J. G. v. Texas Department of Family and Protective Services ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00447-CV
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
OPINION
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.
1 We refer to the children and their family members by their initials or an alias. See Tex.
R. App. P. 9.8 (relating to protection of minors’ identity in appeal of cases involving termination
of parental rights).
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
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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
2 Trial courts deciding whether to grant an inmate’s request for a bench warrant are to
consider factors including: the cost and inconvenience of transporting the prisoner to the
courtroom; the security risk to the court and public posed by the inmate; whether the inmate’s
claims are substantial; whether resolution of the litigation can reasonably be delayed until the
inmate’s release; whether the inmate can and will offer admissible, noncumulative testimony that
cannot be presented by deposition, telephone, or some other means; whether the inmate’s
presence will facilitate judging his or her demeanor or credibility; whether trial is to the court or
3
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,
a jury; and the inmate’s probability of success on the merits. In re Z.L.T., 124 S.W.3d 163, 165–
65 (Tex. 2003).
3 Father did not raise the issue of alternative participation in his brief to this Court.
However, we must treat every issue “as covering every subsidiary question that is fairly
included.” Anderson v. Durant, 550 S.W.3d 605, 617 (Tex. 2018) (citing Tex. R. App. P.
38.1(f)). We will assume without deciding that Father’s appellate issue fairly includes the issue
of whether the trial court should have allowed him to participate in another way.
4
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.
4 The dissent argues this case is not meaningfully distinguishable from Larson
v. Giesenschlag, another case involving an incarcerated father defending a termination suit. Post
at ___ (citing Larson v. Giesenschlag, 368 S.W.3d 792, 796–98 (Tex. App.—Austin 2012, no
pet.)). Larson (the child’s father) asked the trial court to postpone the final termination hearing
so he could find counsel to represent him, and later asked for appointed counsel. Larson,
368 S.W.3d at 794. He also submitted an affidavit and other documents setting out facts and
arguments in opposition to the petition. Id. at 794–95. The trial court denied his requests,
refused to consider his written submissions, and terminated his parental rights. Id. at 795.
Larson argued on appeal that the trial court’s refusal to allow him to participate violated his due
process rights. Id. at 796. We agreed and held the trial court had abused its discretion by
“effectively barring him from presenting his case at trial.” Id. at 798. The dissent argues that
“[a] similar situation occurred here” with Father as the defendant. Post at ___. But Father was
represented by counsel, who presented his case at trial and opposed the Department’s petition,
one of the means of participation Larson requested and was denied. This Court did not hold in
Larson that due process requires that inmates participate through a specific means. See Larson,
368 S.W.3d at 798 (“While the trial court was not obligated to allow Larson to participate in any
particular manner, it was obligated to allow Larson to participate in some meaningful manner.”).
Because it is distinguishable, we conclude Larson does not compel us to reverse the trial court’s
judgment of termination.
5
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
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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
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(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 possible ill effects
of a less-than-ideal family environment,” but it is not necessary that the conduct was directed at
the child or that the child actually suffered injury. Id.
Subsections (D) and (E) differ in respect to the source of the danger to the child.
Subsection (D) focuses on the child’s physical environment, “although the environment
5 The Court reached this holding because terminating parental rights under subsection
(D) or (E) can result in termination of the parent’s rights to other children. Subsection (M)
authorizes termination if the parent previously “had his or her parent-child relationship
terminated with respect to another child based on a finding that the parent’s conduct was in
violation of Paragraph (D) or (E).” Tex. Fam. Code § 161.001(b)(1)(M). An appellate court’s
refusal to review a challenged subsection (D) or (E) finding thus “eliminates the parent’s only
chance for review of a finding that will be binding as to parental rights to other children.” In re
N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam). To ensure parents receive the “meaningful
appeal” due process requires, appellate courts must review challenged subsection (D) or (E)
findings even when, as here, the trial court made another finding that is sufficient to uphold the
judgment. See id. at 235, 237; In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019) (per curiam).
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produced by the conduct of the parent[] bears on the determination of whether the child’s
surroundings threaten his well-being.” In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.—
Houston [1st Dist.] 2019, no pet.) (quoting Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied)). In contrast, subsection (E) focuses on danger posed by
the parent’s conduct. Id. A single act or omission can support termination under subsection (D),
but termination under subsection (E) must be based on “a voluntary, deliberate, and conscious
course of conduct.” Id.
