exchange:
The Court: Okay. Do you have a lawyer?
Mother: It was a potential lawyer I’m going to hire.
The Court: You had a couple of potential lawyers?
Mother: Yes, sir.
The Court: Were you aware they contacted Ms. Johnson to let her
know that they were I guess coming on or were going to
come on? Did you know that?
Mother: I have. Yes, I did.
...
The Court: You having a problem with Ms. Johnson?
Mother: No. She is wonderful. She’s great.
The Court: You just wanted to get another lawyer you thought?
Mother: Right.
The Court: Any questions, Ms. Johnson, for mom here?
Johnson: No questions, Judge. I have forwarded her everything
including the redacted files previously but I have a thumb
drive with everything I have on my files that I can hand
her today, [too]. I wish her the best. I wished I could help
her but there[’s] not a communication between the two of
us and I have nothing else.
The trial court orally granted Johnson’s motion to withdraw and cautioned
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Mother that trial would begin the following day:
[Mother], I expect you to be here tomorrow and if you don’t have
counsel, then, you’ll be pro se. I’m not saying that you purposely
decided to have problems or there were problems ongoing for the past
month or two but we’ve got a deadline and the deadline is the end of
May. So, we’re going to trial tomorrow with or without counsel from
your perspective. . . .
C. Trial
As the trial judge promised, trial was held the next day. Before testimony
began, the trial court questioned Mother about whether she engaged a lawyer:
The Court: And mom is here pro se. Did you get ahold of one of these
lawyers.
Mother: No, Your Honor. I want this case to go into continuance
because I need time to get counsel and if you can provide
me with one.
The Court: Yeah. Well, I had one provided for you and you chose to
get rid of her.
Mother: I didn’t get rid of her. She quit.
The Court: Excuse me, I’m talking right now. We’re not going to
delay this case so that you can figure that you’re going to
get some advantage. I gave you ever[y] opportunity. . . .
[Y]ou haven’t worked with Ms. Johnson according to the
testimony yesterday and you’ve talked to at least two
lawyers and neither one of them are here this morning. So,
you’re going to be here pro se.
The following witnesses testified: (1) Debbie Harris, the boys’
counselor/therapist; (2) Kristy Gutierrez, who conducted a forensic interview of the
boys concerning their outcry of physical abuse by Stepfather; (3) Daphne
McCadney, the Department conservatorship supervisor for the boys; (4) Dorothy
Milligan, the boys’ Court Appointed Special Advocate (CASA); (5) Aunt;
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(6) Mother’s sister, Teresa; and (7) Mother’s mother, Victoria. Mother did not
testify, and she called only Teresa and Victoria as witnesses.
The Department offered letters from each of the boys into evidence; the trial
court admitted them over Mother’s objection that the letters were not written in her
sons’ handwriting. Also admitted without objection was a DVD recording of the
forensic interview, photos from Aunt, print-outs of text messages between Mother
and Aunt, and the boys’ school records. Mother did not offer any exhibits.
1. Physical abuse by Stepfather, inappropriate sexual behavior
by Mother
Gutierrez interviewed each boy separately about physical abuse by Stepfather
and sexually inappropriate conduct by Mother. The interviews were conducted more
than a year after this case began but concerned pre-removal events. All three boys
confirmed the abuse and misconduct. Gutierrez testified about each boy’s disclosure
as follows:
Chris’s statements about Stepfather. Stepfather picked Chris up and threw
him down on the floor. Stepfather beat Chris with a stick. Stepfather caused Chris’s
head to hit the wall at least twice. Stepfather whipped Chris with a belt “pretty much
everywhere,” including his face and stomach. Stepfather kicked Chris in the face.
After one of Mother’s children disclosed to a teacher that the children were not
showering regularly, Stepfather kicked Chris in the stomach, stepped on his face,
and slapped him at least twice. Stepfather suffocated Chris by holding his head
against a pillow, preventing him from breathing. Stepfather threw a basketball at
Chris’s stomach. Once, Stepfather picked Chris up by the neck and slammed Chris’s
head against the wall so hard that Chris “saw God.” Mother was in the room and did
not try to stop the abuse. Chris lost consciousness. He woke up in a closet. Stepfather
once whipped Chris while Chris was naked. Stepfather abused only the boys; Chris
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never saw him abuse the girls, Stepfather’s biological children.
