in the Matter of the Guardianship of Bryan Rombough, an Incapacitated Person ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00181-CV
IN THE MATTER OF THE
GUARDIANSHIP OF BRYAN
ROMBOUGH, AN INCAPACITATED
PERSON
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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
A probate court appointed Appellee Texas Department of Aging and
Disability Services (TDADS) as guardian of the person of Bryan Rombough, an
incapacitated person. His mother, Appellant Shirley Rombough, brings this
appeal from that order. Because we hold that the probate court did not abuse its
discretion by appointing TDADS as Bryan’s permanent guardian of the person,
we affirm the probate court’s order.
1
See Tex. R. App. P. 47.4.
Background
On February 3, 2010, the Department of Family and Protective Services
filed a petition for protection of a disabled person in an emergency in which it
requested the court to appoint an attorney ad litem for Bryan, a TDADS client.
The department further requested that the court order Bryan’s removal to a care
facility. It alleged that he was suffering from abuse or neglect presenting a threat
to life or physical safety. The petition stated that Bryan, a thirty-year-old man,
suffered from moderate mental retardation, type II diabetes, and thyroid
problems. It alleged that he had called 911 over a hundred times in the past
year, had been found wandering outside and looking in neighbors’ windows, and
had had multiple hospitalizations in the past twelve weeks. The department
asserted that Bryan’s father, Terry Rombough, had continually left him alone and
unattended, had not provided a diabetic meal plan for him, and did not give him
his medications as prescribed. The department stated that it had received three
previous referrals regarding Bryan.
The department further alleged that a TDADS employee had gone to
Bryan’s home on February 2, 2010, to check on him, and upon the employee’s
arrival, Bryan told her that he did not feel well, wanted to go to the hospital, and
did not want to remain with his father. Paramedics checked Bryan’s blood sugar
level and found it to be elevated. TDADS removed Bryan at that time.
The probate court appointed Appellee Robert M. Brownrigg as Bryan’s
guardian ad litem and Sharon Gabert as Bryan’s attorney ad litem. On February
2
5, 2010, Brownrigg filed an application to have TDADS or, alternatively, any
suitable person appointed as temporary guardian of the person for Bryan.
Brownrigg also requested the probate court to make the appointment permanent.
In explaining why Bryan’s parents were not suitable, Brownrigg stated that Terry
had been the primary caretaker for Bryan and had repeatedly failed and refused
to properly supervise him and that Appellant had actual knowledge that Terry had
failed and refused to properly supervise Bryan. The probate court granted the
application for temporary guardianship of the person over Bryan and ordered that
TDADS be appointed.
Appellant contested the application for permanent guardianship, objecting
to the appointment of TDADS as guardian and requested that she be appointed
instead. Brownrigg filed a motion for security for costs. The probate court
granted the motion and ordered Appellant to give security for probable costs in
the amount of $5,000 by June 4, 2010. Brownrigg subsequently filed a motion
for additional security for costs. In response, Appellant filed an affidavit of
inability to pay or give security for costs. After a hearing, the probate court
granted Brownrigg’s motion for additional security and ordered Appellant to give
additional security in the amount of $10,000 on or before January 31, 2011, at
4:30 p.m. The order stated that if Appellant did not file the additional security by
that time, Appellant’s “pleadings are dismissed as of the time and date of said
deadline.”
3
On January 11, 2011, Appellant filed a motion for continuance, asserting
the need to take the deposition of several witnesses. On January 14, 2011,
Appellant’s attorneys Thomas F. Dunn and Robert Courtney both filed separate
motions to withdraw. The probate court granted Courtney’s motion on January
21 and Dunn’s motion on January 26.
On January 21, 2011, an associate judge held a hearing on Appellant’s
affidavit of indigence. The judge dismissed the affidavit at the conclusion of the
hearing, finding that Appellant was not indigent “because she has [an] admitted
income of $7,000.00 per month.” Appellant appealed the ruling, and the probate
court set a hearing for February 3, 2011.
Also on January 21, Appellant filed an amended motion for a continuance
asserting that she was “not able to withstand the rigors of a two day or longer
hearing due to her need for spinal treatment and surgery.” She alleged that she
was to undergo surgery at some point in the future and would be able to give the
court documentation of the surgery after a January 24 doctor’s appointment.
