Opinion
No. 10-15-00303-CV
01-14-2016
IN THE INTEREST OF M.R.R., A CHILD
From the County Court at Law No. 2 Johnson County, Texas
Trial Court No. D201400216
MEMORANDUM OPINION
In nine issues, appellant, R.N.V., challenges various aspects of the trial court's judgment terminating her parental rights to M.R.R. Because we overrule all of R.N.V.'s issues on appeal, we affirm.
I. EXCLUSION OF ATTENDANCE SHEETS SHOWING PARTICIPATION IN NARCOTICS
ANONYMOUS MEETINGS
In her seventh issue, R.N.V. argues that the trial court abused its discretion in refusing to admit into evidence attendance sheets demonstrating her participation in Narcotics Anonymous meetings.
"An appellate court does not reach the question of whether evidence was erroneously excluded unless the complaint has first been preserved for review." In re Miller, 243 S.W.3d 831, 837 (Tex. App.—Dallas 2008, no pet.) (citing McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex. 1984)). "To preserve error on appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record." Id. (citing TEX. R. APP. P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999)). Texas Rule of Evidence 103 provides that error may not be predicated upon a ruling to exclude evidence unless a party's substantial rights has been affected and the substance of the evidence is either apparent or made known to the court. TEX. R. EVID. 103. Moreover, to complain on appeal about a matter that would not otherwise appear in the record, a party must make an offer or proof or file a formal bill of exception. See TEX. R. APP. P. 33.2; see also In re Miller, 243 S.W.3d at 837 (citing Langley v. Comm'n for Lawyer Discipline, 191 S.W.3d 913, 915 (Tex. App.—Dallas 2006, no pet.) (concluding that appellant failed to preserve error when no offer of proof or bill of exception was made)).
An offer of proof consists of making the substance of the evidence known to the court and shall be made as soon as practicable after the ruling excluding the evidence, but before the court's charge if read before the jury. The offer of proof must be (1) made before the court, the court reporter, and opposing counsel, but outside the presence of the jury; and (2) preserved in the reporter's record. The offer of proof allows a trial court to reconsider its ruling in light of the actual evidence. When there is no offer of proof made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exception.
To complain on appeal about a matter that would not otherwise appear in the record, an appellant is required to make a formal bill of exception within thirty days of filing the notice of appeal and must include the precise evidence the party desires admitted. Rule 33.2(c) sets forth specific written and procedural requirements for a formal bill of exception. A formal bill of exception must be presented to the trial court for its approval and, if the parties agree to the contents of the bill, the trial court
must sign the bill and file it with the trial court clerk. If the parties or the trial court do not agree with the contents of the bill, the rules provide a procedure for presenting the bill. Simply filing the excluded evidence with the trial court is not sufficient to make a proper bill of exception[], even though it is part of the record on appeal.In re Miller, 243 S.W.3d at 837-38 (internal citations & quotations omitted).
Here, R.N.V. did not present the excluded evidence to the trial court by offer of proof or a bill of exception. The excluded evidence is not in the record. We therefore conclude that R.N.V. failed to properly preserve error. See TEX. R. EVID. 103; TEX R. APP. P. 33.2; see also In re Miller, 243 S.W.3d at 837; Langley, 191 S.W.3d at 915. We overrule R.N.V.'s seventh issue.
II. ADMISSION OF ALLEGED SPECULATIVE TESTIMONY
In her eighth issue, R.N.V. complains that the trial court erred in admitting speculation by a Department witness regarding R.N.V.'s knowledge of the dangers associated with her ex-boyfriend, who is a registered sex offender, being around M.R.R.
