                                         NO. 12-15-00182-CV

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

IN THE INTEREST OF                                          §       APPEAL FROM THE 349TH

J.J., J.J. AND J.J.,                                        §       DISTRICT COURT

CHILDREN                                                    §       ANDERSON COUNTY, TEXAS

                                         MEMORANDUM OPINION
             K.B. appeals the termination of her parental rights. On appeal, she contends that the
trial court abused its discretion by denying her motion for continuance.


                                                   BACKGROUND
         K.B. and J.J.1 are the parents of three children: J.J.1, born April 18, 2005; J.J.2, born June
14, 2006; and J.J.3, born October 1, 2007. On April 21, 2014, the Department of Family and
Protective Services (the Department) filed an original petition for protection of the children, for
conservatorship, and for termination of K.B.’s and J.J.’s parental rights. The Department was
appointed temporary managing conservator of the children, and the parents could have contact
with the children only at the Department’s discretion.
         At the conclusion of the trial on the merits, the jury found, by clear and convincing
evidence, that K.B.’s parental rights should be terminated. However, the jury did not find that
J.J.’s parental rights should be terminated. Instead, it found that the Department should be
named as the children’s managing conservator and that J.J. should be named as their possessory
conservator. Thereafter, the trial court found, by clear and convincing evidence, that K.B. had
engaged in one or more of the acts or omissions necessary to support termination of her parental


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           The initials of the father and his three children are the same. Therefore, we will refer to the father as J.J.
and to his children as J.J.1, J.J.2, and J.J.3.
rights under subsections (C), (N), and (O) of Texas Family Code Section 161.001(1). The trial
court also found that termination of the parent-child relationship between K.B. and the children
was in the children’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between K.B. and the children be terminated. Further, the trial court
ordered that the Department be appointed permanent managing conservator of the children, that
J.J. be appointed possessory conservator, and that J.J. pay child support. This appeal followed.


            MOTION FOR CONTINUANCE AND REQUEST TO APPEAR BY TELEPHONE
       In her sole issue on appeal, K.B. argues that the trial court abused its discretion in
denying her motion for continuance and her request to appear at trial by telephone.
       The denial of a motion for continuance is reviewed under an abuse of discretion standard.
Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—Dallas 2008, no pet.). The
denial will be reversed only if the trial court’s action was arbitrary, unreasonable, or without
reference to any guiding rules and principles.                Id. (citing BMC Software Belg. N.V. v.
Marchand, 83 S.W.3d 789, 800 (Tex. 2002)).
       In her brief, K.B. states that she made a motion for continuance and that the trial court
denied the motion. However, the record does not show that K.B. made any request—oral or
written—for a continuance. Nor is there any indication that the trial court ever ruled on a request
for a continuance. Therefore, we cannot conclude that any error occurred regarding a motion for
continuance.
       After the jury had been selected and sworn, and as the trial began, K.B.’s attorney said as
follows:


       Your Honor, I forgot to make it of record that I proposed to let my client be able to appear by
       phone, and I had had other objections by counsel, and I know that it’s an absolute that if they don’t
       agree, my client can’t appear, but I do want to make sure that it was of record that I requested it
       earlier.


The Department and the attorney ad litem objected to K.B.’s request. The trial court denied
K.B.’s request, stating “[y]eah, we’re not going to do that” because it was impractical. K.B.’s
attorney then announced “ready” and the case proceeded to trial.
       In her brief, K.B. states that she resided in New Jersey, had lost her identification, and
thus, was unable to fly to attend the trial. However, she did not provide the trial court with this


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information. She argues that the trial court’s refusal to allow her to appear by telephone violated
her “constitutional protected rights” to the parent-child relationship. But she did not raise this
issue in the trial court. See Tex. Dep’t of Protective and Regulatory Svcs. v. Sherry, 46 S.W.3d
857, 861 (Tex. 2001) (holding that claims, including constitutional claims, must have been
asserted in trial court in order to be raised on appeal).        Because K.B. did not raise her
constitutional claim at trial, she has waived it. See id.
         K.B.’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled K.B.’s sole issue on appeal, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice


Opinion delivered October 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 30, 2015


                                         NO. 12-15-00182-CV


                   IN THE INTEREST OF J.J., J.J. AND J.J., CHILDREN


                                Appeal from the 349th District Court
                         of Anderson County, Texas (Tr.Ct.No. 349-7390)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
