In re K.M.R., a Child, 14-25-00870-CV, March 19, 2026.
On appeal from the 313th District Court of Harris County, Texas.
Synopsis
The 14th Court of Appeals affirmed a decree of parental termination, holding that the Mother’s failure to verify her motion for continuance—as mandated by Texas Rule of Civil Procedure 251—precluded her from raising a due process challenge to the denial of that motion on appeal. Substantively, the court reaffirmed that prenatal drug use is legally sufficient to support endangerment findings under both Subsections D and E, even where the child was removed immediately upon birth.
Relevance to Family Law
For the family law practitioner, this case underscores the unforgiving nature of error preservation in the context of trial management. Even in a high-stakes termination proceeding where a parent is physically absent due to medical or behavioral health reasons, the practitioner cannot bypass the technical requirements of Rule 251. Strategically, this opinion also clarifies the scope of Subsection D, narrowing the defensive argument that a mother cannot “place” a child in an endangering environment if she never had post-birth custody; the court confirms that the environment includes the womb during pregnancy.
Case Summary
Fact Summary
The Department of Family and Protective Services sought to terminate the Mother’s parental rights after the child, Kate, tested positive for cocaine at birth. Throughout the pendency of the case, the Mother demonstrated a pattern of drug abuse, testing positive for cocaine, methamphetamine, and PCP, and eventually ceasing all drug testing months before trial. Notably, the Mother had already seen her parental rights terminated as to three of her other children.
Days before the final trial, the Mother voluntarily checked herself into a behavioral hospital. A caseworker testified that the Mother admitted she did so “because she really didn’t want to come to court” and intended to use the stay as a basis for an appeal. Mother’s counsel filed an unopposed motion for continuance, which was unverified. The trial court denied the motion and proceeded to trial in the Mother’s absence, ultimately terminating her rights on the grounds of endangerment and failure to comply with her service plan.
Issues Decided
- Whether the Mother preserved her constitutional due process challenge regarding the denial of her motion for continuance.
- Whether evidence of prenatal drug use and failure to maintain sobriety supports findings under Texas Family Code § 161.001(b)(1)(D) and (E).
- Whether termination was in the child’s best interest given the Mother’s history and the child’s placement with a relative seeking adoption.
- Whether the Mother had standing to challenge the Department’s appointment as the child’s sole managing conservator.
Rules Applied
- Texas Rule of Civil Procedure 251: A motion for continuance shall not be granted except for “sufficient cause supported by affidavit.”
- Texas Family Code § 161.001(b)(1)(D) & (E): Provides the predicate grounds for termination based on endangering conditions or conduct, including conduct occurring during pregnancy.
- In re N.G., 577 S.W.3d 230 (Tex. 2019): Requires appellate courts to review the legal and factual sufficiency of the evidence supporting findings under Subsections D and E due to their collateral consequences.
- Standard of Review for Preservation: Constitutional arguments, including due process claims, must be raised in the trial court to be preserved for appellate review.
Application
The court’s analysis centered on the procedural failure to verify the motion for continuance. While the Mother argued that her physical absence and hospitalization made the trial fundamentally unfair, the Court of Appeals noted that Rule 251 is a bright-line requirement. Because the motion lacked an affidavit or verification, the Mother failed to satisfy the “formalities” required to preserve the issue. Furthermore, the court noted that the Mother failed to raise a specific constitutional due process objection when the trial court denied the motion, which is a prerequisite for appellate relief on those grounds.
Regarding the endangerment findings, the court addressed the Mother’s reliance on In re L.E.R., where it was previously suggested that a mother could not “place” a child in endangering conditions if the child never lived with her. The court distinguished this, clarifying that Subsection D applies to the period before removal, which includes the in utero environment. The Mother’s admitted cocaine use during the third trimester and her positive test at delivery constituted an endangering environment. Similarly, under Subsection E, the Mother’s continued drug use throughout the case—including methamphetamine and PCP—demonstrated a voluntary course of conduct that endangered the child’s well-being.
Holding
The Court of Appeals held that the Mother waived her right to challenge the denial of the continuance because the motion was unverified and no constitutional objection was made at the trial level. The court affirmed that a trial court does not abuse its discretion in denying a non-compliant motion for continuance, particularly when evidence suggests the party’s absence is a tactical choice.
The court further held that the evidence was legally and factually sufficient to support termination under both Subsections D and E. The Mother’s repeated drug use, both pre- and post-birth, created a firm belief or conviction in the factfinder that the child’s physical and emotional well-being was endangered. Finally, the court held that because the termination was supported by the evidence, the Mother lacked standing to challenge the Department’s conservatorship appointment, as her parental rights had been extinguished.
Practical Application
- Verification is Mandatory: Never file a motion for continuance in a termination case without a supporting affidavit from the client or the attorney (if based on personal knowledge). Even an “unopposed” status does not cure a lack of verification under Rule 251.
- Constitutional Objections: If a continuance is denied and you believe it infringes on your client’s due process rights, you must explicitly state the constitutional grounds on the record to preserve the error.
- Combatting the L.E.R. Defense: When representing the Department or an Intervenor, cite In re K.M.R. to argue that Subsection D applies to the prenatal environment, effectively neutralizing the “never had custody” defense.
Checklists
Preservation of Continuance Error
- Ensure the motion is in writing.
- Attach a sworn affidavit or verification (TRCP 251).
- If based on a medical emergency, provide specific medical documentation via affidavit.
- Obtain a clear ruling on the record.
- State specifically: “Denial of this motion violates my client’s State and Federal Due Process rights to be present at a trial of such fundamental importance.”
Defending Subsection D & E Findings
- Document all prenatal positive drug tests.
- Secure testimony from investigators regarding admissions of drug use during pregnancy.
- Link prenatal drug use to potential medical outcomes for the infant (meconium testing).
- Highlight the parent’s failure to submit to drug testing during the pendency of the suit as evidence of continued use.
Citation
In re K.M.R., a Child, No. 14-25-00870-CV, 2026 WL [TBD] (Tex. App.—Houston [14th Dist.] Mar. 19, 2026, no pet. h.).
Full Opinion
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