In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00125-CV
___________________________
IN THE INTEREST OF R.D., A CHILD
On Appeal from the 233rd District Court
Tarrant County, Texas
Trial Court No. 233-679221-20
Before Sudderth, C.J.; Kerr and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an ultra-accelerated appeal1 in which Appellant R.D. (Father) appeals
the termination of his parental rights to his daughter Rhonda, 2 who was removed
from his home after his daughter Zoey3 was taken to Cook Children’s Medical Center,
where she died due to injuries from nonaccidental trauma. At the time of the trial,
Father was in jail on charges of capital murder related to Zoey’s death. In a single
issue, Father argues that the trial court abused its discretion by denying his counsel’s
oral motion for continuance, which was made at the outset of the termination trial.
Because Father’s motion failed to comply with the requisites of Texas Rules of Civil
Procedure 251 and 252, because he failed to show extraordinary circumstances and
best interest to justify extending the dismissal deadline, and because he did not
preserve any constitutional complaints, we affirm.
1
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of an
appeal from a judgment terminating parental rights, so far as reasonably possible,
within 180 days after the notice of appeal is filed).
2
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in
an appeal from a judgment terminating parental rights).
Rhonda and Zoey have different mothers but were both fathered by Father.
3
Mother, as used herein, refers to Rhonda’s mother.
2
II. Background4
Zoey had just turned four years old when she died of the massive traumatic
injuries we are about to describe. At 1:23 a.m. on February 17, 2020, after being
transported by ambulance, Zoey arrived at Cook Children’s in full cardiac arrest; her
heart was not beating on its own, and she was not breathing on her own. A full
physical exam revealed that Zoey had extensive severe bruising on all planes and
extremities of her body. Imaging revealed that Zoey also had evidence of severe
physical internal trauma, including cerebral edema (excessive swelling of her brain)
that was described as “a life-threatening, devastating injury that you often can’t
recover from -- or you can’t recover from.”5
A. Father’s Explanation for Zoey’s Injuries and Mother’s Alibi
Father told an emergency-room physician that Zoey had fallen from a plastic
slide around 10:00 or 10:30 a.m. on February 16 and that she might have hit her head
multiple other times throughout the day. After the physical exam revealed severe
bruising all over Zoey’s body, Father disclosed that around 11:00 a.m. he had given
her a whipping with a belt due to not following his instruction to pick up toys in the
playroom; he said that he had “got[ten] a good six licks in before she [had] started to
4
Because Father does not challenge the sufficiency of the evidence, we set forth
a brief background but do not detail all of the evidence in the over 2,000 pages of
medical records.
5
Testimony at trial revealed that Zoey’s head injury is typically seen in a high-
speed car crash or an auto–pedestrian accident because it takes such a high velocity to
cause that injury.
3
wiggle,” and then he had held her down by her neck while he had continued whipping
her. Father disclosed that he had taken off Zoey’s pants but had left her underwear
on and that the belt had hit other parts of Zoey’s body; Father acknowledged to the
nurse that the whippings he had given Zoey the previous morning had caused bruises.
Father then told Zoey to go stand in the playroom, which he had emptied of all toys,
and to do her breathing exercises.6
Mother did not physically see Father discipline Zoey that morning because he
had taken Zoey to another room. Around 2:30 p.m., Mother went to Dallas and took
two-and-a-half-year-old Rhonda with her.
Father left Zoey alone in the playroom from 2:30 p.m. until 4:30 or 5:00 p.m.
He checked on her only once, around 4:30 or 5:00 p.m., which is when he discovered
that she had urinated and defecated on herself. He gave her a bath, put some ice on
the knot on her swollen forehead, and put lotion and coconut oil on her bruises.
According to Father, he ate dinner around 6:30 p.m., but Zoey did not want to eat.
So Father returned Zoey to the empty playroom and told her to stand there and do
her breathing exercises.
When Mother and Rhonda returned home around 10:30 p.m., Father did not
allow Mother to enter the playroom. Father checked on Zoey and found that she had
soiled herself again. Father told Mother that he would give Zoey a bath and put her
6
Mother explained to a nurse that the breathing exercises were “something that
[Zoey] used to do via an app.”
4
to bed. Mother did not see Zoey until later that night when Mother found Zoey
unresponsive.
