In the Interest of E.L.D., a Child v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00345-CV

In the Interest of E.L.D., a Child

On appeal from the
335th District Court of Burleson County, Texas
Judge Carson T. Campbell Jr., presiding
Trial Court Cause No. 30561

JUSTICE Smith delivered the opinion of the Court.

MEMORANDUM OPINION

Forrest Dowling appeals from the trial court’s final order in this suit to

modify the parent-child relationship. In three issues, Forrest Dowling

contends the trial judge engaged in improper judicial conduct, violated his

rights to due process, and misinterpreted legal precedent. We affirm.

BACKGROUND

On April 25, 2023, the trial court signed Agreed Temporary Orders

providing that Monica Graham, E.L.D.’s mother, shall have supervised

possession at specified times. The order further provided that Forrest Dowling

(hereafter Forrest) had the right of possession of the child at all other times
not specifically designated for Graham. Thereafter, Jacki Dowling (hereafter

Jacki), E.L.D.’s grandmother, filed a petition in intervention in the suit

affecting the parent-child relationship seeking to be named sole managing

conservator of E.L.D. After a jury trial, the trial court rendered its final order

in the suit to modify the parent-child relationship and appointed Jacki sole

managing conservator of E.L.D. The court appointed Graham and Forrest

possessory conservators of E.L.D., ordering supervised access to the child and

child support obligations. Forrest appeals the modification order.

THE TRIAL COURT’S CONDUCT

In his first issue, Forrest contends that because the trial court’s

comments violated Canons 2A and 3B of the Code of Judicial Conduct the trial

judge should have recused himself. He asserts that the court’s request for

education and expert guidance from the parties casts doubt on its impartiality

and qualifications.

Forrest did not file a motion to recuse the trial judge as required by Texas

Rule of Civil Procedure 18a. See TEX. R. CIV. P. 18a. If a party fails to comply

with Rule 18a, he waives his right to complain of a judge’s failure to recuse

himself. See McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex. App.—Houston

[1st Dist.] 1995, writ denied). We overrule Forrest’s first issue.

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DUE PROCESS

In his first argument in his second issue, Forrest contends his due

process rights were violated because he never received service of process for

the June 10, 2024 hearing on Jacki’s Emergency Motion to Deny Entry of

Additional Temporary Orders. In his brief, Forrest states “[t]he Certificate of

Service was sent by Attorney Kary Gregg on May 8, 2024. At this time, the

Appellant’s former attorney Brandon Mancuso notified Appellant that all the

money paid to Mr. Mancuso had been depleted. As such, Mr. Mancuso told

Appellant he could no longer represent him.”

The record includes the notice of the hearing and certificate of service

showing that Brandon Mancuso, Forrest’s attorney at the time, was properly

served in accordance with Texas Rule of Civil Procedure 21a. A certificate by

a party or an attorney of record is prima facie evidence of the fact of service.

See Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex.

App.—Dallas 2009, no pet.). A properly sent notice raises a presumption that

notice was received. Id. The presumption may be rebutted by an offer of proof

of nonreceipt. Id. The appellate record does not include an offer of proof of

nonreceipt. Accordingly, the presumption of proper service stands.

In his second argument in his second issue, Forrest contends the trial

court erred in denying his oral motion for continuance presented at a July 22,

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2024 pretrial hearing. An appellate court will not reverse a judgment based

on a denial of a motion for continuance absent a clear abuse of discretion. See

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).

Rule 251 of the Texas Rules of Civil Procedure requires a party seeking a

continuance to show sufficient cause by affidavit, consent of the parties, or

operation of law as support for the motion. TEX. R. CIV. P. 251. A motion for

continuance must be in writing, state the specific facts supporting the motion,

and be verified or supported by an affidavit. See In re Commitment of

Gagliardo, 664 S.W.3d 405, 406 (Tex. App.—Tyler 2022, pet. denied). Because

Forrest’s oral motion for continuance did not comply with Rule 251, we cannot

say the trial court abused its discretion in denying the motion. See Metro

Aviation, Inc. v. Bristow Offshore Helicopters, Inc., 740 S.W.2d 873, 874 (Tex.

App.—Beaumont 1987, no writ) (Held that, when the provisions of Rule 251

have not been satisfied, it will be presumed that the trial court did not abuse

its discretion in denying a continuance.).

In his third argument in his second issue, Forrest asserts the trial court

erred in admitting hearsay testimony by Jacki at the trial on the petition in

intervention. In the complained-of testimony, Jacki testified about two

incidents when Forrest used drugs in front of E.L.D., as described to her by

Jacki’s daughter. At another point in Jacki’s testimony, she described a phone

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call from an individual who observed E.L.D.’s supervised visits with her

parents. That individual told her E.L.D. had exhibited behavior of a sexual

nature and he thought her dad was sexually abusing her, so he called CPS.

Forrest objected to the testimony about the first instance of drug use

related by Jacki’s daughter. However, this same evidence was included in

Jacki’s affidavit in support of her petition, admitted as Intervenor’s Exhibit 3.

When that exhibit was offered, Forrest stated he had no objection to it. When

evidence identical or similar to the objected-to evidence is admitted elsewhere

without objection, any error in admitting the objected-to evidence is harmless

as it is cumulative. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.

2000); In re M.T.R., 579 S.W.3d 548, 570 (Tex. App.—Houston [14th Dist.]

2019, pet. denied).

Forrest did not object to admission of the second reference to his drug

use or the allegation of sexual abuse as required to preserve a complaint for

review. See TEX. R. APP. P. 33.1. Further, Forrest has not shown how the

admission of the testimony caused rendition of an improper judgment or

probably prevented him from presenting his case to this Court. See TEX. R.

APP. P. 44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998). We overrule Forrest’s second issue.

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BURDEN OF PROOF

In his third issue, Forrest contends the trial court misinterpreted legal

precedent. He asserts that the final order in this case resulted in termination

of most of his parental rights. Therefore, he opines that the clear and

convincing standard of proof should apply here.

The trial court instructed the jury that, whenever a question requires an

answer other than “yes” or “no,” its answer must be based on a preponderance

of the evidence. The court defined “preponderance of the evidence” as the

greater weight of credible evidence presented in this case.

Termination decisions must be supported by clear and convincing

evidence. TEX. FAM. CODE ANN. § 161.001(b). On the other hand, a finding

that appointment of a parent as managing conservator would significantly

impair the child’s physical health or emotional development is governed by a

preponderance-of-the-evidence standard. Id. §§ 105.005, 153.131(a); Lewelling

v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). The trial court did not err in

instructing the jury to base its verdict on the preponderance of the evidence.

We overrule Forrest’s third issue.

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CONCLUSION

Having overruled each of Forrest’s issues, we affirm the trial court’s final

order in this suit to modify the parent-child relationship.1

STEVE SMITH
Justice

OPINION DELIVERED and FILED: September 25, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

1 All pending motions are dismissed as moot.

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