Generally, to preserve error for appellate review, a complaining party must make a timely and specific objection in the trial court and obtain a ruling. See TEX. R. APP. P. 33.1(a)(1). An objection is timely if it is made as soon as the ground of objection becomes apparent. See Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Russell v. State, 904 S.W.2d 191, 196-97 (Tex. App.—Amarillo 1995, pet. ref'd) ("To be timely, the objection must have been made at the earliest possible opportunity. Objections made after questions are answered do not preserve error for appeal." (internal citations omitted)); Hernandez v. State, 808 S.W.2d 536, 545 (Tex. App.—Waco 1991, no pet.) ("An objection is not timely unless it is made at the earliest possible moment."); see also In re J.L.I., No. 04- 96-00505-CV, 1997 Tex. App. LEXIS 6718, at *21 (Tex. App.—San Antonio Dec. 24, 1997, pet. denied) (same).
In this issue, R.N.V. challenges the Department's questioning of Nakie Thompson. Specifically, the Department asked Thompson, a family-based safety services worker on this case for three or four weeks, whether she believed R.N.V. "knew of the dangers of having the child around the sex offender." Thompson responded, "Yes." It was only after Thompson answered the question did R.N.V. object on the ground of speculation. Because R.N.V. did not object before Thompson answered the question, and because no good cause was offered to explain the delayed objection, we cannot say that R.N.V.'s objection was timely. See TEX. R. APP. P. 33.1(a)(1); Pena, 353 S.W.3d at 807; Russell, 904 S.W.2d at 196-97; Hernandez, 808 S.W.2d at 545; see also In re J.L.I., 1997 Tex. App. LEXIS 6718, at *21. As such, R.N.V. has not preserved this complaint for appellate review; we overrule her eighth issue.
Additionally, the record does not show that R.N.V. moved to strike Thompson's answer to the complained-of question. See TEX. R. EVID. 103(a)(1)(A).
III. SUFFICIENCY OF THE EVIDENCE
In her first six issues, R.N.V. contends that the evidence supporting the underlying predicate grounds for termination and the best-interest finding are legally and factually insufficient.
A. Standard of Review and Applicable Law
In an involuntary termination proceeding brought under section 161.001 of the family code, the Department must establish: (1) at least one ground under subsection (b)(1) of section 161.001; and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2015); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. See Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West 2014). Evidence is clear and convincing if it "will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 101.007 (West 2014). Due process demands this heightened standard because termination results in permanent, irrevocable changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting the standards for termination and modification).
In reviewing the evidence for legal sufficiency in parental-termination cases, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the evidence in the light most favorable to the finding and judgment and assume that the factfinder resolved any disputed facts in favor of its finding if a reasonable factfinder could have done so. Id. We must also disregard all evidence that a reasonable factfinder could have disbelieved. Id. We must consider, however, undisputed evidence, even if it is contrary to the finding. Id.
It is necessary to consider all of the evidence, not just that which favors the verdict. Id. However, we cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses, for that is within the factfinder's province. Id. at 573-74. And even when credibility issues appear in the appellate record, we must defer to the factfinder's determinations as long as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due deference to the factfinder's findings and be careful to not supplant the factfinder's judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated the relevant conduct provisions of section 161.001(1) and that the termination of the parent-child relationship would be in the best interest of the child. In re C.H., 89 S.W.3d at 28. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.
B. The Predicate Grounds
Here, the trial court concluded that the Department had established the following predicate violations: subsections (D) and (E) of section 161.001(b)(1) of the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D)-(E). The predicate condition of section 161.001(b)(1)(D) is satisfied if the evidence shows the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. See id. § 161.001(b)(1)(D). Additionally, subsection (E) requires a finding that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. See id. § 161.001(b)(1)(E).
Sections 161.001(b)(1)(D) and (E) both require a finding of endangerment. To endanger means to expose to loss or injury, to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); see also In re E.M., No. 10-14-00313-CV, 2015 Tex. App. LEXIS 5490, at *16 (Tex. App.—Waco May 28, 2015, no pet.) (mem. op.). The specific danger to a child's physical or emotional well-being need not be established as an independent proposition, but it may be inferred from parental misconduct. See Boyd, 727 S.W.2d at 533.
