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J.G., Appellant v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
J.G. (Father) appeals from a judgment terminating his parental rights to his children, T.G. (aged eleven) and A.G. (aged ten).1 Father, who was imprisoned throughout the case, challenges the denial of his motions for continuance and for issuance of a bench warrant to allow him to attend the trial in person. He also challenges the legal and factual sufficiency of the trial court's findings that he committed several statutory grounds for termination and that termination is in the best interest of the children. See Tex. Fam. Code § 161.001(b)(1), (2). We will affirm the trial court's judgment.
In February 2018, the Department of Family and Protective Services (the Department) removed the children from the care of their mother, A.K. (Mother), after receiving referrals alleging she used drugs extensively, sold drugs from the home, and neglected the children's basic needs. The Department placed the children with their adult sister, “Cady,” and filed a petition to terminate the rights of both parents. Mother and the Department reached a mediated settlement agreement calling for Cady to be appointed permanent managing conservator with Mother retaining conditional visitation rights. The Department's case against Father proceeded to a bench trial.
At the beginning of trial, Father's counsel made an oral motion for continuance and requested that the trial court issue a bench warrant to enable Father to attend in person. The trial court denied the motions and proceeded to the merits. The Department presented testimony from Mother and Department caseworker Michelle Carpenter. Tiffany Jayne, a volunteer with the Court Appointed Special Advocate program, testified for the children's attorney ad litem. The trial court found by clear and convincing evidence that Father committed four statutory grounds for termination and that termination was in the best interest of the children. See id. § 161.001(b)(1)(D), (E), (O), (Q), (b)(2). Father timely appealed.
Father initially challenges the trial court's denial of his motions for a continuance and for issuance of a bench warrant. We review both rulings for an abuse of discretion. See In re Z.L.T., 124 S.W.3d 163, 164 (Tex. 2003) (bench warrant); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (continuance). A trial court abuses its discretion if it acts “without reference to any guiding rules and principles.” Bennett v. Grant, 525 S.W.3d 642, 653 (Tex. 2017).
Trial courts may not grant a continuance “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. When a movant fails to comply with the affidavit requirement, reviewing courts generally presume the trial court did not abuse its discretion by denying the motion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Zeifman v. Nowlin, 322 S.W.3d 804, 812 (Tex. App.—Austin 2010, no pet.). Father did not file an affidavit in support of his oral motion, but he argues that a continuance was required by law because he was entitled to a bench warrant to attend the trial.
“All litigants forced to settle disputes through the judicial process have a constitutional right to be heard at a meaningful time in a meaningful manner.” In re L.N.C., 573 S.W.3d 309, 324 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Although inmates cannot be denied access to the courts simply because they are inmates, they do not have a constitutional right to appear in person in every court proceeding. In re Z.L.T., 124 S.W.3d at 165. Rather, courts must weigh the inmate's right of access against protection of the integrity of the justice system. Id. Courts consider a variety of factors when determining whether to grant a request for a bench warrant, and the inmate bears the burden to provide information justifying the need for his presence.2 Id. at 165–66. Father's counsel told the trial court that he received a letter from Father stating that he “wanted to be bench warranted,” but he did not explain why Father's interest in appearing outweighed the impact on the justice system. On this record, the trial court did not abuse its discretion by refusing to issue a bench warrant. See id. at 166 (holding denial of bench warrant was not abuse of discretion when inmate “failed to provide any factual information” justifying need for his presence).
