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J. G. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

December 4, 2019

J. G., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 18-0013-CPSC1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING

          Before Chief Justice Rose, and Justices Triana and Smith

          OPINION

          Edward Smith, Justice.

         J.G. (Father) appeals from a judgment terminating his parental rights to his children, T.G. (aged eleven) and A.G. (aged ten).[1] 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.

         BACKGROUND

         In 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.

         At the 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 appealed.

         CONTINUANCE

         Father 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).

         Trial 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 trial.

         "All 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.[2] 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).

         Further, 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,[3] 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.[4] See id.

         Having 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.

         SUFFICIENCY CHALLENGE

         The 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 (Tex. 1979)).

         We 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.

         A 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.

         Predicate Finding

         Father 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.").[5] We will accordingly address Father's challenges to the trial court's findings under subsection (D) and (E).

         Subsection 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 ...


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