When termination of parental rights is based on section D, the endangerment analysis focuses on the evidence of the child's physical environment, although the environment produced by the conduct of the parents bears on the determination of whether the child's surroundings threaten his or her well-being. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Section D permits termination if the petitioner proves parental conduct caused a child to be placed or remain in an endangering environment. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
It is not necessary that the parent's conduct be directed towards the child or that the child actually be injured; rather, a child is endangered when the environment creates a potential for danger which the parent is aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.—Texarkana 2000, no pet.) ("[I]t is not necessary for [the mother] to have had certain knowledge that one of the [sexual molestation] offenses actually occurred; it is sufficient that she was aware of the potential for
danger to the children and disregarded that risk by . . . leaving the children in that environment.")). In considering whether to terminate parental rights, the court may look at parental conduct both before and after the birth of the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Section D permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d at 367.In re T.R.L., No. 10-14-00290-CV, 2015 Tex. App. LEXIS 2178, at *12 (Tex. App.—Waco Mar. 5, 2015, no pet.) (citing Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)).
Under subsection 161.001[(b)](1)(E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical well-being was the direct result of the parent's conduct, including acts, omissions, or failure to act. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ).Id. at *13 (citing In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.)).
Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see TEX. FAM. CODE ANN. § 161.001(1)(E). It is not necessary, however, that the parent's conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533; In re J.T.G., 121 S.W.3d at 125. The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment. See In re B.J.B., 546 S.W.2d 674, 677 (Tex. Civ. App.—Texarkana 1977, writ ref'd n.r.e.); see also Sylvia M. v. Dallas County Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ) (considering a "volatile and chaotic" marriage, an altercation during pregnancy, and a mother's repeated reconciliation with the abusive spouse). Abusive or violent conduct by a parent or other resident of a child's home may produce an environment that endangers the physical or emotional well-being of a child. Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref'd n.r.e.); see also In re K.A.S., 131 S.W.3d at 222 (noting that violent or abusive conduct by someone within the household is an environment that endangers children).
A parent's illegal drug use and drug-related criminal activity may also support a finding that the child's surroundings endanger his or her physical or emotional well-being. In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 2009, pet. denied). And "[b]ecause it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(1)(E)." Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 195-96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (terminating parental rights despite being no direct evidence of the parent's continued drug use actually injuring the child)). A factfinder may reasonably infer from a parent's refusal to take a drug test that the parent was using drugs. In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.). A parent's continued drug use demonstrates an inability to provide for the child's emotional and physical needs and to provide a stable environment for the child. See, e.g., In re T.R.L., 2015 Tex. App. LEXIS 2178, at *14 (citing In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234, at **11-12 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)).
Here, witnesses testified that R.N.V. tested positive for methamphetamines and amphetamines on multiple occasions throughout the case. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (noting that a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct); In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (same); see also Walker, 312 S.W.3d at 617-18. Additionally, R.N.V. continued to associate with M.R.R.'s alleged father, R.J.R., who had a history of domestic violence with R.N.V. In fact, witnesses testified that R.J.R. had been incarcerated for assaulting R.N.V. Moreover, while receiving services from the Department, both R.N.V. and R.J.R. were arrested for family violence. See In re K.A.S., 131 S.W.3d at 222; Sylvia M., 771 S.W.2d at 204; Ziegler, 680 S.W.2d at 678; In re B.J.B., 546 S.W.2d at 677. The two were arrested again a month later for violating their community supervision.
Witnesses also recounted that R.N.V. had been arrested for theft during this case.
The record also reflects that R.N.V. allowed her ex-boyfriend, who is a registered sex offender, to have access to and care for M.R.R. even after being instructed not to do so by the Department. See In re Tidwell, 35 S.W.3d at 119-20; see also In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) ("For example, abusive or violent conduct by a parent or other resident of a child's home may produce an environment that endangers the physical or emotional well-being of a child."). Caseworkers also noted that R.N.V. did not appear for or refused to participate in several drug screens. See In re C.R., 263 S.W.3d at 374. And on May 20, 2015, just a few months prior to the final hearing, R.N.V. tested positive "with high numbers for methamphetamines and amphetamines." Angela Gomez Tostado, a Department caseworker, testified that, since the positive May 20, 2015 test, R.N.V. has not participated in any subsequent drug tests. And while R.N.V. completed the STAR Council on Substance Abuse program, Thompson testified that R.N.V. continued to use methamphetamine while doing the classes, which "would impair her ability to care for [M.R.R.] and her basic needs."