Further, to the extent Father's briefing can be construed to complain about the trial court's failure to allow him to participate through an alternative means,3 we conclude the trial court did not abuse its discretion in not making such arrangements. When a trial court concludes an inmate is not entitled to appear in person, the court must consider allowing the inmate to participate “ ‘by some other effective means,’ such as by affidavit, deposition, or telephone.” Samaniego v. Office of the Attorney Gen. of Tex., No. 03-13-00014-CV, 2015 WL 1545933, at *2 (Tex. App.—Austin Apr. 3, 2015, no pet.) (mem. op.) (quoting Larson v. Giesenschlag, 368 S.W.3d 792, 798 (Tex. App.—Austin 2012, no pet.)). However, the inmate has the sole burden “to request access to the court through these alternate means and to demonstrate why a trial court should authorize them.” Brown v. Preston, No. 01-16-00556-CV, 2017 WL 4171896, at *3 (Tex. App.—Houston [1st Dist.] Sept. 21, 2017, no pet.) (mem. op.) (citation omitted); accord Vodicka v. Tobolowsky, No. 05-17-00961-CV, 2017 WL 5150992, at *1 (Tex. App.—Dallas Nov. 7, 2017, no pet.) (mem. op.); Ulloa v. Rodriguez, No. 04-15-00160-CV, 2016 WL 147265, at *1 (Tex. App.—San Antonio Jan. 13, 2016, no pet.) (mem. op.); In re T.R.C., Jr., No. 13-11-00616-CV, 2012 WL 3537828, at *3 (Tex. App.—Corpus Christi Aug. 16, 2012, no pet.) (mem. op.); In re C.N.M., No. 10-10-00178-CV, 2011 WL 1049383, at *2 (Tex. App.—Waco Mar. 23, 2011, no pet.) (mem. op.); Baugh v. Baugh, No. 14-07-00391-CV, 2008 WL 2068081, at *2 (Tex. App.—Houston [14th Dist.] May 15, 2008, no pet.) (mem. op.). The trial court has no “duty to go beyond the bench warrant request and independently inquire into the necessity of an inmate's appearance.” See In re Z.L.T., 124 S.W.3d at 166. Father made no request to appear through alternate means, and he provided no factual information demonstrating why his personal appearance via alternate means was necessary in addition to his counsel having appeared for him in the trial court. On this record, we cannot conclude the trial court abused its discretion.4 See id.
Having decided Father did not show he was entitled to a bench warrant, we conclude the denial of his motion for a continuance was not an abuse of discretion. See Villegas, 711 S.W.2d at 626; Zeifman, 322 S.W.3d at 812. We overrule Father's first issue.
The Family Code provides for involuntary termination of parental rights if a court finds that the parent's acts or omissions satisfy at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code § 161.001(b)(1), (2). The petitioner must prove these matters by “clear and convincing evidence.” Id. Clear and convincing evidence is “proof that 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. This is an intermediate standard that falls between the preponderance of the evidence standard used in ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re J.D.G., 570 S.W.3d 839, 850 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)).
We apply a standard of review on appeal that reflects this heightened burden of proof. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). The distinction between legal and factual sufficiency review in this context “lies in the extent to which disputed evidence contrary to a finding may be considered.” In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). In a legal sufficiency review, the reviewing court “cannot ignore undisputed evidence contrary to the finding, but must otherwise assume the factfinder resolved disputed facts in favor of the finding.” Id. at 630–31. Evidence is legally sufficient if, viewing the disputed and undisputed evidence in this manner, “a reasonable factfinder could form a firm belief or conviction that the finding was true.” Id. at 631.
A factual sufficiency review, in contrast, requires weighing the disputed evidence against the evidence supporting the finding. Id. The reviewing court must consider whether the “disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id. “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, then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 267.
Father challenges the sufficiency of the evidence supporting the trial court's findings under subsections (D), (E), and (O), but he does not address its finding under subsection (Q). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (Q). The trial court's finding under subsection (Q) is sufficient to uphold the judgment because only one finding is required to support termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (noting only one predicate finding required to terminate parental rights). We ordinarily would not address the trial court's other predicate findings because appellate courts should not address issues unnecessary to the disposition of an appeal. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). However, the Texas Supreme Court recently decided that due process requires appellate courts to review findings under subsections (D) and (E) even when another ground is sufficient to support termination. See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court thus violates the parent's due process and due course of law rights.”).5 We will accordingly address Father's challenges to the trial court's findings under subsection (D) and (E).
Subsection 161.001(b)(1)(D) authorizes termination if the parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(D). Subsection 161.001(b)(1)(E) authorizes termination if the parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Id. § 161.001(b)(1)(E). In this context, “endanger,” means “to expose to loss or injury; to jeopardize.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Endangerment encompasses “more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment,” but it is not necessary that the conduct was directed at the child or that the child actually suffered injury. Id.
Subsections (D) and (E) differ in respect to the source of the danger to the child. Subsection (D) focuses on the child's physical environment, “although the environment produced by the conduct of the parent[ ] bears on the determination of whether the child's surroundings threaten his well-being.” In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (quoting Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)). In contrast, subsection (E) focuses on danger posed by the parent's conduct. Id. A single act or omission can support termination under subsection (D), but termination under subsection (E) must be based on “a voluntary, deliberate, and conscious course of conduct.” Id.