“As a general rule, conduct that subjects a child to a life of uncertainty
and instability endangers the physical and emotional well-being of a child.” In re J.O.A.,
283 S.W.3d 336, 345 n.4 (Tex. 2009) (citation omitted). Evidence of a parent’s criminal history,
convictions, and resulting imprisonment may establish an endangering course of conduct. In re
J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Evidence of domestic
violence is also relevant to endangerment, even if the violence is not directed at the child. In re
P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Furthermore,
domestic violence “may produce an environment that endangers the physical or emotional
well-being of a child” supporting termination under subsection (D). Id.
Mother testified that Father physically abused her for ten years, sometimes in
front of the children. When asked to describe the degree of violence, she replied: “I don’t know
how I’m still alive today is how bad it was.” The violence was constant and ceased only when
he went to prison. Carpenter, the Department’s caseworker, testified that Father is currently
serving a prison sentence for the offense of felon in possession of a firearm. Father was a felon
as result of a previous conviction for assaulting one of his older children (not involved in this
case). Father does not address whether his conduct endangered the children or created a
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dangerous environment for them. Instead, he contends too much time has passed for this
behavior to be relevant. We reject this argument because the trier of fact is entitled to consider
the parent’s behavior throughout the lives of the children. See In re E.C.R., 402 S.W.3d 239, 248
n.7 (Tex. 2013) (noting trier of fact can consider parental actions before and after child’s birth
when determining endangerment) (citing In re J.O.A., 283 S.W.3d at 345). Reviewing the record
under the applicable standards, we conclude legally and factually sufficient evidence supports
the trial court’s finding that Father engaged in a course of conduct that endangered the physical
and emotional well-being of the children and that subjected them to a dangerous home
environment. See Tex. Fam. Code § 161.001(b)(1)(D), (E).
Best Interest
We next consider Father’s challenge to the trial court’s finding that termination is
in the best interest of the children. “[T]he prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.” Id. § 263.307(a). There is also a
strong but rebuttable presumption that the best interest of the child is served by keeping him or
her with their natural parents. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). To
determine whether termination serves the child’s best interest, we consider factors such as:
• the children’s wishes;
• the children’s present and future emotional and physical needs;
• any emotional and physical danger to the children now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist the individuals seeking custody to promote the
best interest of the children;
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• the plans for the children by the individuals or agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions which may indicate that the existing parent-
child relationship is improper; and
• any excuse for the parent’s acts or omissions.
In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976)). The absence of evidence on some of these considerations
does not preclude a finding that termination is in the child’s best interest, “particularly if the
evidence were undisputed that the parental relationship endangered the safety of the child.” In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Father argues that there is no evidence he would endanger the children because he
has not been violent toward them since 2014. However, “[a] trier of fact may measure a parent’s
future conduct by his past conduct and determine whether termination of parental rights is in the
child’s best interest.” In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.).
Mother testified that Father’s violence stopped only because he was incarcerated, and there is no
dispute that Father has been incarcerated for most of the time since 2014. The trial court could
also consider Father’s history of domestic violence against Mother and that the children
witnessed some of it. See In re M.D.M., 579 S.W.3d at 771 (noting evidence of domestic
violence in home is relevant to several Holley factors). Moreover, Father’s multiple periods of
incarceration raise the possibility that he will continue to engage in criminal activity and risk
imprisonment in the future. See In re J.S., 584 S.W.3d at 635 (“Routinely subjecting a child to
the probability that she will be left alone because her parent is in jail, endangers the child’s
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physical and emotional well-being.” (quoting In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El
Paso 2012, no pet.))).
Father insists that he has maintained a relationship with the children through
letters and that there is no evidence they want the relationship to end. There was testimony that
the children received his letters, but Carpenter testified that the children expressed to her that
they “do not want to have contact with their father” and are afraid of him. Tiffany Jayne, a
volunteer with the Court Appointed Special Advocate program, confirmed that the children
“consistently” expressed they want no contact with Father. Jayne and Carpenter both testified
that the children enjoy a happy and stable life with Cady and recommended terminating Father’s
rights to remove lingering uncertainty from their lives.
Reviewing the record under the appropriate standards of review and considering
the relevant factors, we conclude that legally and factually sufficient evidence supports the trial
court’s finding that termination is in the best interest of the children. We overrule Father’s
remaining appellate issues.
CONCLUSION
We affirm the trial court’s judgment.
__________________________________________
Edward Smith, Justice
Before Chief Justice Rose, and Justices Triana and Smith
Dissenting Opinion by Justice Triana
Affirmed
Filed: December 4, 2019
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