in the Interest of C.M.R., D.C.R., A.N.R., and D.R.R., II, Children ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-07-394-CV
IN THE INTEREST OF C.M.R, D.C.R.,
A.N.R., AND D.R.R., II, CHILDREN
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Danny R., pro se, appeals from the trial court’s order terminating his
parental rights in his children, C.M.R., D.C.R., A.N.R., and D.R.R., II. We
affirm.
II. Factual and Procedural History
Danny is an inmate in the Missouri prison system. In October 2006,
Victoria, the children’s mother, filed a petition to terminate Danny’s parental
1
… See Tex. R. App. P. 47.4.
rights, alleging as grounds that Danny had been convicted or placed on
community supervision for causing the death of or serious bodily injury to a
child and had knowingly engaged in criminal conduct that had resulted in his
conviction of an offense and confinement or imprisonment and inability to care
for the children for not less than two years from the date of the petition’s filing.
In November 2006, Danny filed a motion for appointment of counsel and
an answer, admitting that he had pleaded guilty to causing a person’s death but
denying that the person was a child and stating that he had not abandoned his
children. Danny did not generally deny the allegations in Victoria’s petition, and
he did not specifically deny that he had knowingly engaged in criminal conduct
that resulted in his imprisonment for at least two years into the future. He also
filed a petition for habeas corpus ad testificandum.
The trial court set the case for trial on February 20, 2007. Danny filed
another motion for appointment of counsel, another petition for writ of habeas
corpus ad testificandum, asserting that his testimony at trial was necessary,
and a motion to be allowed to participate in the trial telephonically.
The trial court did not reach the case on February 20, so it reset the trial
for October 15. Victoria’s counsel sent Danny a letter stating that the trial
court “has given you the opportunity to be heard and present your evidence by
affidavit.”
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Danny filed an amended answer on October 9, stating that he “believ[ed]
that no such grounds exist for termination.” He admitted that he was
incarcerated for rape but asserted that it was only a second-degree felony and
that his conviction and imprisonment did not necessarily support termination.
Danny attached several exhibits to his amended answer, including Victoria’s
response to his request for disclosure, in which she stated that one basis for
termination she would attempt to prove at trial was his conviction for sexually
assaulting a minor under the age of fourteen years. He also attached his own
affidavit, reminiscing about his experiences and feelings as a father and touting
his parental abilities and jailhouse efforts at self-improvement, such as attending
Narcotics Anonymous meetings and working toward his G.E.D.
The trial court heard the case on October 15. Victoria was the only
witness. She testified that Danny was the presumed father of the children, that
he was serving time in Missouri on a conviction of sexually assaulting a child,
that he had also been convicted for causing the death of a different child while
he was driving while intoxicated, that he had never supported the children, that
he had a drug problem, that he was violent towards her and the children, that
termination was in the children’s best interest, and that she was in a
relationship with a man who wanted to adopt the children. After Victoria
rested, the trial court said to her counsel, “He [Danny] filed some pleadings and
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so forth. You saw those, right?” Counsel answered, “Yes . . . . I would just
note that he didn’t deny any of the allegations nor did he claim any support in
those affidavits.”
The trial court terminated Danny’s parental rights, finding as grounds that
Danny had
a. been convicted or placed on community supervision . . . for
being criminally responsible for the death or serious injury of
a child under section 21.11 of the Texas Penal Code
[indecency with a child] and
b. knowingly engaged in criminal conduct that has resulted in
his conviction of an offense and confinement or
imprisonment and inability to care for the children for not less
than two years from the date the petition was filed
and that termination was in the children’s best interest. Danny filed this appeal.
III. Due Process
In his first issue, Danny argues that the trial court denied him due process
by failing to grant his requests for appointment of counsel, for a writ of habeas
corpus ad testificandum, and to participate in the trial telephonically, thereby
depriving him of a meaningful opportunity to be heard.
All 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. In re D.D.J., 136 S.W.3d 305,
313–14 (Tex. App.—Fort Worth 2004, no pet.). A prisoner’s right to have
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access to the courts entails not so much his personal presence as the
opportunity to present evidence or to contradict the evidence of the opposing
party. Id. Should the court find that the pro se inmate in a civil action is not
entitled to leave prison to appear personally in court, then it should allow the
prisoner to proceed by affidavit, deposition, telephone, or other effective
means. Id.
A. Appointment of Counsel
No statutory right to appointed counsel exists in a private termination
suit. In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet.
filed). The legislature has mandated the appointment of counsel for indigent
parents in a termination suit only “in a suit filed by a governmental entity in
which termination of the parent-child relationship is sought.” Compare Tex.