Viewing the evidence in the light most favorable to the judgment, we conclude that a reasonable factfinder could form a firm belief or conviction that R.N.V.'s parental rights should be terminated under either subsection 161.001(b)(1)(D) or 161.001(b)(1)(E). See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D)-(E); see also In re J.P.B., 180 S.W.3d at 573. And with respect to her factual-sufficiency complaint, after considering all of the evidence, we conclude that a reasonable factfinder could have formed a firm belief or conviction that her rights should be terminated. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D)-(E); see also In re H.R.M., 209 S.W.3d at 108; In re C.H., 89 S.W.3d at 28. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's judgment terminating R.N.V.'s parental rights under subsections 161.001(b)(1)(D) and 161.001(b)(1)(E).
C. The Best-Interest Finding
R.N.V. also challenges the sufficiency of the evidence supporting the trial court's best-interest finding. In determining whether termination of R.N.V.'s parental rights was in M.R.R.'s best interest, we consider the well-established Holley factors. See Holley, 544 S.W.2d at 371-72. These factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parents that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. at 371-72 (noting also that this list is not exhaustive, but simply indicates factors that have been or could be pertinent). There is no requirement that the Department prove all of these factors as a condition precedent to parental termination, and the absence of evidence about some factors does not preclude a factfinder from reasonably forming a strong conviction that termination is in the children's best interest. See In re C.H., 89 S.W.3d at 27. Moreover, evidence establishing the predicate grounds under section 161.001(1) also may be relevant to determining the best interest of the child. See id. at 27-28.
The Holley factors focus on the best interest of the child, not the best interest of the parent. See Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). The goal of establishing a stable, permanent home for a child is a compelling state interest. Id. at 87. The need for permanence is a paramount consideration for a child's present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref'd n.r.e.) (en banc).
Evidence of past misconduct or neglect can be used to measure a parent's future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) ("Past is prologue."); see also In re A.M., 385 S.W.3d 74, 82-83 (Tex. App.—Waco 2012, pet. denied) (concluding that evidence of mother's history of neglecting and endangering children by exposing them to domestic violence supported the trial court's finding that termination was in the child's best interest). Evidence of a recent improvement does not absolve a parent of a history of irresponsible choices. See Smith v. Tex. Dep't of Protective & Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.); see also In re T.C., No. 10-10-00207-CV, 2010 Tex. App. LEXIS 9685, at *20 (Tex. App.—Waco Dec. 1, 2010, pet. denied) (mem. op.).
At the time of trial, M.R.R. was two years old and, therefore, too young to express her desires regarding placement. Additionally, the Department admits that M.R.R. has normal physical and emotional needs; however, when M.R.R. came into the Department's care, she was delayed in speech and motor skills—issues that are being addressed in M.R.R.'s current placement. The record indicates that R.N.V. has no job or reliable transportation. Moreover, R.N.V. has repeatedly abused drugs and refused to submit to drug testing, which supports an inference of continued drug abuse. See In re C.R., 263 S.W.3d at 374. R.N.V. has engaged in family violence and has been arrested for such behavior. R.N.V. also has allowed M.R.R. to be around both R.J.R., who has been arrested for engaging in family violence against R.N.V., and an ex-boyfriend, who is a registered sex offender. The record does not contain evidence demonstrating that R.N.V. has made significant changes in her lifestyle or parenting since the Department became involved.
