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In re L.G.T.

Court of Appeals of Texas, Fifth District, Dallas

June 26, 2017

IN THE INTEREST OF L.G.T., A MINOR CHILD, Appellant

         On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-52455-2016

          Before Justices Evans, Stoddart, and Boatright

          MEMORANDUM OPINION

          JASON BOATRIGHT JUSTICE

         The father of L.G.T. ("Father") appeals the termination of his parental rights. Following a bench trial, the trial court found that (1) Father had committed four statutory predicate acts supporting termination, and (2) termination of Father's parental rights was in L.G.T.'s best interest. Because there is no evidence that Father received reasonable notice of the trial setting, we reverse the trial court's judgment and remand the cause for new trial.

         Background

         Father is incarcerated as a result of his conviction for assault bodily injury/family violence. L.G.T.'s mother ("Mother") filed a petition on May 3, 2016, seeking to terminate Father's parental rights. She pleaded five separate grounds for termination, including that Father "knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and the inability to care for the child for not less than two years from the date this petition is filed." See Tex. Fam. Code Ann. § 161.001(b)(1)(Q) (West Supp.2016) (grounds for involuntary termination). Mother filed an amended petition on May 9, 2016, reciting that Father could be served with citation in the Dallas County Jail. The record contains a return of service, and Father appeared and answered on May 23, 2016.

         The trial court signed a scheduling order on June 3, 2016, setting the case for trial on August 29, 2016. On August 3, 2016, Father filed a motion for continuance of the August 29 trial date, explaining that he had not been convicted of an offense but instead was "presently incarcerated awaiting trial to resolve this matter." Citing family code section 161.201(a), Father requested a continuance "until the criminal charges are resolved." See Tex. Fam. Code Ann. § 161.2011(a) (West 2014) (if criminal charges are filed against parent "that directly relate to the grounds for which termination is sought, " parent may request continuance of final trial until charges resolved).

         The record reflects that on August 29, 2016, Mother's counsel appeared, and the trial court noted that (1) Father was in custody and had filed a motion for continuance, and (2) no amicus attorney had been appointed. The case did not proceed to trial.

         On September 1, 2016, the trial court signed an order appointing Brook Fulks as amicus attorney pursuant to family code section 107.021. Tex. Fam. Code Ann. § 107.021(a)(1) (West 2014) (discretionary appointment of amicus attorney). Fulks wrote a letter to Father at the John Middleton Transfer Facility in Abilene explaining her appointment and asking to speak with him so that she could make a report to the trial court. She also explained that the case was "set for final trial on December 5, 2016, at 9:00 a.m. in the 429th Judicial District Court of Collin County." The letter, dated September 28, 2016, was directed to Father individually and was sent by certified mail, return receipt requested. The record contains a green card showing receipt by W. Gladden as "agent" on October 4, 2016.

         On November 10, 2016, Father filed a "Request for Appointment of Attorney Ad Litem to Represent Respondent and Motion for Issuance of Bench Warrant or in the Alternative, Motion for Continuance." He explained that he was indigent and requested that the court "appoint an attorney ad litem to represent Respondent's interests in this lawsuit." He also explained that he was "presently incarcerated in the NJ-Baten Unit of the Texas Department of Criminal Justice-Correctional Institutions Division in Pampa, Texas, as a result of the conviction for a felony offense." He stated that he was entitled to be present at trial, and argued that the child's best interest could not be fairly determined "without Respondent being at the hearing to testify on his own behalf and to assist counsel in the presentation of evidence, cross-examination of witnesses, and defense of this suit." He requested that the court issue a bench warrant to permit him to appear at trial, or in the alternative, to continue the trial date until his release from custody.

         The case did not proceed to trial on December 5, 2016. On January 5, 2017, the trial court sent a letter addressed to "Texas Department of Criminal Justice, Baten Unit (NJ)" in Pampa, Texas, stating:

Greetings,
This letter is to inform you that inmate [identification of Father by name and TDC number] has been ordered to appear telephonically for a Trial Before the Court in cause #429-52455-2016; In the Interest of [L.G.T.].
[Father] is ordered to be available by phone on January 30, 2017 at 9:00 am.
Inmate: [Father's ...

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