Kevin’s statements about Stepfather. Kevin said Stepfather was “cool at
first,” then began beating him and his brothers. From sometime in 2015 through the
middle of 2016, Stepfather beat Kevin and punched Kevin’s chest and stomach.
Mother was in the room during the abuse. Stepfather “whipped” Kevin’s eye so
badly that it bled and Kevin had to go to the hospital. Stepfather told Kevin to lie
and say he fell off his bike. Stepfather choked Kevin into unconsciousness. Like
Chris, Kevin regained consciousness in a closet. Stepfather threw Kevin around and
put his head through a wall. When Mother learned of any misbehavior by the boys
at school, she instructed Stepfather to whip them.
Charlie’s statements about Stepfather. Charlie talked “a little” about abuse
by Stepfather. He said Stepfather hit him and his brothers when Mother was gone.
Stepfather punched him in the chest “and stuff.” Charlie used to think Stepfather was
roughhousing, but at the time of the interview, he believed Stepfather’s behavior was
not “funny” or “cool.” Charlie seemed to believe Mother knew about the abuse.
The boys’ statements about Mother. While living in a shelter, Mother asked
Charlie to shave her pubic hair. He did so “because [he] didn’t know any better.”
Mother was lying down, naked, and talking on her phone while he shaved her. The
incident lasted about ten seconds. Chris and Kevin both heard Mother ask Charlie to
shave her. Charlie was uncomfortable describing the event to Gutierrez. All three
boys said Mother used to walk around naked.
2. Removal and the months following
In the weeks before removal, Chris and Kevin allegedly broke into their
school to take a shower. None of Mother’s eight children was being adequately fed,
and the three boys hoarded food to share with their younger sisters.
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The older boys behaved poorly and sometimes criminally. They reportedly
vandalized the inside of a church while temporarily living in the church’s homeless
shelter. At least one of the boys allegedly urinated on and smeared feces on the wall
of another shelter. The older boys were academically behind in school, and none of
them attended school regularly. The boys’ behavioral and academic problems
continued for several months after removal. Chris and Kevin reportedly stole articles
of clothing from their foster homes.
3. Life with Aunt
All three boys were placed with Aunt about six months after removal, and
they lived with her and her partner through the time of trial. By all accounts, the boys
flourished and thrived in Aunt’s care. They attended school regularly. Charlie’s
stated goal was to earn a place on the honor roll. Chris and Kevin both improved
academically and were being tutored in any subjects with which they struggled. Each
boy participated in several extracurricular activities, including football, basketball,
track, and theater. The boys were looking forward to playing soccer during their
summer vacation. The school reported no discipline or conduct problems for any of
the boys.
Aunt attends to the boys’ health and medical needs. Charlie suffers from a
gastrointestinal disease called short bowel syndrome. At the time of removal, he had
not seen a doctor for that disease in more than three years. His condition is treated
and well managed under Aunt’s care. He also has asthma that is controlled with
treatment. Chris and Kevin were prescribed eyeglasses after being placed with Aunt.
The boys have plenty of room at Aunt’s house. Chris and Kevin share a room;
Charlie sleeps in a separate room. Aunt was approved as a foster parent, so the boys
are eligible to receive funding through the foster program.
Aunt said the boys have very good character. McCadney described the boys’
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gratitude, saying, “They appreciate all things. They’re very mannerable and
engaging and any little thing you do for them, they just appreciate that.”
4. The boys’ desires
Chris and Kevin were 14 and Charlie was almost 12 at the time of trial. Harris
had been their therapist for about 10 months. During that period, she saw their self-
esteem improve greatly. She also noted the strong bond between the boys and Aunt
and other paternal relatives, family members with whom they did have a relationship
before being placed with Aunt.