With regard to the other factors, R.N.V. did complete a substance-abuse program; however, witnesses testified that R.N.V. continued to abuse drugs despite attending the classes. Furthermore, the goal for M.R.R. is adoption by the family where she is currently placed—a placement that the Department deems as safe, stable, and secure. R.N.V. has not proffered evidence of her future plans for M.R.R.
Considering all the evidence in relation to the Holley factors in the light most favorable to the trial court's finding, we hold that a reasonable factfinder could have formed a firm belief or conviction that termination was in M.R.R.'s best interest. See In re J.F.C., 96 S.W.3d at 266; see also Holley, 544 S.W.2d at 371-72. And viewing the evidence in a neutral light in relation to the Holley factors, we hold that the trial court could have reasonably formed a firm belief or conviction that termination was in M.R.R.'s best interest. See In re H.R.M., 209 S.W.3d at 108; In re C.H., 89 S.W.3d at 28; see also Holley, 544 S.W.2d at 371-72. Accordingly, we hold that the evidence is legally and factually sufficient on the best-interest finding. As such, we overrule R.N.V.'s first six issues.
IV. R.N.V.'S DUE-PROCESS RIGHTS
In her ninth issue, R.N.V. asserts that the trial court abused its discretion and violated her due-process rights by refusing to grant her oral motion for continuance.
On the morning of the final hearing, R.N.V.'s trial counsel orally moved to continue the hearing because R.N.V. was not present. Apparently, R.N.V. had "suffered an injury; that she's been hit in the back of the head and is suffering from a concussion and is unable to get here for trial today." R.N.V.'s trial counsel sought to reset the hearing before the dismissal date to give R.N.V. time to seek medical treatment. Later, R.N.V.'s trial counsel admitted that the case had been set for mediation the day before and R.N.V. did not show for that either. Subsequently, the trial court denied R.N.V.'s oral request to continue the hearing.
We review the denial of a motion for continuance under an abuse-of-discretion standard of review. Wal-Mart Stores Tex., L.P. v. Crosby, 295 S.W.3d 346, 356 (Tex. App-Dallas 2009, pet. denied). A trial court abuses its discretion by making a decision that is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. See TEX. R. CIV. P. 251; Serrano v. Ryan's Crossing Apartments, 241 S.W.3d 560, 564 (Tex. App.—El Paso 2007, pet. denied). If the motion is not verified or supported by affidavit, we presume the trial court did not abuse its discretion. See Serrano, 241 S.W.3d at 564; Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—Fort Worth 1999, pet. denied); see also Saenz v. Grandy, No. 10-08-00245-CV, 2010 Tex. App. LEXIS 8658, at *6 (Tex. App.—Waco Oct. 27, 2010, no pet.) (mem. op.). Because R.N.V. made an oral motion for continuance that was not verified or supported by affidavit, we conclude that the trial court did not abuse its discretion in denying the motion and, therefore, overrule her ninth issue. See TEX. R. CIV. P. 251; Serrano, 241 S.W.3d at 564; Lucky Lady Oil Co., 991 S.W.2d at 493; see also Saenz, 2010 Tex. App. LEXIS 8658, at *6.
We also note that mere absence of a party does not automatically entitle her to a continuance. See Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169 (Tex. App.—El Paso 2003, no pet.) (citing Vickery v. Vickery, 999 S.W.2d 342, 363 (Tex. 1999); Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—Dallas 1989, no writ); Brown v. Brown, 599 S.W.2d 135, 137 (Tex. Civ. App.—Corpus Christi 1980, no writ)). Additionally, when the ground for continuance is the absence of a witness, the moving party must file an affidavit stating the name and address of the witness, what the moving party expects to prove by the witness, describe the diligence used to procure the testimony of the witness, and state that the continuance is not made for delay only but that justice may be done. See TEX. R. CIV. P. 252; see also Briscoe, 130 S.W.3d at 169-70. None of this was done in the instant case. --------
V. CONCLUSION
Having overruled all of R.N.V.'s issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed
Opinion delivered and filed January 14, 2016
[CV06]