“As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.” In re J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009) (citation omitted). Evidence of a parent's criminal history, convictions, and resulting imprisonment may establish an endangering course of conduct. In re J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Evidence of domestic violence is also relevant to endangerment, even if the violence is not directed at the child. In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Furthermore, domestic violence “may produce an environment that endangers the physical or emotional well-being of a child” supporting termination under subsection (D). Id.
Mother testified that Father physically abused her for ten years, sometimes in front of the children. When asked to describe the degree of violence, she replied: “I don't know how I'm still alive today is how bad it was.” The violence was constant and ceased only when he went to prison. Carpenter, the Department's caseworker, testified that Father is currently serving a prison sentence for the offense of felon in possession of a firearm. Father was a felon as result of a previous conviction for assaulting one of his older children (not involved in this case). Father does not address whether his conduct endangered the children or created a dangerous environment for them. Instead, he contends too much time has passed for this behavior to be relevant. We reject this argument because the trier of fact is entitled to consider the parent's behavior throughout the lives of the children. See In re E.C.R., 402 S.W.3d 239, 248 n.7 (Tex. 2013) (noting trier of fact can consider parental actions before and after child's birth when determining endangerment) (citing In re J.O.A., 283 S.W.3d at 345). Reviewing the record under the applicable standards, we conclude legally and factually sufficient evidence supports the trial court's finding that Father engaged in a course of conduct that endangered the physical and emotional well-being of the children and that subjected them to a dangerous home environment. See Tex. Fam. Code § 161.001(b)(1)(D), (E).
We next consider Father's challenge to the trial court's finding that termination is in the best interest of the children. “[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest.” Id. § 263.307(a). There is also a strong but rebuttable presumption that the best interest of the child is served by keeping him or her with their natural parents. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). To determine whether termination serves the child's best interest, we consider factors such as:
• the children's wishes;
• the children's present and future emotional and physical needs;
• any emotional and physical danger to the children now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist the individuals seeking custody to promote the best interest of the children;
• the plans for the children by the individuals or agency seeking custody;
• the stability of the home or proposed placement;
• the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and
• any excuse for the parent's acts or omissions.
In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). The absence of evidence on some of these considerations does not preclude a finding that termination is in the child's best interest, “particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Father argues that there is no evidence he would endanger the children because he has not been violent toward them since 2014. However, “[a] trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest.” In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). Mother testified that Father's violence stopped only because he was incarcerated, and there is no dispute that Father has been incarcerated for most of the time since 2014. The trial court could also consider Father's history of domestic violence against Mother and that the children witnessed some of it. See In re M.D.M., 579 S.W.3d at 771 (noting evidence of domestic violence in home is relevant to several Holley factors). Moreover, Father's multiple periods of incarceration raise the possibility that he will continue to engage in criminal activity and risk imprisonment in the future. See In re J.S., 584 S.W.3d at 635 (“Routinely subjecting a child to the probability that she will be left alone because her parent is in jail, endangers the child's physical and emotional well-being.” (quoting In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.))).
Father insists that he has maintained a relationship with the children through letters and that there is no evidence they want the relationship to end. There was testimony that the children received his letters, but Carpenter testified that the children expressed to her that they “do not want to have contact with their father” and are afraid of him. Tiffany Jayne, a volunteer with the Court Appointed Special Advocate program, confirmed that the children “consistently” expressed they want no contact with Father. Jayne and Carpenter both testified that the children enjoy a happy and stable life with Cady and recommended terminating Father's rights to remove lingering uncertainty from their lives.
Reviewing the record under the appropriate standards of review and considering the relevant factors, we conclude that legally and factually sufficient evidence supports the trial court's finding that termination is in the best interest of the children. We overrule Father's remaining appellate issues.
We affirm the trial court's judgment.
This is a parental-termination case in which J.G. (the father) is appealing the trial court's refusal to allow him to participate in the final hearing terminating his parental rights to his children.1 I would conclude that the trial court abused its discretion and because the Court concludes otherwise, I respectfully dissent.
Parental rights are “perhaps the oldest of the fundamental liberty interests” protected by the United States Constitution. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). They have been characterized as “essential,” “a basic civil right of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). Moreover, a termination decree is “complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child's right to inherit.” Id. “Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.” Id.