Appellant also asserted her intention to take the depositions of witnesses due to
previously scheduled depositions being postponed “in part due to the
hospitalization of one of the witnesses,” though she did not specify which witness
or what information she hoped to obtain from the witness. She also asserted the
need to have “additional potential evidence of abuse and diseases” relating to
Bryan’s medications “which need to be evaluated by experts.” She asked that
the hearing on the motion for permanent guardianship, which had been set for
4
February 8 and 9, be continued and rescheduled. The motion was not supported
by an affidavit.2
On February 3, after consideration of Appellant’s motion for continuance
and on its own motion in light of inclement weather, the probate court continued
the hearing on Appellant’s affidavit of indigence until February 8, 2011, at 9:30
a.m., “with a trial on the merits to be held shortly thereafter unless one of
[Appellant’s] motions for continuance is granted.” Also on February 3, Appellant
filed a second motion for continuance stating that her doctor had scheduled her
for surgery on February 8. She also asserted that she would be unable to hire
new representation because “[n]o one will accept employment at this stage of the
case.”
On the morning of the February 8 hearing, Appellant filed a supplemental
motion for continuance, asserting that she was at that time in the hospital
awaiting surgery. The probate court held the hearing as scheduled, first
addressing Appellant’s affidavit of indigence. Brownrigg argued that Appellant’s
affidavit was defective on its face because Appellant stated in the affidavit that
she had an income of $84,000 a year and her listed expenses, such as Internet
and cable, cell phone, and twice-a-month travel to and from Arlington, Texas,
were optional expenses. Brownrigg stated that Appellant did not have a
constitutional right to Internet or cell phone service or to travel a certain number
2
See Tex. R. Civ. P. 251 (providing that no continuance shall be granted
“except for sufficient cause supported by affidavit”).
5
of times. Brownrigg also stated that she claimed a homestead in a condominium
that she was renting out at an amount that was less than her asserted costs for
the unit. The probate court found that Appellant was not indigent and stated that
Appellant’s pleadings “either by operation of law or by my finding as of this
moment, are all stricken.”
The probate court then proceeded to hear the application for guardianship.
Brownrigg called Denise Buchan, the court visitor program manager, and
Jennifer Cross, a guardianship specialist with TDADS, to testify. At the
conclusion of the hearing, the probate court granted the application for
guardianship and appointed TDADS as permanent guardian of the person of
Bryan.
Appellant filed a motion for new trial. She asserted that she had been
unavailable for trial on February 8 for health reasons and that the evidence was
legally insufficient to support the probate court’s order. She further asserted that
the probate court erred by ordering her to pay $10,000 in costs and for ordering it
be paid by January 31. The probate court denied the motion, and Appellant filed
this appeal.
Analysis
Appellant lists fifteen questions in her “Issues Presented” section, but
some of the “issues” are abstract questions or are fact questions rather than legal
6
issues or points.3 Furthermore, some of the issues are not argued or even
referenced elsewhere in Appellant’s brief. We shall address the issues that are
discussed either in the arguments section of her brief or in her statement of
facts.4 Appellant’s second, fourth, seventh, eighth, ninth, eleventh, and twelfth
issues are waived as inadequately briefed.5
In Appellant’s first and fifth issues, she argues that the probate court erred
by denying her motion for continuance because the court knew that she was
undergoing a medical procedure at the time of trial and therefore should have
granted the continuance. A trial court does not abuse its discretion by denying a
motion for continuance simply because a party is unable to be present at trial. 6 A
party must show both a reasonable excuse for not being present and that the
party was prejudiced by his or her absence.7
3
For example, Appellant’s seventh “issue” asks, “Does [I]nternet and
telephone service cost $10,000 per month?”
4
But see Tex. R. App. P. 38.1(g) (“The brief must state concisely and
without argument the facts pertinent to the issues or points presented.”)
(emphasis added).
5
See Tex. R. App. P. 38.1(i); Gray v. Nash, 259 S.W.3d 286, 294 (Tex.
App.—Fort Worth 2008, pet. denied) (deciding that issues were waived because
of inadequate briefing).
6
One 1984 Ford, VIN No. 1FABP43F7EZ116686 v. State, 698 S.W.2d 279,
282 (Tex. App.—Fort Worth 1985, no writ).
7
Erback v. Donald, 170 S.W.2d 289, 291–92 (Tex. Civ. App.—Fort Worth
1943, writ ref’d w.o.m.).
7
Illness can constitute a reasonable excuse,8 but no evidence before the
probate court suggested that Appellant did not know of the hearing date when
she scheduled her surgery or that Appellant’s medical procedure was due to an
emergency and could not be rescheduled. Appellant provided the court with a
letter from her doctor, dated February 2, 2011, stating that Appellant’s surgery
had been scheduled for February 8, but nothing in the letter suggested that the
surgery was an emergency that could not be postponed until after the hearing.
