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.
In re E.L.D., a Child Page 2 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,
In re E.L.D., a Child Page 3 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
In re E.L.D., a Child Page 4 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.
In re E.L.D., a Child Page 5 BURDEN OF PROOF
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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.
In re E.L.D., a Child Page 2 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,
In re E.L.D., a Child Page 3 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
In re E.L.D., a Child Page 4 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.
In re E.L.D., a Child Page 5 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.
In re E.L.D., a Child Page 6 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.
In re E.L.D., a Child Page 7