Fam. Code Ann. §§ 107.001(1), .015(a), (b), .021 (Vernon 2005) (appearing
to permit, in a private termination suit, permissive appointment of an attorney
ad litem for a parent and payment of such attorney ad litem “by one or more
of the parties”) with § 107.013(a)(1) (mandating appointment of attorney ad
litem for an indigent parent in a termination suit filed by a governmental entity);
see also Tex. Gov’t Code Ann. § 24.016 (Vernon 2004) (stating that “[a]
district judge may appoint counsel to attend the cause of a party who makes
an affidavit that he is too poor to employ counsel to attend to the cause”)
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(emphasis added); Gibson v. Tolbert, 102 S.W.3d 710, 712–13 (Tex. 2003)
(recognizing courts’ inherent power to appoint counsel in civil cases under
exceptional circumstances). Nor does due process require the appointment of
counsel in every termination case, even when the State initiates the termination
proceeding. Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 31–32, 101 S. Ct.
2153, 2161–62 (1981). Because the appointment of counsel in a private
termination is within the trial court’s sound discretion, we overrule this part of
Danny’s first issue. See id., 101 S. Ct. at 2161–62; In re J.C., 250 S.W.3d
at 489.
B. Habeas Corpus ad Testificandum
The writ of habeas corpus ad testificandum is also known as a bench
warrant. In re Z.L.T., 124 S.W.3d 163, 164 (Tex. 2003). We review a trial
court’s ruling on a bench warrant request for an abuse of discretion. See id. at
165. A litigant cannot be denied access to the courts simply because he is an
inmate. Id. However, our laws do not guarantee an inmate the absolute right
to personally appear in every court proceeding. Id. “Instead, the inmate’s right
of access to the courts must be weighed against the protection of our
correctional system’s integrity.” Id.
Texas courts consider several factors when deciding whether to grant a
prisoner’s request for a bench warrant, including (1) the expense and
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inconvenience of transporting the inmate to court; (2) whether the inmate
presents a security risk to the court and public; (3) whether the inmate has
substantial claims; (4) whether the proceeding can reasonably be delayed until
the inmate’s release; (5) whether the inmate “can and will offer admissible,
noncumulative testimony that cannot be effectively presented by deposition,
telephone, or some other means”; (6) whether the inmate’s “presence is
important in judging his demeanor and credibility”; (7) whether the case will be
tried before a jury or to the court; and (8) the inmate’s probability of success
on the merits. Id. at 165–66 (explaining that in recognizing these factors,
Texas courts have followed Stone v. Morris, 546 F.2d 730, 735–36 (7th Cir.
1976)).
“In general, our rules place the burden on litigants to identify with
sufficient specificity the grounds for a ruling they seek. A litigant’s status as
an inmate does not alter that burden.” Z.L.T., 124 S.W.3d at 166 (citations
omitted). An inmate who claims a constitutional right to access must explain
“why his appearance in court [is] necessary to preserve his constitutional
right[.]” Id. The trial court does not have a duty to independently inquire into
“relevant facts not provided by the moving party.” Id. Rather, the inmate who
seeks a bench warrant “must justify the need for his presence.” Id.
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In Z.L.T., the supreme court noted that the inmate’s request for a bench
warrant provided no information that would allow the trial court to assess the
necessity for his appearance. Id. While the Z.L.T. inmate’s request listed the
Stone factors, the request “failed to provide any factual information showing
why his interest in appearing outweighed the impact on the correctional
system.” Id. The court also noted that the only pertinent information in the
inmate’s request was that he was incarcerated in a facility more than 200 miles
from the trial court. Id. The court held that the inmate failed to meet his
burden to establish his right to relief and that the trial court did not abuse its
discretion by overruling the bench warrant request. Id.
In this case, Danny did not list the Stone factors or recite facts relevant
to those factors. His first request stated only that he was incarcerated in
Missouri, that he could not afford an attorney, and that he would be
substantially and irreparably prejudiced by his inability to attend trial. His
second request made essentially the same assertions and noted the serious
nature of the termination proceeding. He offered no facts showing that his
interest in appearing outweighed the impact and burden on the correctional
system. See Z.L.T., 124 S.W .3d at 166. Nor did Danny explain why his
appearance by alternative measures, such as by telephone, deposition, or
affidavit, would not be sufficient under the circumstances of this case. See id.
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at 165–66 (noting that one of the Stone factors is whether the testimony
cannot effectively be presented by deposition, telephone, or other means).
Because Danny’s bench warrant requests did not recite facts supporting
the Stone factors, we hold that the trial court did not abuse its discretion by
denying his request.
C. Telephonic Appearance
When a trial court denies a request for a bench warrant and does not
allow an inmate to appear in person, it should afford the inmate the opportunity
to proceed by affidavit, deposition, telephone, or other means. D.D.J., 136
S.W.3d at 314; Boulden v. Boulden, 133 S.W.3d 884, 886–87 (Tex.