B. Medical Opinions
Caitlyn Bastable, a pediatric nurse practitioner who treated Zoey when she
arrived at Cook Children’s on February 17, opined that Zoey’s traumatic brain injury
was caused by excessive blunt force trauma and that the traumatic brain injury had
caused Zoey not to be able to breathe on her own. The nurse further opined that
Zoey’s death (declared at 6:06 p.m. on February 18, 2020) was caused by
nonaccidental trauma most likely inflicted by Father “based on the history that he
gave [her].” 7 The nurse testified that the autopsy ruled that the cause of Zoey’s death
was homicidal violence.
C. Rhonda’s Removal and Return to Mother
The Department of Family and Protective Services removed Rhonda from
Father and Mother’s home shortly after Zoey was admitted to Cook Children’s.
Mother worked her services and filed for divorce from Father after he was arrested on
7
In addition to Father’s admission about whipping Zoey with a belt, it was
disclosed to the nurse that Father was a Golden Glove boxer. The nurse testified that
when they
see kids with inflicted injuries or physical abuse injuries from caregivers,
they are horrible and excessive, require a lot of force, and then I think
that even steps it up a level when you have an athlete or someone that
knows how to throw punches when you’re punching a child. That force
can be great and excessive and cause that extensive injury that she in
turn sustained.
5
the charges related to Zoey’s death. A motion for monitored return was filed in
October 2020, and the trial court granted the motion approximately three weeks later.
D. Recommendation and Termination
The termination trial was held on April 16, 2021. Conservatorship worker Joan
Hall testified that Father did not start any of his services during the three months
before he was taken to jail and that she had not received any documentation showing
that Father had worked any services while in jail. Hall asked the trial court to
terminate Father’s parental rights to Rhonda and opined that termination of Father’s
parental rights is in Rhonda’s best interest because “[h]e’s responsible for the death of
[Zoey],” he poses a physical danger to Rhonda should he ever be released, he has
significant anger issues that caused him to beat Zoey to death, and he has not
addressed that nor has he taken responsibility for Zoey’s death. The trial court
terminated Father’s parental rights to Rhonda based on Subsections (D) and (E) (the
endangerment grounds) and Subsection (O) (the failure-to-work-the-service-plan
ground).
III. No Abuse of Discretion by Denying Oral Motion for Continuance
At the outset of the termination trial, which was held on a Friday, Father’s
attorney made the following oral motion for continuance:
Your Honor, if I may, I lost my internet connection last night. . . . I was
working on a motion for continuance. My internet connection, I think,
has been restored at my home, but that doesn’t do me any good here. I
was going to file a motion for continuance based on two factors, if I
may.
6
[Father] has been indicted with capital murder of a child younger
than 10. He has not had a trial[,] and it’s not likely that he will have a
trial for at least another year.
Secondly, I talked to . . . his third criminal defense lawyer Monday
afternoon, who had told me that he would be providing me with the
name of an expert witness who had a different take on the State’s
evidence. I have not received any information from that physician or
otherwise -- you know, I don’t even know what his name is. He was
supposed to call me.
So for those reasons, and not that -- not for the sake of delay, but
that justice be done for my client, who’s still innocent of any charges,
he’s just been indicted, not convicted, I would ask the Court to entertain
my motion for continuance.
The Department asked the trial court to deny the motion because
[t]his matter has been ongoing since February of last year. At the last
perm[anency] review for this case, we did announce that this would be a
trial for termination of [Father’s] rights exclusively, as well as managing
conservatorship to [Mother], who already has the child. [Mother] and
the child deserve permanency in this case, and we ask today that you
move forward with the trial. We do understand that there are limitations
with expert witnesses; however, as I said, at the last permanency review
hearing, we did announce and set the trial for today,[8] and we ask that
you deny the motion for continuance and proceed.
Mother’s attorney and the child’s guardian and attorney ad litem also asked the trial
court to deny the motion based on the child’s best interest—to “proceed today in
order to provide a resolution to the legal matters regarding this child.” The trial court
denied the motion.
8
The record contains a “Notice of Hearing” dated December 17, 2020, and that
notice states that “[a] Final Hearing for Termination is set for April 16, 2021.”
7
In his sole issue on appeal, Father argues that the trial court abused its
discretion by denying his motion for continuance. As we explain below, the trial
court acted within its discretion to deny the motion because it did not meet the
requirements of Rules 251 and 252.
A. Standard of Review
A trial court’s ruling on a motion for continuance is reviewed for an abuse of
discretion. In re J.S.S., 594 S.W.3d 493, 500 (Tex. App.—Waco 2019, pet. denied)
(mem. op.). A trial court abuses its discretion when it acts without any guiding rules
or principles, or, stated another way, when the trial court’s actions are arbitrary or
unreasonable. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), and In re M.R.R., No. 10-15-00303-CV, 2016 WL 192583, at *7 (Tex.