Furthermore, the letter did not meet the requirements of an affidavit 9 and did not
show or suggest that Appellant could not be present at the hearing without
endangering her health.10
Furthermore, even if Appellant’s apparent choice to have surgery on the
day of the hearing constituted an illness excusing her presence, she does not
make any argument about how she was prejudiced by her absence. Appellant
8
See Burke v. Scott, 410 S.W.2d 826, 828 (Tex. Civ. App.—Austin 1967,
writ ref’d n.r.e.).
9
See Tex. R. Civ. P. 251; Olivares v. State, 693 S.W.2d 486, 490 (Tex.
App.—San Antonio 1985, writ dism’d) (stating that “[w]hile appellant did attach
his own affidavit of the facts, he had no supporting affidavit from medical
personnel stating it was impossible, from a medical standpoint, for him to appear
in court”); see also Morrison v. Cogdell, No. 2-02-00261-CV, 2003 WL 21476243,
at *2 (Tex. App.—Fort Worth June 26, 2003, no pet.) (mem. op.) (stating that
letters from the appellant’s doctors were not sufficient to warrant a continuance).
10
Cf. Burke, 410 S.W.2d at 828 (reciting evidence showing that the
appellant was so ill that he was physically and mentally unable to undertake his
defense and that a key witness had suffered a heart attack and was confined to
his home and holding that the trial court should have granted the appellant’s
motion for continuance).
8
did not argue in the probate court and does not argue in this court about what
evidence she would have submitted at the hearing had she been there or any
objections to evidence she would have made, or how she was otherwise
prejudiced by not being present. And we note that the probate court took notice
of Bryan’s expressed preference to have his mother made his guardian, and
Bryan’s attorney ad litem cross-examined Buchan about why she did not
recommend that Appellant be made Bryan’s guardian and objected to the
admission of some of Brownrigg’s evidence. Appellant does not argue what
more she would have or could have done if she had been present.
Appellant also asserts that her attorney “abandoned her essentially hours
before the final hearing.” But in fact her attorneys’ motions to withdraw, filed on
January 14, 2011, were granted on January 21 and 26, considerably more than
“hours” before the February 8 hearing date. And if Appellant wished to rely on
the absence of counsel to establish grounds for a continuance, she needed to
show that her failure to be represented at trial was not due to her own fault or
negligence.11 She made no such showing. We overrule Appellant’s first and fifth
issues.
Appellant argues in her third issue that the probate court’s denial of her
motion for continuance on the ground that she did not present “detailed medical
affidavits and records” was a violation of her constitutional right to privacy.
11
See State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984).
9
Appellant has not pointed this court to any place in the record that shows that the
probate court denied her motion for continuance on the ground that she refused
to provide detailed medical affidavits and records. She does direct the court to a
page from the reporter’s record showing that the probate court stated that the
hearing would proceed without her as scheduled because Appellant had “been
given proper notice” and “the Court has not received anything that would
constitute good cause in the form of any kind of official medical information that
she indeed is scheduled for surgery.” But this remark does not indicate that the
probate court ordered her to provide detailed medical records in violation of a
constitutional right to privacy or that the court denied her motion because of her
refusal to comply. Rather, the context in which the probate court made the
statement after discussion with the attorneys present at the hearing shows that
the probate court proceeded in Appellant’s absence because it believed that she
had adequate notice of the hearing and that, rather than her absence being
caused by an emergency, Appellant had chosen to schedule her surgery for that
day. Accordingly, we overrule Appellant’s third issue.
In Appellant’s tenth issue, she argues that the probate court abused its
discretion when it denied her affidavit of indigence. She contends that her
affidavit of indigence was uncontradicted. We agree that although her affidavit of
indigence was contested, her affidavit was uncontradicted. But this argument
does not help Appellant because not only did Brownrigg not contradict the figures
set out in Appellant’s affidavit, he relied on them to argue that Appellant was not
10
indigent. In other words, Appellant’s uncontradicted affidavit of indigence
established that she was in fact not indigent. The probate court agreed with
Brownrigg, finding that Appellant was not indigent “because she has [an]
admitted income of $7,000 per month, and the expenses described in [her
affidavit of indigence] are elective, discretionary expenditures of disposable
income.”