App.—Dallas 2004, no pet.); see also Z.L.T., 124 S.W.3d at 165–66. Again,
we review the trial court’s ruling on an appellant’s request to participate at trial
by alternate means for an abuse of discretion. See Boulden, 133 S.W.3d at
886.
Here, the trial court afforded Danny the opportunity to appear by
affidavit, and he took advantage of that opportunity by filing affidavits. Danny
argues that had he appeared telephonically, he could have objected to Victoria’s
counsel’s leading questions and cross-examined Victoria about the details of his
conviction for causing another individual’s death, and particularly the victim’s
age. While some of the questions counsel asked Victoria were leading, we
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cannot see how Danny’s telephonic objection to the questions would have
changed the proceeding’s outcome, even if the trial court had sustained his
objections. As for cross-examining Victoria about the age of the person whose
death Danny admits he caused, he contested Victoria’s assertion that the
person was a child in several of his verified trial court pleadings, and he could
have done so in his trial affidavit as well. Under the circumstances presented
here, we hold that Danny has failed to show that the trial court abused its
discretion by allowing him to appear by affidavit rather than telephonically.
To sum up, due process does not require appointment of counsel. See
Lassiter, 452 U.S. at 31–32, 101 S. Ct. at 2162. But it does require a trial
court to give an incarcerated litigant some opportunity to be heard, be it in
person, telephonically, or by affidavit. D.D.J., 136 S.W.3d at 314; Boulden,
133 S.W.3d at 886. In this case, the trial court did not abuse its discretion by
refusing to appoint counsel or by denying Danny’s requests to appear in person
and telephonically, and the trial court fulfilled Danny’s due process rights by
allowing him to appear by affidavit. We therefore overrule Danny’s first issue.
IV. Sufficiency of the Evidence
In his second issue, Danny argues that “[t]he [trial] court erred in its
findings favoring [Victoria], as [she] failed to meet the burden of proof
necessary for termination.” Because Danny’s issue implicates the burden of
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proof, rather than arguing the absence of any evidence, we construe his issue
as a challenge to the factual sufficiency of the evidence. See Tex. R. App. P.
38.9.
A. Standard of Review
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish at least one
ground listed under subdivision (1) of the statute and must also prove that
termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001
(Vernon Supp. 2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both
elements must be established; termination may not be based solely on the best
interest of the child as determined by the trier of fact. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The petitioner must justify termination by clear and convincing evidence.
Tex. Fam. Code Ann. §§ 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002). This intermediate standard falls between the preponderance
standard of ordinary civil proceedings and the reasonable doubt standard of
criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re
C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied). It is
defined as the “measure or degree of proof that will produce in the mind of the
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trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2002).
When reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the verdict with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated the relevant conduct provision of
section 161.001(1) and that the termination of the parent’s parental rights
would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). If, in light of the entire record, the disputed evidence that a reasonable
fact-finder could not have credited in favor of the finding is so significant that
a fact-finder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient. H.R.M., 209
S.W.3d at 108. We may affirm termination only on a ground that was both
pleaded by the party seeking termination and found by the trier of fact. In re
J.R.S., 232 S.W.3d 278, 285 (Tex. App.—Fort Worth 2007, no pet.); Vasquez
v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 194 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied).
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B. Unassigned Error
Danny did not challenge the trial court’s findings under section
161.001(1) of the family code, nor does he now appeal the termination of his
parental rights with regard to those findings. 2 See Tex. Fam. Code Ann.
§ 161.001(1). An appellate court cannot reverse on “unassigned error,” i.e.,
a ground not presented in the appellate briefs. Pat Baker Co. v. Wilson, 971
S.W.2d 447, 450 (Tex. 1998). Because Danny does not appeal on the basis
of the trial court’s findings under section 161.001(1), we may not address the
2
… In his appellate brief, Danny states, “Clearly, given Appellant’s
incarceration, he wouldn’t and didn’t deny having committed a felony. In and
of itself, this could satisfy the first prong for termination.” In his closing, he
adds,
It was Appellant’s admission of incarceration which can lead a
reasonable trier of facts to substantiate the first prong necessary
for setting up a possible termination of his parental rights.
However, it was the second prong [the best interest finding on
which] she [Victoria] struggled to live up to the burden of proof.
Furthermore, Danny admitted in his pleadings that he had been
incarcerated for rape, and he admitted that his anticipated release date was
eighteen months from October 9, 2007, or around April 1, 2009. Victoria filed
the original petition to terminate his parental rights on October 19, 2005. See
Tex. Fam. Code Ann. § 161.001(1)(Q) (stating that a ground for termination of
parental rights is that the parent knowingly engaged in criminal conduct that
resulted in his conviction of an offense and confinement and inability to care for
the children for not less than two years from the date of filing the petition).
The trial court found that subsection (Q) was proven by clear and convincing
evidence.