App.—Waco Jan. 14, 2016, no pet.) (mem. op.)).
B. Rules 251 and 252
Under Texas Rule of Civil Procedure 251, a continuance will not be granted
“except for sufficient cause supported by affidavit, or by consent of the parties, or by
operation of law.” Tex. R. Civ. P. 251. When a movant fails to comply with those
requirements, “we presume the trial court did not abuse its discretion in denying the
motion.” J.S.S., 594 S.W.3d at 501. In this case, counsel’s oral motion did not
comply with Rule 251 because it was not supported by an affidavit, it was not made
pursuant to an agreement between the parties, and it was not required by operation of
law. See In re J.P.-L., 592 S.W.3d 559, 576 (Tex. App.—Fort Worth 2019, pet. denied)
8
(“Because Mother did not comply with Rule 251 and two of the parties disagreed with
her oral request for a continuance, the trial court did not abuse its discretion by
denying the motion.”); In re M.A.-O.R., No. 02-11-00499-CV, 2013 WL 530952, at *5
(Tex. App.—Fort Worth Feb. 14, 2013, no pet.) (mem. op.) (holding that trial court
did not abuse its discretion by denying an oral motion for continuance that was made
just before the termination trial began because the record did not contain a written
motion for continuance, an affidavit, or sworn testimony in support of the motion).9
Even assuming Father’s oral request was sufficient to preserve error, we would
conclude that the trial court did not abuse its discretion by denying a continuance.
When, as alleged here, the ground for a continuance is the want of testimony, the
movant must
make affidavit that such testimony is material, showing the materiality
thereof, and that he has used due diligence to procure such testimony,
stating such diligence, and the cause of failure, if known; that such
testimony cannot be procured from any other source; and, if it be for the
absence of a witness, he shall state the name and residence of the
witness, and what he expects to prove by him; and also state that the
continuance is not sought for delay only, but that justice may be done;
provided that, on a first application for a continuance, it shall not be
necessary to show that the absent testimony cannot be procured from
any other source.
Tex. R. Civ. P. 252.
The rule required Father to make an affidavit “that such testimony is material,
showing the materiality thereof.” See id. Here, Father stated only that the expert “had
9
A party may satisfy the writing requirement by simply hand writing a motion
for continuance.
9
a different take on the State’s evidence.” Having “a different take,” however, is not
specific enough to show that the testimony is material, especially in light of Father’s
statements to various medical professionals at Cook Children’s that he had beaten
Zoey.
As to the rule’s affidavit requirement, Father acknowledges the requirement but
contends in his brief that he was unable to file a verified motion because his trial
counsel’s internet connection was not working the night before the trial. Father
attempts to liken this scenario to a case from the Houston Fourteenth Court of
Appeals in which the court reversed the denial of a motion for continuance when the
appellant’s attorney was unable to file a verified motion because the appellant
unexpectedly did not appear for trial despite having been properly bench warranted.
See In re L.N.C., 573 S.W.3d 309, 320–21 (Tex. App.—Houston [14th Dist.] 2019, pet.
denied). That case, however, is distinguishable on its facts.
The record here demonstrates that the trial date had been known for four
months, that Father’s counsel had not garnered information from Father’s criminal
defense attorney about a potential expert witness until the Monday of the week of the
trial, that Father’s counsel provided no explanation for his lack of diligence in not
obtaining the information about the expert prior to the week of trial, and that Father’s
counsel had none of the required details about the expert witness’s name and
residence. See Tex. R. Civ. P. 252. Father did not show how his trial counsel’s
10
nonworking internet the night before the trial contributed to Father’s failure to obtain
the required identifying information from the expert in the months preceding the trial.
Because Father did not show the materiality of the testimony he sought to
obtain and because he did not show that he exercised due diligence in seeking to
obtain information about the expert prior to the week of the trial, we hold that the
trial court did not abuse its discretion by denying the motion for continuance. See
Beaupre v. Beaupre, 700 S.W.2d 353, 356 (Tex. App.—Fort Worth 1985, writ dism’d)
(“Since Mr. Beaupre did not exercise due diligence in seeking to obtain the
information needed from the doctors, we [hold] that the trial court did not abuse [its]
discretion [by] overruling the motion for continuance.”).
IV. No Showing of Extraordinary Circumstances of Best Interest
to Extend Dismissal Deadline
To the extent that Father’s oral motion can be broadly construed as requesting
an extension of the dismissal deadline under Section 263.401(b), he failed to show
extraordinary circumstances and that any such extension would be in Rhonda’s best
interest.