Along with their progress, though, the boys experienced a significant amount
of stress about their visits with Mother, as well as their internal conflict as to whether
they wanted to live with Aunt or Mother. The boys’ emotions fluctuated after visiting
Mother, according to Harris, from anger to sadness to happiness to anxiety.
Chris and Kevin told both Harris and Aunt that they feared Stepfather. Aunt
testified their fear was the reason they wanted to stop visiting Mother. At Harris’
request, each boy wrote a letter to Mother during an individual therapy session
expressing his desires. The boys were separated when they wrote the letters so that
each boy’s thoughts would be independent. The letters are reprinted here:
Chris’s letter. “Hello Mom this is [Chris], I wrote this letter to tell you
how I feel and what I wanted to do. I wanna stay here because I feel
that this is a safe place for me. Im making good grades and, I am doing
good in all my classes. I haven’t got in trouble and [illegible]. They are
treating me very well. They aren’t bad people. They are just taking all
the pressure off of you. I like staying here going to a good school and I
would like to continue that. I have a lot of friends and I am experiencing
new things that I have never done before. I just wanted to tell you that
I would feel more comfortable if I stayed here and I would be more
safe. Sincerely, [Chris]. P.S. I want the visits [illegible] the case
because I feel uncomfortable and I don’t like when you tell me what
you want to do and what [illegible] not to do.”
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Kevin’s letter. “I wanna stay at my aunt’s house because there are alot
of opportunities for me over here. I want to see my mom after the CPS
case is over so there won’t be confusion. I want my sisters to be taken
care of. [Kevin]”
Charlie’s letter. “Why I Wanna Stay Here. Dear Mom, I don’t want go
home because, I wanna be in more comfortable place don’t get me
wrong mom I still love you I will always love you for sure. I also don’t
want to go home because I wanna be with my other side of the family
so hopefully you and [Aunt] or you and [Aunt’s partner] can working
something out so I can come see you. I love you mom and I hope you
are ok. Love, [Charlie]”
When asked if the boys were “still torn about what they wanted,” Harris
addressed Mother from the witness stand, saying:
In looking at their mom, ma’am, I want to say they are torn over this
because they really love you. I want you to know that, okay. Your kids
love you. Okay. And I want you to know that. All right. So, when they
wrote the letter, they were torn but they were looking at their future
needs and they wanted to make sure they put those needs before their
desires that was in their heart. So, they had to make a decision based on
what they had been through and based on the things that they have gone
through with their aunt which was absolutely different from what they
had gone through when they were with their mom, is what they stated
in the session. So, they wanted a life that would give them more
stability.
Milligan served as the boys’ CASA for about a year before trial. She felt she
shared a rapport with them. She testified Chris has “always been adamant about
staying with [Aunt].” Kevin and Charlie initially told her they wanted to return to
Mother, and that was their position until three weeks before trial. At that time,
though, they both decided they wanted to stay with Aunt. All three boys said they
did not want to return to Mother if Stepfather would be present as well.
McCadney, the Department supervisor, echoed Harris’s and Milligan’s
recounting of the boys’ desires. She said the boys were “very vocal” about wanting
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to stay with Aunt, something McCadney described as “rare”:
One of the things that I mentioned earlier was how the boys felt it was
important for the agency to know their desires and having conversations
with them on at least two or three occasions. Never inquiring about this,
because I don’t ask children where you want to live and things like that
because we’re going to make decisions about their care based off of the
information that we receive but they were very vocal, have been vocal
to anyone that asks. They want to stay where they are and that’s rare
and in my 21 years, we’ve probably had a handful of cases where
children have been so definitive and it’s because they’re directly related
to how safe they’re going to feel and what they feel about their well
being. They make it real clear. . . .