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factual sufficiency of the evidence to support those findings. See id.; see also
In re B.L.D., 113 S.W.3d 340, 350–51 (Tex. 2003) (declining to extend
fundamental error doctrine to termination cases for review of unassigned error).
C. Best Interest Finding
Danny complains only that the trial court did not consider “all the weight
of the evidence” as to the best interest finding under section 161.001(2). See
Tex. Fam. Code Ann. § 161.001(2). He argues,
So, when it comes to proving what’s in the best interest of the
children, and all one has to go on is a she said/he said scenario, the
question begs to be asked, did she meet that burden of proof
when, all things considered, either parent’s answers could rightly
be seen as self-serving, as each would see their position as being
in the “best interest”?
He claims that, with regard to the best interest finding, Victoria did not meet
the clear and convincing standard of proof necessary to terminate his parental
rights.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include: (1) the desires of the child;
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(2) the emotional and physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available
to assist these individuals to promote the best interest of the child; (6) the plans
for the child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley
v. Adams, 544 S.W .2d 367, 371–72 (Tex. 1976). These factors are not
exhaustive; some listed factors may be inapplicable to some cases; other
factors not on the list may also be considered when appropriate. C.H., 89
S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. Id. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
Victoria testified that Danny was in jail in Missouri for a felony conviction
and that he had been convicted for sexual contact with a child and rape of a
child. She testified that he had also been convicted for being criminally
responsible for the death or serious bodily injury of a twelve-year-old child four
or five years before, although that was not the crime for which he was
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presently incarcerated. She also testified that he had never provided support
to her and the children, that he had a drug problem, that he had been violent
toward her and the children, and that she felt that it was in the children’s best
interest that his parental rights be terminated. Victoria added that she had been
in her current relationship with another man for three years, that she hoped he
would adopt her children, and that he (the other man) wanted this as well. The
trial court granted to Victoria her requested relief.
In her response to Danny’s request for disclosure under rule 194.2(c),
Victoria stated:
Respondent has been convicted of Rape-1st Degree-Sexual
Intercourse with a person less than fourteen years old and upon
release from prison the Respondent will have to register as a sex-
offender, and Respondent has been convicted of selling alcohol to
a minor. Respondent has never had a job nor has ever support[ed]
the children. Respondent has abused alcohol and drugs.
Tex. R. Civ. P. 194.2(c) (stating that a party may request disclosure of “the
legal theories and, in general, the factual bases of the responding party’s claims
or defenses”).
Danny admitted that he had been incarcerated for second-degree rape but
not first degree rape as Victoria stated in her discovery response. And he
stated that his alleged conviction for “selling alcohol to a minor” was actually
for his own underage drinking. Danny admitted that he was convicted of
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vehicular manslaughter, but he claimed that his passenger, who died, was
approximately twenty or twenty-one years old, “making her, presumably, not
a child in the eyes of the law.”
Danny attached a brief work history showing that he had been employed
with one company from 1999–2000; worked for Dairy Queen for two months
in 2000; performed freelance construction and carpeting from 2000–2001; and
went on social security disability because of injury in a serious car wreck from
2001–2004. He suggested that the allegations of physical and verbal abuse
fell under “normal and ‘societally acceptable’ forms of disciplinary action”
because Victoria did not present any police reports, “Department of Family
Services” reports, or medical records to back up the claims.
Danny complained that Victoria had cut off his contact with his children
while he was incarcerated. He stated that if the court ordered him to take any
parenting classes or supervised visits, he would “gladly” do that. Danny
averred that he loved his children, that he had “taken complete responsibility
for [his] actions and [had] great remorse,” and that his parental rights should
not be terminated. He stated that, while incarcerated, he had taken anger
management and G.E.D. classes, participated in job corps, placed himself on
the waiting list for Narcotics Anonymous, and continuously sent Christmas
presents and birthday cards to his children.
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Based on this record, the trial court could have reasonably formed a firm
conviction or belief that termination of Danny’s parental rights would be in the
children’s best interest. See C.H., 89 S.W.3d at 28. Notwithstanding
Victoria’s testimony, Danny’s own admissions about his criminal history
contradict his argument that termination of his parental rights would not be in
the children’s best interests. And if the trial court chose to believe Victoria’s
testimony, it could reasonably have found that Danny never financially
supported the children, that he was violent, that he had a drug problem, and
that, contrary to Danny’s assertions, he was unlikely to change. Therefore, we
overrule Danny’s second issue.
V. Conclusion
Having overruled Danny’s two issues, we affirm the trial court’s order
terminating Danny’s parental rights in C.M.R., D.C.R., A.N.R., and D.R.R., II.
PER CURIAM
PANEL: MCCOY, J.; CAYCE, C.J.; and GARDNER, J.
GARDNER, J. concurs without opinion.
DELIVERED: November 20, 2008
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