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In re C.E.C.

Court of Appeals of Texas, Fifth District, Dallas

May 22, 2017


         On Appeal from the 255th Judicial District Court Dallas County, Texas, Trial Court Cause No. DF-08-10464

          Before Justices Bridges, Evans, and Schenck.



         Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between C.E.C. and her father. On appeal, Father raises three issues in which he contends (1) the order of termination is not supported by the evidence, (2) the trial court erred by continuing the trial without his participation in the proceedings, and (3) the evidence is legally and factually insufficient for the trial court to terminate his parental rights and that such termination is in the best interest of the child. We reverse on the procedural, second issue and do not address the merits of this case.


         On May 26, 2016, C.E.C.'s paternal grandmother filed an original petition to terminate the parent-child relationship of Father. On January 1, 2016, Grandmother was married. On July 7, 2016, Grandmother and her husband (petitioners) filed a first amended petition. On July 20, 2016, petitioners filed a second amended petition in which they sought to terminate both parents' parental rights and adopt C.E.C. At the final hearing on September 20, 2016, Father appeared by his attorney's cell phone for trial due to his incarceration. Father advised the trial court that he did not believe his appointed attorney was acting in his best interest and asked to represent himself. Father's attorney submitted an oral motion to withdraw which the trial court granted. Because Father's attorney need to leave with his cell phone, the trial court then advised Father that he had five minutes to call back into the court or the court would move forward with the trial. Before the call was terminated, Father advised the trial court that "the institution is having an issue with their phone service" and the "phone service has an issue with calling long distance." The trial court waited for Father to call in and, after twenty-four minutes, the trial resumed without Father's telephonic presence. On October 10, 2016, Father filed a motion to reconsider and rehearing in which he alleged he was harmed by not being allowed to participate in the trial. On October 20, 2016, the trial court signed a final order terminating Father's parental rights. On November 8, 2016, Father filed a second request to reconsider and to request a rehearing. Father now appeals from the trial court's order of termination.


         In his second issue, Father contends that he was denied due process of law under the United States Constitution and due course of law under the Texas Constitution. See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. Specifically, Father asserts that he was denied a fair trial because he was not permitted to participate either by counsel or by teleconference.

         A. Deprivation of Procedural Due Process

         The Fourteenth Amendment to the United States Constitution protects against deprivation of life, liberty, or property by the State "without due process of law." See U.S. Const. amend. XIV. The Texas Constitution provides that "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law to the land." Tex. Const. art. I, § 19. The Texas "due course" and federal "due course" have been interpreted to be "without meaningful distinction." In re R.M.T., 352 S.W.3d 12, 17 (Tex. App.-Texarkana 2011, no pet.). Therefore, Texas courts have traditionally followed federal due process interpretations of procedural due process. Id.

         Procedural due process guarantees the right to a fair procedure. Id. In analyzing a claim of deprivation of procedural due process, we apply a two-part test: (1) whether the complaining party has a liberty or property interest entitled to protection; and (2) if so, what process is due. Logan v. Zimmerman, 455 U.S. 422, 428 (1982). Parents have a fundamental liberty interest "in the care, custody, and management of their child." Santosky v. Kramer, 455 U.S. 745, 753 (1982). This fundamental liberty interest does not evaporate simply because the parents have not been "model parents or have lost temporary custody of their child to the State." Id.

         Having recognized that a constitutionally-protected parent-child relationship is at stake, we now turn to what process is due to Father. The proper test for analyzing the constitutionality of a procedure in the parental rights termination context is the three-part balancing test established in Mathews v. Eldridge, 424 U.S. 319 (1976). Santosky, 455 U.S. at 754. The balancing test includes the consideration of the following factors: (1) the private interest affected by the proceeding or official action; (2) the countervailing governmental interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of the private interest due to the procedures used. Eldridge, 424 U.S. at 335. Courts must weigh these factors to determine whether the fundamental requirements of due process have been met by affording an opportunity to be heard at a meaningful time and in a meaningful manner under the circumstances of the case. In re D.W., 498 S.W.3d 100, 112 (Tex. App.-Houston [1st Dist.] 2016, no pet.).

         B. The Eldridge Factors

         1. Private interests ...

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