5. Plans for the future
McCadney testified Stepfather was one of the “barriers” to the boys’ return to
Mother. She described them as “very terrified” of him. A few weeks before trial, the
boys, through their attorney ad litem, applied for and obtained a protective order
against Stepfather.2 When asked if the protective order might alleviate the
Department’s concern about Stepfather, McCadney expressed doubt:
From reviewing the history of this case, [Stepfather] does not stay away
2
The protective order does not appear in the appellate record, but the trial judge described it on
the record:
. . . [F]or purposes of the record, about a week, ten days ago, something like that,
we had a hearing on a protective order with the three boys being the individuals
that were seeking a protective order. They were the applicants by . . . their attorney
ad litem and a protective order was granted against [Stepfather]. [Stepfather] could
not be around the boys -- well, at all, but particularly at mom’s house; and, anyway,
that protective order is a different case number but a certified copy of that order, I
ordered to be filed in both this case involving the . . . boys, as well as the case
involving the . . . girls . . . .
Further, the judgment states in relevant part:
The children the subject of this suit have a protective order against [Stepfather] in
Cause No. 18-DCV-250361. Therefore, IT IS ORDERED that the terms and
provisions of the protective order will control the periods of possession and access
to the children by both [Mother] and [Father]. Therefore, [Aunt], [Mother] and
[Father] shall ensure that [Stepfather] shall not be within 200-yards of the boys or
otherwise violate the terms and conditions of the protective order.
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from [Mother] very long. [Stepfather] has a pretty significant criminal
history. I don’t know if a protective order could keep [Stepfather] away
from [the girls]. That’s his family. So, it’s great in theory but I don’t
know if it would be enforced.
Harris believed the boys’ best interests would be served by living with Aunt
and having no further contact with Stepfather. Milligan believed making Aunt the
boys’ permanent managing conservator was in their best interest.
Aunt testified she and her partner are prepared to protect the boys from
Stepfather. Aunt believes it is important for the boys to maintain a relationship with
Mother. She intends to work with Mother to foster that relationship. She noted she
has always been the one to reach out to Mother about visitation; Mother has not
initiated contact.
6. Evidence about Mother
Department history. The Department found reason to believe Mother
exhibited inappropriate discipline in March 2010 by striking twins Chris and Kevin,
then six years old, with a broom handle. She caused injuries to vital (face) and non-
vital (arm) areas of both boys’ bodies. Charlie was not hurt but was at risk. Six
months later, one of the twins was observed with a “minor injury to a vital body
area” and made an outcry that Mother had punched him in the face on numerous
occasions. The Department was unable to determine the validity of those allegations.
Several more referrals were made over the next six years alleging physical abuse and
negligent supervision by Mother; the Department ruled them all out.
Criminal history. The record reflects Mother has no criminal history except
for two traffic offenses, both in 2010.
Testimony from Mother’s sister. Teresa testified Mother is “a great mother”
who has never abused her children and never let anyone harm her children. However,
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she testified she did not know about the two Department investigations in 2010 nor
any of the 2016 events leading to removal. She believed Mother deserves to have
the boys returned to her care. Teresa described Stepfather as “a good guy” who
“stands up for himself” and “talk[s] for himself.” She said she did not know
Stepfather’s extensive criminal history, including deferred adjudications or
convictions for driving while intoxicated, possession of controlled substances, and
at least five assaults causing bodily injury. Teresa did not believe Stepfather abused
the boys; instead she believed the boys were coached to say he did.
Testimony from Mother’s mother. Victoria supported the return of the boys
to Mother. She said Mother does not drink or smoke, is not violent, is employed and
can provide for her children, and teaches them well.
7. Trial court’s findings
After closing arguments, the trial judge announced he would take the matter
under advisement and would review his notes, the case file, and “the reports that
have been done over the past year and a half . . . .” The judgment was signed three
weeks later. It recites the court’s findings that it is in the boys’ best interest for Aunt
to be their sole managing conservator and for Mother to be a possessory conservator.
The judgment also states:
Stepfather “has a history or pattern of committing family violence
during the two-year period preceding the filing of this suit or during the
pendency of this suit,” and Stepfather “would endanger the children’s
physical health or emotional welfare.” The children of this suit have a
protective order against [Stepfather] in Cause No. 18-DCV-250361.
The judgment discontinues the Department’s managing conservatorship of the boys,
appoints Aunt as the non-parent sole managing conservator, and appoints Mother
and Father as possessory conservators of the boys.