A party who is unable to afford costs may file an affidavit of indigence in
lieu of paying or giving security for costs.12 Rule 145 of the rules of civil
procedure defines a “party who is unable to afford costs” as a person who either
(1) is “presently receiving a governmental entitlement based on indigency” or (2)
“has no ability to pay costs.”13 Appellant made no assertion that she is receiving
a government entitlement based on indigency. To otherwise show that she had
no ability to pay costs, Appellant had the burden to establish by a preponderance
of the evidence that she would be unable to pay the costs or give security for
them if she really wanted to and if she made a good-faith effort to do so.14 In
12
Tex. R. Civ. P. 145(a).
13
Id.
14
See Pinchback v. Hockless, 139 Tex. 536, 539, 164 S.W.2d 19, 20
(1942).
11
determining whether a party has the ability to pay costs, a court must look to the
facts as a whole.15
Appellant asserted in her affidavit that she has a monthly income of
$7,000. She claimed expenses of $6,754 a month, but a number of these
expenses are, as Brownrigg pointed out, optional. For example, Appellant
asserted that she pays $924 a month for personal travel between McAllen and
Dallas, $168 a month for a cell phone service plan, and $180 a month for cable
and Internet service. Appellant was able to obtain loans for both her vehicle and
for her condominium.16 Thus, Appellant’s own affidavit shows that she is not
indigent. Appellant points to no other evidence in the record to establish her
indigency.17 Considering the record, we cannot say that the probate court
abused its discretion18 by sustaining Brownrigg’s contest to Appellant’s assertion
of indigence.
15
Id.; Thomas v. Thomas, 852 S.W.2d 31, 36–37 (Tex. App.—Waco 1993,
no writ).
16
See Pinchback, 164 S.W.2d at 20 (stating that “if a party has a credit
rating that will enable him to borrow the money, . . . he should be required to pay
the costs, or give security therefor”).
17
See id. (stating that when a party files an affidavit of indigence and it is
contested, the burden of proof is on the applicant).
18
See Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio
2009, no pet.) (applying abuse of discretion standard to a trial court’s
determination of a contest to an affidavit of indigence).
12
Appellant asserts that Brownrigg’s statements about her condominium and
her right to a cell phone and Internet service were unsworn and therefore not
competent evidence. But Brownrigg’s statements were argument, not evidence.
He merely made those statements in arguing that, on its face, the affidavit was
defective.
Appellant further argues that Brownrigg did not establish that he was
competent to opine about the real estate market. But Brownrigg did not offer an
opinion about the real estate market. Instead, he simply pointed out that
Appellant’s own affidavit showed that she was renting out her condominium at an
amount that did not cover the expenses that she listed for the unit. Thus,
Appellant’s affidavit on its face shows that she is renting out her condominium at
a loss, just as Brownrigg stated to the probate court.
Appellant also argues that Brownrigg implied that she was voluntarily
spending $10,000 a month on Internet and cell phone service rather than
depositing $10,000 into the registry of the court. A review of the record shows
that Brownrigg made no such argument, expressly or by implication. He merely
pointed out that Appellant had listed expenses for Internet service and cell phone
service and argued that these expenses were optional. We overrule Appellant’s
tenth issue.
In Appellant’s sixth issue, she argues that the probate court erred by not
permitting her to make the required $10,000 deposit or in failing to provide her
sufficient time in which to do so. But Appellant has not directed this court to any
13
place in the record showing that the probate court refused to allow her to pay the
$10,000 security for costs before striking her pleadings. And although Appellant
claims she was not given sufficient time to provide the security for costs, the
record does not support her complaint.
Rule 143 of the rules of civil procedure provides that if a probate court
orders a party to provide security for costs and the party fails to comply “on or
before twenty (20) days after notice that such rule has been entered,” then that
party’s claims for affirmative relief “shall be dismissed.”19 The probate court
signed the order requiring Appellant to provide security for $10,000 in costs on
January 11, 2011, and her then-attorney approved it as to form, indicating that he
at least had knowledge of the order. And Appellant does not claim that she did
not receive notice of the order. The probate court dismissed her petition for
failure to provide the security on February 8, 2011, more than twenty days after
the date that the probate court signed its order and that Appellant’s attorney
approved it as to form. By rule, the probate court provided Appellant sufficient
time to provide the required security. Appellant did not ask the probate court for
additional time to provide the security.20 Nor did Appellant provide the probate
19
Tex. R. Civ. P. 143.
