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In re R.F.

Court of Appeals of Texas, Fourth District, San Antonio

January 29, 2014

IN THE INTEREST OF R.F. III, a Minor Child [1]

Page 487

From the 407th Judicial District Court, Bexar County, Texas. Trial Court No. 2012-PA-01485. Honorable Richard Garcia, Judge Presiding.

For APPELLANT: James B. Peplinski, Law Office of James B. Peplinski, San Antonio, TX.

For APPELLEE: Susan D. Reed, District Attorney, Bexar County, San Antonio, TX; Kevin Charles Terrill, Assistant District Attorney, San Antonio, TX.

Opinion by Patricia O. Alvarez, Justice. Sitting: Karen Angelini, Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice.

OPINION

Page 488

Patricia O. Alvarez, Justice.

Appellant Raymundo F. appeals the trial court's order terminating his parental rights to R.F. III, a minor child. On appeal, Raymundo argues (1) the trial court's decision to proceed with the termination hearing in his absence was an abuse of discretion and (2) the trial court's decision to terminate Raymundo's parental rights, without providing Raymundo any meaningful way to participate in the proceedings, violated Raymundo's due process rights. Because Appellant failed to follow the Texas Rules of Civil Procedure governing a continuance, the trial court did not abuse its discretion in denying the motion for continuance. Additionally, because the record does not indicate any offer of proof was made to the trial court regarding Raymundo's absence, the trial court's decision to terminate Raymundo's parental rights in his absence did not violate Raymundo's due process rights. We affirm the trial court's judgment.

Procedural History

On June 26, 2012, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Raymundo was incarcerated throughout the entire proceedings. The case was initially set for hearing on June 3, 2013. On that day, Raymundo's counsel requested a continuance, which was not contested by the Department because of pending DNA testing results. The case was continued to June 28, 2013. On June 26, 2013, Raymundo's counsel filed a Motion for Continuance and also sought a bench warrant for Raymundo's participation in the hearing. At the time, Raymundo was being held at the GEO Correction Facility in San Antonio. In the motion, Raymundo's counsel set forth why Raymundo's personal participation was important, what his testimony would be, and how it would be relevant to the matters at hand. Raymundo's counsel also filed several letters with the court regarding Raymundo's love for his son, his desire for the child's placement with one of Raymundo's relatives, and his attempts to comply with the court-ordered service plan.

The trial court signed the bench warrant on June 27, 2013, directing the warden of GEO Corrections Facility to make arrangements for Raymundo to participate in the termination hearing set for June 28, 2013, via video-link . The termination hearing, however, was reset to July 29, 2013. On July 3, 2013, the trial court signed a new bench warrant ordering the Bexar County Sheriff's Office to produce Raymundo, in person, from the San Antonio facility for the July 29th hearing.

On July 19, 2013, Raymundo was transferred to a facility in Oklahoma City and then subsequently transferred to another facility in another state. Neither his counsel

Page 489

nor his Department caseworker was ever made aware of the transfer, the date of his transfer, or the name of the facility to which Raymundo was moved. The July 29, 2013 hearing was again postponed until August 14, 2013, based on Raymundo's absence and lack of contact between Raymundo and his counsel. The record does not contain any request for the trial court to issue a new bench warrant for Raymundo's appearance, either in person or by video link, at the last scheduled hearing.

On the day of the August 14, 2013 hearing, Raymundo's counsel again announced " not ready" on the grounds that Raymundo was not present. The trial court denied the " not ready" announcement and proceeded with the hearing. After the hearing, the trial court signed an order terminating Raymundo's parental rights based on findings that Raymundo (1) constructively abandoned R.F. III and (2) failed to comply with the provisions of the court-ordered service plan. See Tex. Fam. Code Ann. § 161.001(1)(N), (O) (West Supp. 2013). The trial court also determined parental termination would be in R.F. III's best interest. See id . § 161.001(2). After his parental rights were terminated, Raymundo perfected this appeal.

Raymundo does not challenge the sufficiency of the evidence to support the termination of his parental relationship with R.F. III. Instead, he contends that the trial court erred by denying his counsel's " not ready" announcement and failing to issue a new bench warrant for his appearance.

Trial Counsel's Not Ready Announcement

Raymundo contends that because his counsel obtained a signed bench warrant from the trial court on July 3, 2013, Raymundo should have been brought to the August 14th hearing. The record, however, shows that at the August 14th hearing, his counsel announced " not ready" on the grounds that the necessary arrangements were never made to secure Raymundo's participation during the hearing. Raymundo nonetheless asserts the trial court abused its discretion in proceeding with the termination hearing in his absence when it previously granted a bench warrant for the original hearing date. He argues that when the trial court discovered the State's failure to produce Raymundo pursuant to the bench warrant, the trial ...


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