Additionally, “[a]ll litigants who are forced to settle disputes through the judicial process have a fundamental right under the federal constitution to be heard at a meaningful time in a meaningful manner.” Larson v. Giesenschlag, 368 S.W.3d 792, 796–97 (Tex. App.—Austin 2012, no pet.). “Litigants may not be denied reasonable access to the courts simply because they are inmates.” Id. at 797. Of course, “this does not mean that an inmate has an absolute right to personally appear in every proceeding.” Id. (citing In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003)). “However, if a pro se inmate is not allowed to participate in a proceeding in person, a trial court should nevertheless afford the inmate an opportunity to proceed by affidavit, deposition, telephone, or other effective means.” Id. “When a trial court's failure to act on an inmate's request for participation, in person or by other means, effectively bars the inmate from presenting his case, the trial court abuses its discretion.” Id. at 796 (citing In re B.R.G., 48 S.W.3d 812, 820 (Tex. App.—El Paso 2001, no pet.)).
In Larson, this Court held that the trial court abused its discretion in denying an inmate's request to participate in the final hearing terminating his parental rights. Id. at 793–94. This Court observed that “[t]he natural right that exists between parents and their children is one of constitutional dimension” and that “[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental status is [ ] a commanding one.” Id. at 798. Accordingly, the father “had a right to be heard” in the termination suit. Id. “While the trial court was not obligated to allow [the father] to participate in any particular manner, it was obligated to allow [the father] to participate in some meaningful manner.” Id. By denying the father's request to participate, the trial court “effectively barr[ed] him from presenting his case at trial,” which constituted an abuse of discretion. Id.
A similar situation occurred here. The record reflects that at the beginning of the termination hearing, the father's court-appointed counsel explained to the trial court that the father wanted to contest the termination of his parental rights and participate in the hearing:
Judge, as the Court knows I was on vacation for the past two weeks. I talked to my client before I went on vacation. He indicated to me that he was not in agreement with terminating his parental rights but he did not want to be bench warranted and so I let the Court know that. I told him I would appear today on his behalf.
Apparently while I was on vacation he wrote me a letter. I received it and I've been going through piles of mail since I got back. So as of yesterday, I was aware that in the letter he indicated that he wanted to be bench warranted and he wanted me to get in touch with him. So I have not been able to do that since I've gotten back but I needed to let the Court know that I need to make an oral motion for continuance and ask that my client be bench warranted.
Counsel added, “He told me that he wanted me to contest the termination of his parental rights. The only difference was that before I went on vacation he said he didn't want to be bench warranted. And in the letter he said that he did want to be bench warranted.” The trial court denied the request as follows: “Well, due to the statutory deadline that we have in place and we're in an extension period, the Court is going to move forward today.”
The case proceeded to trial and the Department presented its case for termination. One of the Department's witnesses was the mother of the children, who provided testimony regarding the father's alleged physical abuse of the mother. The record reflects that the Department relied heavily on this evidence in making its case against the father. During closing argument, the father's counsel explained to the trial court that it was difficult to contest the mother's testimony without the father's participation in the hearing:
As the Court knows I've lodged an objection to the fact that my client has not had the opportunity to be present here today. His due process rights have not been preserved because he has not had the opportunity to confront and cross examine the witnesses against him.
The testimony of [the mother,] although I understand how emotional it is, all we're hearing is from [the mother]. My client has not had an opportunity to present his own rebuttal to that or present any other witnesses who might rebut her testimony.
The trial court proceeded to terminate the father's parental rights.
I would conclude that the above representations and arguments by counsel put the trial court on notice that the father wanted to participate in the hearing in some manner so that he could rebut the Department's evidence, present his own evidence, and assist his counsel in contesting the termination of his parental rights. The trial court, by denying the father's request to participate in some meaningful manner, violated his due-process rights. See Larson, 368 S.W.3d at 798; see also Samaniego v. Office of the Att'y Gen., No. 03-13-00014-CV, 2015 WL 1545933, at *2 (Tex. App.—Austin Apr. 3, 2015, no pet.) (mem. op.) (concluding that although trial court did not abuse its discretion in denying inmate's request for bench warrant, it abused its discretion in not allowing inmate to participate by alternate means).