20
See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982) (holding that the
Clantons’ due process rights were not violated by the dismissal of their claims for
failure to file security within twenty days of receipt of notice to do so and noting
that they took no action prior to the dismissal to secure an extension to give
security).
14
court with any reason why she could not provide security within that time other
than her affidavit of indigence, and this court has held that the probate court
properly dismissed that affidavit. Finally, Appellant made no argument to the
probate court (and makes none in this court) about why she needed more time.
Accordingly, we overrule this issue.
In Appellant’s thirteenth issue, she asserts that the probate court abused
its discretion by basing its decision on no evidence. In her fourteenth issue, she
argues that the probate court abused its discretion by basing its decision on
insufficient evidence.
The nearest kin of an unmarried proposed ward is entitled to the
guardianship if that person is eligible.21 But the probate code also requires the
probate court to appoint a guardian for a person other than a minor “according to
the circumstances and considering the best interests of the ward.”22 The code
further provides that a person may not be appointed guardian if that person is
found unsuitable by the court.23 Thus, if the evidence supported the probate
court’s finding that Appellant was not suitable as Bryan’s guardian or that
Appellant’s appointment as Bryan’s guardian of the person was not in his best
21
Tex. Prob. Code Ann. § 677(a) (West 2003).
22
Id.
23
Id. § 681(8) (West Supp. 2011).
15
interest, the probate court did not abuse its discretion by finding that she was not
eligible to serve.24
The record from the final hearing shows that Brownrigg produced evidence
sufficient to support the probate court’s finding that Appellant was not qualified to
serve as guardian of Bryan’s person. The evidence showed that Bryan has mild
to moderate mental retardation and has diabetes, hypertension, and
hyperthyroidism. The probate court heard testimony showing that Appellant was
incapable of following visitation guidelines set up by TDADS, even upon court
order to do so, and that Bryan’s behavior improved when his contact with his
parents was limited; that Bryan called 911 when he “was stressed” and had
called 911 over a hundred times in the year prior to his removal; and that
Appellant could not keep Bryan from calling 911 and had no concerns with him
calling 911 repeatedly in order to have someone to talk to.
The probate court also heard evidence that Appellant had no concerns
with Bryan being left alone and unsupervised for extended periods of time or with
him being found wandering the neighborhood; that Appellant and Terry
sometimes failed to disclose to Bryan’s medical providers that he had diabetes
and would falsely state that he had not had any prior anger outbursts, and that
when his parents took him home from his group home for visits, they did not feed
24
See In re Guardianship of Alabraba, 341 S.W.3d 577, 579 (Tex. App.—
Amarillo 2011, no pet.) (reviewing guardianship appointment for abuse of
discretion and holding that the trial court did not abuse its discretion by finding
that the mother was not eligible to serve as her adult son’s guardian).
16
him a diabetic diet and did not give him his diabetic medications. The probate
court also had evidence before it showing that Bryan had at one point had his
social security and Medicaid benefits suspended because his parents failed to
notify the Social Security Administration of Bryan’s new residence after removing
Bryan from his group home.
Brownrigg produced evidence that Appellant and Terry had a history of
placing Bryan in a group home and then removing him within a year, usually after
the home recommended that the parents limit their visitation due to the staff
noting a “link between the visiting and . . . [Bryan’s] escalation with his psychiatric
problems and their ability to manage him.” Bryan had been forced to leave one
group home because his parents failed to pay the bills, failed to follow visitation
requirements, and would not release Bryan’s medical records to the facility. The
evidence showed that Bryan’s parents had a pattern of not paying the bills for his
care providers. Given the evidence before the probate court, we conclude that
the probate court did not abuse its discretion by appointing TDADS rather than
Appellant as guardian of Bryan’s person.
In her arguments related to these issues, Appellant argues that the
testimony of the two witnesses called by Brownrigg at the final hearing was
incompetent and constitutes no evidence. Regarding Buchan, Appellant asserts
that Brownrigg failed to establish her qualifications as an expert witness and that
her testimony was therefore incompetent.
17
The probate court appointed Buchan as court visitor to visit and evaluate
Bryan under section 648 of the probate code. Section 648 authorizes the
probate court to appoint a court visitor to evaluate the proposed ward and to
provide a written report.25 The code does not require that the visitor be an
expert, and Buchan did not testify as an expert. Buchan visited Bryan’s home,
interviewed Bryan’s parents and employees of Bryan’s current group home, and
reviewed Bryan’s medical records. Buchan based her recommendation and her
testimony on the information she gathered during her investigation. At no point
did Buchan assert an opinion as an expert or appear to be testifying as an
expert. Accordingly, we overrule this part of Appellant’s thirteenth and fourteenth
issues.