The Amarillo Court of Appeals dealt with a similar scenario and set forth the
law on extending the dismissal deadline and explained why the trial court did not
abuse its discretion by denying an extension as follows:
The trial court may extend the dismissal deadline if the movant shows
“extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing
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conservator is in the best interest of the child.” [Tex. Fam. Code Ann.]
§ 263.401(b) . . . . “The focus is on the needs of the child, whether
extraordinary circumstances necessitate the child remaining in the
temporary custody of the Department, and whether continuing such is
in the best interest of the child.” In re A.J.M., 375 S.W.3d 599, 604 (Tex.
App.—Fort Worth 2012, pet. denied) (en banc). Actions that are
“considered to be the parent’s fault” will generally not constitute an
extraordinary circumstance. In re O.R.F., 417 S.W.3d 24, 42 (Tex.
App.—Texarkana 2013, pet. denied).
Here, the trial court appointed the Department as temporary
managing conservator of [the child] on August 4, 2017, due to concerns
of [Mother’s] use of methamphetamine and her previous history with the
Department. The trial on the merits was held on July 13, 2018, two
weeks prior to the statutory dismissal deadline. The day before the trial,
[Mother] filed a motion to extend the dismissal date and to retain the
case on the court’s docket. [Mother] asserted that she was arrested on
November 8, 2017, and remains incarcerated in the Dallam County Jail
under indictment for murder with a $1,000,000 bond. The motion
further stated that “there is no trial date set on the pending charge,” and
she “began working services[] but was unable to complete them due to
her arrest.” [Mother] urged the court to find her incarceration an
extraordinary circumstance which necessitates the retention of the case
on the docket for six months to give her time to resolve the criminal
charges.
[Mother] is accused of killing her father, the grandfather of [the
child]. . . . The Department opposed the extension because [Mother]
“could easily be charged with a capital case, and there is no end in sight
as far as when her criminal case will even go to trial.” The guardian ad
litem and C.A.S.A. volunteer also objected to the extension. The trial
court rejected [Mother’s] contention that her incarceration was an
extraordinary circumstance meriting an extension. See In re X.S., No. 07-
17-00422-CV, 2018 WL 1867556, at *4 . . . (Tex. App.—Amarillo [Apr.]
18, 2018, no pet.) (mem. op.) (no plausible evidence presented that
incarceration was an “extraordinary circumstance” or that extension
would be in child’s best interest). Based on the nature of the charges
and the lack of a trial date, the trial court could have concluded that
continuing the trial for six more months would not impact [Mother’s]
ability to complete her family plan of service or be in the best interest of
12
[the child]. We cannot say that the court abused its discretion by
denying [Mother’s] extension request.
In re E.F., No. 07-18-00281-CV, 2018 WL 4997785, at *1–2 (Tex. App.—Amarillo
Oct. 15, 2018, pet. denied) (mem. op.) (footnote omitted).
Here, the December 15, 2020 “Permanency Hearing Order Before Final
Order” states that the dismissal date was set for May 21, 2021, which was
approximately one month after the trial date. Due to the backlog of criminal cases
pending because of the COVID-19 pandemic, Father’s counsel conceded that it might
be “another year” before Father’s criminal case goes to trial. As in E.F., the trial court
here could have concluded that continuing the trial for six more months would not
have impacted Father’s ability to complete his service plan or be in Rhonda’s best
interest. See id. at *2. We therefore hold that the trial court did not abuse its
discretion by denying Father’s extension request.
V. Failure to Preserve Any Constitutional Argument
In his brief, Father further contends that the trial court’s rejection of his
motion for continuance denied him “his fundamental constitutional rights” and that
“[t]he denial of the motion for continuance prevented [his] counsel from properly
defending [Father’s] constitutional rights.” However, in his oral motion for
continuance, Father did not expressly cite the Constitution, state that he was making a
constitutional objection, or otherwise make the trial court aware that he was raising an
objection based on any particular constitutional right. Therefore, we hold that Father
13
failed to preserve his constitutional complaint for appellate review. See Tex. R. App.
P. 33.1(a); In re Z.C.J., No. 04-12-00010-CV, 2012 WL 3597209, at *2 (Tex. App.—
San Antonio Aug. 22, 2012, pet. denied) (mem. op.).
VI. Conclusion
Having addressed each of the arguments raised by Father within his sole issue,
we overrule Father’s sole issue, and we affirm the trial court’s order terminating his
parental rights to Rhonda.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: September 16, 2021
14