At the hearing on entry of judgment, the trial court emphasized the risk Mother
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ran of allowing Stepfather to have contact with the boys in the future:
[Mother], . . . I want to make sure that we understand one another. . . .
[Y]our boys are not fans of [Stepfather] nor am I and I want you to
understand that if [Stepfather] comes back in your life, you’re going to
be responsible for keeping these boys away from [Stepfather] and if
you don’t do that, you’re not going to go to jail. [Stepfather] can go to
jail over it but you could lose contact with your boys if [Stepfather] is
around these boys. I just, I mean, that’s the down side of [Stepfather]
being part of your life, even though he’s the parent of your five
daughters . . . .
Mother timely appealed.
ANALYSIS
I. Counsel and Continuance
In her first issue, Mother contends the trial court violated her right to counsel
when it granted her appointed lawyer’s motion to withdraw. Then, she asserts, the
trial court abused its discretion in denying her motion for a continuance of trial. We
review both decisions for an abuse of discretion. In re Marriage of Harrison, 557
S.W.3d 99, 112 (Tex. App.—Houston [14th Dist.] 2018, no pet. h.). We may not
overrule the decision unless the trial court acted unreasonably or in an arbitrary
manner, without reference to guiding principles. Id.
A. Counsel
In termination suits filed by a governmental entity, the trial court “shall
appoint an attorney ad litem to represent the interests of: (1) an indigent parent of
the child who responds in opposition to the termination . . . . ” Tex. Fam. Code Ann.
§ 107.013(a)(1). See also In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010)
(recognizing indigent parents are entitled to appointed counsel in parental rights
termination cases); In re S.R., 452 S.W.3d 351, 371 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied) (same).
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The trial court appointed an attorney ad litem to represent Mother’s interests
on the day suit was filed. That lawyer, Johnson, continuously represented Mother
for 17 months. Mother does not contend the trial court deprived her of her right to
counsel during that period. Instead, she suggests the trial court’s eleventh-hour
granting of Johnson’s motion to withdraw violated Mother’s right to counsel.
Johnson filed a motion to withdraw one week before trial based on
communication from Mother the previous night suggesting Mother wanted a
different lawyer. According to Johnson and counsel for the Department, Mother had
done something similar within the past month. Mother’s sworn statements at the
hearing indicate she indeed contacted two lawyers to replace Johnson, both of whom
declined to represent Mother. There is no suggestion in the record that Johnson
would have sought to withdraw had Mother not communicated her desire to replace
Johnson. The timing of Johnson’s motion to withdraw was based entirely on
Mother’s timing in telling Johnson she wanted a new lawyer.
Mother did not file a written response to the motion to withdraw in the six
days between when the motion was filed and when it was heard. Nor did Mother
express any opposition to withdrawal at the hearing. To the contrary, she told the
trial court Johnson was “wonderful” and “great,” but she wanted a new lawyer.
Mother did not ask the trial court during the hearing to appoint her a new lawyer—
she implied she would retain one herself. She did not ask for appointed counsel until
the day of trial.
The trial court was uniquely familiar with the history and personalities in this
case. The court was free to consider both in deciding whether to permit Johnson to
withdraw. See Harrison, 557 S.W.3d at 119. Under these circumstances, we cannot
say the trial court abused its discretion in granting Johnson’s motion to withdraw.
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B. Continuance
Texas Rule of Civil Procedure 251 governs motions for continuance. A
motion for continuance shall not be granted without “sufficient cause supported by
affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251.
Accordingly, motions for continuance generally must be in writing, state the specific
facts supporting the motion, and be verified or supported by an affidavit. Harrison,
557 S.W.3d at 117. When a motion for continuance does not comply with the rules—
for example, when the motion is unwritten or unsupported by verified facts—
appellate courts generally presume the trial judge did not abuse its discretion in
denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see also
In re S.M.H., 523 S.W.3d 783, 797 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Oral requests for a continuance do not preserve error. Harrison, 557 S.W.3d at 117.