Appellant further argues that Cross’s testimony was incompetent because
she never explained how she knew the information that she testified about. She
complains about Cross’s testimony about Bryan’s living conditions with his
parents, his hospital placements, why Bryan left particular hospitals, and “other
items which occurred prior to the State’s involvement.” With respect to the
events that “happened at various times during Bryan’s prior treatment,” Appellant
argues that “[u]nless [Cross] was living with Bryan’s parents in their home, she
could not have possibly known the statement she was testifying about.”
25
Tex. Prob. Code Ann. § 648(b) (West 2003).
18
Cross testified that she had reviewed boxes of documents relating to
Bryan’s prior medical care, and her statements about his hospital placements
and his reasons for leaving them were based on the documents that she
reviewed. To the extent Appellant complains about any other parts of Cross’s
testimony, Appellant does not specify which part of Cross’s testimony she
believes is incompetent. We overrule of Appellant’s thirteenth and fourteenth
issues.
In Appellant’s fifteenth and final issue, she asserts that the probate court
abused its discretion by denying her motion for new trial. In her first argument
under this issue, she contends that she met the requirements to have a post-
answer default judgment set aside.
By the time the hearing on the merits began, the probate court had already
struck Appellant’s pleadings, making the case uncontested as to Appellant. But
in any case, Appellant has not shown that she meets the requirements for setting
aside a post-answer default judgment.
A default judgment should be set aside and a new trial granted if the
defendant’s failure to appear was not intentional or the result of conscious
indifference but was the result of an accident or mistake; the motion for new trial
19
set up a meritorious defense; and granting the motion would cause no undue
delay or otherwise injure the plaintiff.26
In her motion for new trial, Appellant did not make factual assertions that, if
true, demonstrated that her failure to appear was an accident or mistake rather
than intentional or the result of conscious indifference.27 The record shows that
she was aware of the hearing date but scheduled back surgery for that day. She
did not assert in her motion that this surgery could not be postponed or that she
could not schedule the surgery for any other day. She stated only that she was
absent “for health reasons.”
Even if Appellant had established the first Craddock element, she failed to
establish a meritorious defense. Appellant’s motion for new trial did not allege
facts that, under the law, would constitute a defense to Brownrigg’s claim that
she was unsuitable to be appointed as Bryan’s guardian and did not allege facts
concerning Bryan’s best interest in the appointment of his guardian. In fact, other
than asserting that the hearing had been scheduled for February 8, 2011 and
that she had been absent from the hearing for health reasons, she asserted no
26
Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126
(1939); see also Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (applying
Craddock to post-answer default judgments).
27
See In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (stating that “[t]he
defendant’s burden as to the first Craddock element has been satisfied when the
factual assertions, if true, negate intentional or consciously indifferent conduct by
the defendant and the factual assertions are not controverted by the plaintiff”).
20
facts at all. Even if she had alleged such facts, she was required to support
those facts with affidavits or other evidence but did not.28
Appellant further asserts that because of the probate court’s denial of her
motion for continuance, “[she] was unable to present her side of the story,” and
therefore the “merits would be served by a new trial.” But as we stated above,
the probate court did not abuse its discretion by denying Appellant’s motion for
continuance. Accordingly, we overrule Appellant’s fifteenth issue.
In her conclusion and prayer, Appellant argues that the federal constitution
provides “a fundamental liberty interest of natural parents in the care, custody,
and management of their children.” Appellant’s argument does not relate to any
of her issues. Because Appellant is pro se, however, we briefly address this
argument to note that the cases cited by Appellant are inapplicable in the context
of this case: one case discussed constitutional requirements in terminating
parental rights;29 one case upheld a preliminary injunction enjoining the
enforcement of an Oregon statute that required parents to send their minor
children to public school rather than to private school;30 and the third, a case from
the Georgia Supreme Court, discussed the constitutionality of Georgia’s
28
See Ivy, 407 S.W.2d at 214; see also Estate of Pollack v. McMurrey, 858
S.W.2d 388, 392 (Tex. 1993).
29
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982).
30
Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268
U.S. 510, 45 S. Ct. 571 (1925).
21
grandparent visitation statute, which granted any grandparent the right to seek
visitation of a minor grandchild.31 We overrule this argument.
Conclusion
Having overruled Appellant’s issues, we affirm the probate court’s order.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: May 10, 2012
31
Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769 (1995).
22