The Court concludes that the father waived his right to participate by alternate means by failing to make a specific request to do so or by demonstrating why his participation by alternate means was necessary. As support for this conclusion, the Court cites to In re Z.L.T., supra, a case in which the Texas Supreme Court held that a trial court has “no duty to go beyond the bench warrant request and independently inquire into the necessity of an inmate's appearance,” 124 S.W.3d at 166, and a series of opinions from our sister courts of appeals holding that an inmate seeking to participate through alternate means has the sole burden “to request access to the court through these alternate means and to demonstrate why a trial court should authorize them.” See Vodicka v. Tobolowsky, No. 05-17-00961-CV, 2017 WL 5150992, at *1 (Tex. App.—Dallas Nov. 7, 2017, no pet.) (mem. op.); Brown v. Preston, No. 01-16-00556-CV, 2017 WL 4171896, at *3 (Tex. App.—Houston [1st Dist.] Sept. 21, 2017, no pet.) (mem. op.); Ulloa v. Rodriguez, No. 04-15-00160-CV, 2016 WL 147265, at *1 (Tex. App.—San Antonio Jan. 13, 2016, no pet.) (mem. op.); In re T.R.C., No. 13-11-00616-CV, 2012 WL 3537828, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 16, 2012, no pet.) (mem. op.); In re C.N.M., No. 10-10-00178-CV, 2011 WL 1049383, at *2 (Tex. App.—Waco Mar. 23, 2011, no pet.) (mem. op.); Baugh v. Baugh, No. 14-07-00391-CV, 2008 WL 2068081, at *2 (Tex. App.—Houston [14th Dist.] May 15, 2008, no pet.) (mem. op.).
I find these cases unpersuasive and distinguishable. None of these cases involve the termination of parental rights and are of limited guidance here. See Z.L.T., 124 S.W.3d at 164, 166–67 (involving suit to establish paternity through genetic testing); Vodicka, 2017 WL 5150992, at *1 (involving hearing on indigency contest); Brown, 2017 WL 4171896, at *1, 3 (involving probate proceedings); Ulloa, 2016 WL 147265, at *1 (involving divorce proceedings); T.R.C., 2012 WL 3537828, at *1, 3 (involving child-support proceedings); C.N.M., 2011 WL 1049383, at *1–2 (same), Baugh, 2008 WL 2068081, at *1–2 (involving divorce proceedings); see also M.L.B. v. S.L.J., 519 U.S. 102, 127–28, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (observing that “what sets parental status termination decrees apart from mine run civil actions, even from other domestic relations matters such as divorce, paternity, and child custody,” is that “termination adjudications involve the awesome authority of the State ‘to destroy permanently all legal recognition of the parental relationship’ ” (quoting Rivera v. Minnich, 483 U.S. 574, 580, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987))).
Termination of parental rights amounts to “the total and irrevocable dissolution of the parent-child relationship” and thus “constitutes the ‘death penalty’ of civil cases.” In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring); see also In re E.L.T., 93 S.W.3d 372, 377–78 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (Guzman, J., concurring) (recognizing “quasi-criminal” nature of termination proceedings). For that reason, termination proceedings are “strictly scrutinized.” Holick, 685 S.W.2d at 20. Having strictly scrutinized the termination proceedings here, I cannot agree with the Court that the father waived his right to participate in the hearing by alternate means. The record reflects that the father communicated to his counsel that he wanted to participate in the hearing and contest the termination of his parental rights, that counsel conveyed the father's request to the trial court before the hearing began, seeking both a continuance and a bench warrant, and that counsel again objected during his closing argument that the trial court had denied the father his due-process rights by not allowing him the opportunity to participate in the hearing. Although the father did not make a specific request to participate by alternate means, it should have been apparent to the trial court, based on the context in which the request was made, that the father was seeking to participate in the hearing in some way, if not by personal appearance then by some other effective means. See Tex. R. App. P. 33.1(a) (“As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” (emphasis added)); see also Barina v. Barina, No. 03-08-00341-CV, 2008 WL 4951224, at *2 (Tex. App.—Austin Nov. 21, 2008, no pet.) (mem. op.) (“[T]he rules of appellate procedure do not require the use of magic words to preserve error.”); cf. In re K.M.L., 443 S.W.3d 101, 119–20 (Tex. 2014) (concluding that, “[b]ased on the record before [the court],” father did not waive his due-process right to notice of termination hearings).