Mother did not file a written motion for continuance. Her oral request on the
day of trial is insufficient to preserve error for our review. See id. at 118 (concluding
trial court did not abuse its discretion in denying pro se litigant’s motion for
continuance when record did not contain written, verified motion); see also D.F. v.
State, 525 S.W.2d 933, 941 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d
n.r.e.) (concluding trial court did not abuse its discretion in denying continuance
even though counsel withdrew only one day before trial when appellant failed to file
written motion for continuance pointing out sufficient cause supported by affidavit;
instead, only unsworn oral motion for continuance urged on day of trial).
Even assuming Mother’s oral request was sufficient to preserve error, we
would conclude the trial court did not abuse its discretion in denying a continuance.
When, as alleged here, the ground for a continuance is the withdrawal of counsel,
the movant must demonstrate the failure to be represented at trial was not due to her
own fault or negligence. Villegas, 711 S.W.2d at 626; Harrison, 557 S.W.3d at 117.
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The “absence of counsel will not be good cause for a continuance or postponement
of the cause when called for trial, except it be allowed in the discretion of the court,
upon cause shown or upon matters within the knowledge or information of the judge
to be stated on the record.” Tex. R. Civ. P. 253.
The only basis for withdrawal stated in Johnson’s motion is that Mother
wanted a new lawyer. Mother did not disagree with that basis; she confirmed she
wanted a new lawyer even though she thought Johnson was “wonderful.” Mother
has not satisfied her burden to show that her failure to be represented at trial was not
due to her own fault or negligence.
We overrule Mother’s first issue.
II. Managing conservatorship
Mother next asserts the trial court erred in terminating her parental rights. The
trial court did not terminate her rights. As both the Department and Aunt did in their
appellate briefs, we liberally construe Mother’s issue to challenge the trial court’s
appointment of Aunt as the boys’ managing conservator. See Tex. R. App. P. 38.9
(“Because briefs are meant to acquaint the court with the issues in a case and to
present argument that will enable the court to decide the case, substantial compliance
with this rule is sufficient, subject to” exceptions not relevant in this case.).
A. Legal standards
A managing conservator is the person or entity who, by court order, has been
awarded custody of a child and may determine the child’s primary residence. See
Tex. Fam. Code Ann. § 153.371(1); In re C.A.M.M., 243 S.W.3d 211, 215 n.7 (Tex.
App.—Houston [14th Dist.] 2007, no pet). The managing conservator has nearly
sole authority to make decisions for the child. See Tex. Fam. Code Ann.
§ 153.371(2)-(11). A managing conservator must be (1) a parent, (2) a competent
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adult, (3) the Department, or (4) a licensed child-placing agency. Id. § 153.005(a).
Texas courts employ the “parental presumption”—that is, they presume a
child’s best interest is served by remaining with the child’s natural parent. Id.
§ 153.131(a) (West 2014); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.
1990). That presumption is “deeply embedded in Texas law” and “based upon the
natural affection usually flowing between parent and child.” In re V.L.K., 24 S.W.3d
338, 341 (Tex. 2000). The trial court is required to appoint the parents as joint
managing conservators unless it finds (1) appointment of one or both parents as
managing conservator would significantly impair the child’s health or development;
or (2) there is a history of family violence involving the child’s parents. Tex. Fam.
Code Ann. § 153.131(a), (b). The party seeking appointment of a non-parent as
managing conservator bears the burden to rebut the parental presumption. In re K.S.,
492 S.W.3d 419, 427 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
The best interest of the child shall always be the primary consideration of the
court in determining conservatorship, possession, and access. See id. § 153.002.
Prompt and permanent placement of the child in a safe environment is presumed to
be in the child’s best interest. Id. § 263.307(a). Courts may consider the following
non-exclusive factors to determine the child’s best interest: the child’s desires; the
child’s current and future physical and emotional needs; current and future
emotional and physical danger to the child; parental abilities of the persons seeking
custody; programs available to assist those persons seeking custody to promote the
best interest of the child; plans for the child by the individuals or agency seeking
custody; stability of the home or proposed placement; acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and any
excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976). As noted, this list of factors is not exhaustive, and evidence is not
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required on all the factors to support a finding that termination is in the child’s best
interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.).
