Court of Appeals of Texas, Third District, Austin
J. G., Appellant
Texas Department of Family and Protective Services, Appellee
THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO.
18-0013-CPSC1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING
Chief Justice Rose, and Justices Triana and Smith
(Father) appeals from a judgment terminating his parental
rights to his children, T.G. (aged eleven) and A.G. (aged
ten). 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.
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.
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
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).
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
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. 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).
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, 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. See id.
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.
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
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.
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.
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."). We will accordingly address Father's
challenges to the trial court's findings under subsection
(D) and (E).
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 ...