On this record, I would conclude that the trial court abused its discretion in denying the father's request to participate in the hearing to terminate his parental rights. Accordingly, I would reverse the termination order and remand the cause to the trial court for a new hearing that affords the father his due-process right to meaningfully participate in the proceedings, if not by bench warrant then by “by affidavit, deposition, telephone, or other effective means.” See Larson, 368 S.W.3d at 797; In re A.W., 302 S.W.3d 925, 930 (Tex. App.—Dallas 2010, no pet.); In re D.D.J., 136 S.W.3d 305, 313–14 (Tex. App.—Fort Worth 2004, no pet.); In re Daugherty, 42 S.W.3d 331, 336 (Tex. App.—Texarkana 2001, no pet.); see also Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (“[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.”); In re M.A.R., No. 03-10-00444-CV, 2012 WL 593569, at *3–5 (Tex. App.—Austin Feb. 23, 2012, no pet.) (mem. op.) (concluding that although trial court did not abuse its discretion in denying inmate's request for bench warrant, it did abuse its discretion in denying inmate's request to participate by alternate means).
1. We refer to the children and their family members by their initials or an alias. See Tex. R. App. P. 9.8 (relating to protection of minors' identity in appeal of cases involving termination of parental rights).
2. Trial courts deciding whether to grant an inmate's request for a bench warrant are to consider factors including: the cost and inconvenience of transporting the prisoner to the courtroom; the security risk to the court and public posed by the inmate; whether the inmate's claims are substantial; whether resolution of the litigation can reasonably be delayed until the inmate's release; whether the inmate can and will offer admissible, noncumulative testimony that cannot be presented by deposition, telephone, or some other means; whether the inmate's presence will facilitate judging his or her demeanor or credibility; whether trial is to the court or a jury; and the inmate's probability of success on the merits. In re Z.L.T., 124 S.W.3d 163, 165–65 (Tex. 2003).
3. Father did not raise the issue of alternative participation in his brief to this Court. However, we must treat every issue “as covering every subsidiary question that is fairly included.” Anderson v. Durant, 550 S.W.3d 605, 617 (Tex. 2018) (citing Tex. R. App. P. 38.1(f)). We will assume without deciding that Father's appellate issue fairly includes the issue of whether the trial court should have allowed him to participate in another way.
4. The dissent argues this case is not meaningfully distinguishable from Larson v. Giesenschlag, another case involving an incarcerated father defending a termination suit. Post at 527 (citing Larson v. Giesenschlag, 368 S.W.3d 792, 796–98 (Tex. App.—Austin 2012, no pet.)). Larson (the child's father) asked the trial court to postpone the final termination hearing so he could find counsel to represent him, and later asked for appointed counsel. Larson, 368 S.W.3d at 794. He also submitted an affidavit and other documents setting out facts and arguments in opposition to the petition. Id. at 794–95. The trial court denied his requests, refused to consider his written submissions, and terminated his parental rights. Id. at 795. Larson argued on appeal that the trial court's refusal to allow him to participate violated his due process rights. Id. at 796. We agreed and held the trial court had abused its discretion by “effectively barring him from presenting his case at trial.” Id. at 798. The dissent argues that “[a] similar situation occurred here” with Father as the defendant. Post at 527. But Father was represented by counsel, who presented his case at trial and opposed the Department's petition, one of the means of participation Larson requested and was denied. This Court did not hold in Larson that due process requires that inmates participate through a specific means. See Larson, 368 S.W.3d at 798 (“While the trial court was not obligated to allow Larson to participate in any particular manner, it was obligated to allow Larson to participate in some meaningful manner.”). Because it is distinguishable, we conclude Larson does not compel us to reverse the trial court's judgment of termination.
5. The Court reached this holding because terminating parental rights under subsection (D) or (E) can result in termination of the parent's rights to other children. Subsection (M) authorizes termination if the parent previously “had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E).” Tex. Fam. Code § 161.001(b)(1)(M). An appellate court's refusal to review a challenged subsection (D) or (E) finding thus “eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children.” In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam). To ensure parents receive the “meaningful appeal” due process requires, appellate courts must review challenged subsection (D) or (E) findings even when, as here, the trial court made another finding that is sufficient to uphold the judgment. See id. at 235, 237; In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019) (per curiam).
1. Construing broadly the arguments in the father's brief, I would conclude that this issue is fairly included as a subsidiary question within the father's first issue on appeal, challenging the trial court's denial of the father's motion for continuance and request for a bench warrant. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”).
Edward Smith, Justice
Dissenting Opinion by Justice Triana
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Docket No: NO. 03-19-00447-CV
Decided: December 04, 2019
Court: Court of Appeals of Texas, Austin.
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