We review conservatorship orders for an abuse of discretion. In re R.T.K., 324
S.W.3d 896, 899 (Tex. App.–Houston [14th Dist.] 2010, pet. denied). A court acts
within its discretion as long as there is “some evidence of a substantive and probative
character” to support its decision on conservatorship. K.S., 492 S.W.3d at 426. That
discretion includes basing a decision on conflicting evidence. In re M.M.M., 307
S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.) (citing In re Barber, 982
S.W.2d 364, 366 (Tex. 1998)). A court abuses its discretion when it acts
unreasonably, arbitrarily, or without reference to guiding principles. R.T.K., 324
S.W.3d at 899. Conservatorship determinations are governed by a preponderance-
of-the-evidence standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). In this
context, legal and factual sufficiency challenges are not independent grounds of
error; rather, they are factors to be considered in determining whether the trial court
abused its discretion. K.S., 492 S.W.3d at 426.
B. Application
Aunt is eligible to be the boys’ managing conservator if she is a “competent
adult.” Tex. Fam. Code Ann. § 153.005(a). The record amply supports a finding that
Aunt is a competent adult, and Mother does not suggest otherwise.
1. Parental presumption was rebutted
Due to the parental presumption, the trial court was required to appoint
Mother as the boys’ managing conservator unless it found that (1) appointment of
Mother as managing conservator would significantly impair the boys’ health or
development; or (2) there is a history of family violence involving Mother. Id.
§ 153.131(a), (b). “Family violence” includes abuse by a member of a family or
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household toward a child of the family or household. Id. § 71.004(2). “Abuse”
includes a “physical injury that results in substantial harm to the child, or the genuine
threat of substantial harm from physical injury to the child . . . .” Id. § 261.001(1)(C).
In determining whether there is credible evidence of a history or pattern of past or
present child neglect or abuse or family violence by a parent or other person, the
court shall consider whether a protective order was rendered against the parent or
other person during the two-year period preceding the filing of the suit or during the
pendency of the suit. Id. § 153.004(f).
The judgement recites that Stepfather “would endanger the boys’ physical
health or emotional welfare,” but it makes no such finding regarding Mother.
However, the judgment states two findings regarding family violence:
 Stepfather “has a history or pattern of committing family violence
during the two-year period preceding the filing of this suit or during the
pendency of this suit.”
 The boys “have a protective order against [Stepfather] in Cause No. 18-
DCV-250361.
The trial court heard evidence that all three boys told the forensic interviewer that
Mother knew about Stepfather’s abuse. The judge’s admonition to Mother at the
hearing on entry of judgment makes clear he believed Mother to be “involved” in
the family violence by Stepfather. The record supports a finding that there is a history
of family violence involving Mother. Therefore, the parental presumption was
rebutted.
2. No abuse of discretion in appointing Aunt as managing
conservator
If there is “some evidence of a substantive and probative character” to support
the trial court’s decision to appoint Aunt as managing conservator, we must conclude
the court did not abuse its discretion in that appointment. K.S., 492 S.W.3d at 426.
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The vast majority of the evidence supports Aunt’s appointment.
Chris and Kevin greatly improved behaviorally, academically, socially, and
psychologically while in Aunt’s care. Though Charlie did not demonstrate
behavioral or academic problems before removal, he also progressed socially and
psychologically. Chris consistently expressed a desire to live with Aunt over Mother.
Kevin and Charlie vacillated as to where they wanted to live and ultimately decided
they preferred Aunt. All three boys feared Stepfather, and their fear caused them
anxiety and stress at the prospect of even visiting Mother, let alone living with her.
The Department supervisor assigned to the case, the boys’ therapist, and their
guardian ad litem each believed it was in the boys’ best interest to live with Aunt.
We conclude the trial court did not abuse its discretion in appointing Aunt to
be the boys’ managing conservator. We overrule Mother’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Busby, Brown, and Wise.
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