in the Interest of B.S. and B.S., Children ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00004-CV
IN THE INTEREST OF B.S. AND
B.S., CHILDREN
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FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 231-533770-13
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MEMORANDUM OPINION1
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This is an appeal from a private termination of parental rights proceeding
filed by the children’s maternal grandmother and her husband. Appellant, the
children’s father, is presumed indigent; he was represented by appointed counsel
at trial, but is pro se on appeal. See Tex. Fam. Code Ann. § 107.021(a) (West
2014); Tex. R. App. P. 20.1(a)(3); In re D.L.S., No. 02-10-00366-CV, 2011 WL
2989830, at *2 (Tex. App.––Fort Worth July 21, 2011, no pet.) (mem. op.). In
three issues, he challenges (1) the sufficiency of the evidence to support the trial
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See Tex. R. App. P. 47.4.
court’s best interest finding, (2) the trial court’s refusal to reschedule the trial or
make alternate arrangements so that appellant could better hear the
proceedings, which he attended via telephone, and (3) the effectiveness of his
appointed trial counsel. We affirm.
Background
Appellant’s youngest child, now five, has lived with appellees since
December 2010 when she was thirteen months old; his oldest child, now six, has
lived with them since April 2011 when he was two years old. Appellant lived at
appellees’ house with the children and their mother for about a month in 2011,
after moving to Texas from Wisconsin with the couple’s older child. The
children’s mother passed away in 2012. Appellant has been incarcerated since
July 2011 for the offense of indecency with an unrelated child and was still
incarcerated at the time of trial. His projected release date is in May 2018. The
trial court appointed counsel for appellant at trial and allowed him to appear by
telephone.
Sufficiency
In his first issue, appellant contends that the trial court’s best-interest
decision was based upon false evidence given by appellees. He points to his
own testimony contradicting appellees’ assertions that neither he nor his family
had provided financial support for the children during his incarceration and that
he had engaged in family violence against the children’s mother. However, the
factfinder––here, the trial judge––is the sole judge of the credibility of witnesses
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and may choose to believe one witness over another. In re J.O.A., 283 S.W.3d
336, 346 (Tex. 2009). There is credible evidence that appellant kicked mother
out of their home in Wisconsin, with their youngest child, while she was pregnant
so that she was forced to return to Texas to live with her parents; that he hit the
children’s mother during an argument while she was undergoing cancer
treatments; that he is a convicted child sex offender; that the children do not have
a relationship with him or his family; that the children have been in appellees’
sole care for over two years and have lived with them for the majority of their
lives; and that the children have a good relationship with appellees and are doing
well in their care. See, e.g., Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). Because the evidence the factfinder could have chosen to believe is
sufficient under the appropriate standard of review to support a best interest
finding, we overrule this issue. See Tex. Fam. Code Ann. § 101.007 (West
2014); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).
Fairness of Proceeding
In his second issue, appellant contends that he did not receive a fair trial
because he could not hear or understand the proceedings as a result of
participating by telephone.
Appellant did indicate an inability to hear the proceedings at several times
during the trial, as set forth below:
THE COURT: [Appellant], were you able to hear the attorneys?
[Appellant]: I -- barely, but I can make -- make of it.
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THE COURT: All right. Let me ask the attorneys to pull the
microphones right up to you and speak right into the microphones.
The trial court then asked appellant to state his name; he did so and then
responded to several questions without the need for them to be repeated. The
court had to remind a witness and lawyer to speak up:
THE COURT [to the witness]: Please speak up . . . .
THE WITNESS: Oh! I’m sorry.
....
THE COURT: Speak up, please.
....
THE COURT: All right.
[Appellant], can you hear [your counsel] alright?
[Appellant]: She needs to speak up just a little bit louder that’s all.
THE COURT: If you’ll both -- both [attorneys], if you will pull the
microphone where you are speaking right into the microphone,
please.
[Appellant’s counsel]: Yes, sir.
After this exchange, appellant testified on direct for at least twenty-five
pages with no apparent problems, other than asking to repeat one question.
Appellant asked appellees’ counsel to repeat a question four times during his
cross-examination that lasted for eighteen pages. But each time, he was able to
answer when the question was repeated.
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Appellant never objected to the lack of a bench warrant for his personal
appearance at the hearing, nor did he inform the trial court that he was unable to
adequately follow the proceedings. The record shows that appellant occasionally
had trouble hearing the proceedings. But it also shows that when appellant
asked for a question to be repeated, he was able to answer it the second time.
Additionally, there are long periods of time in his own testimony that he was able
to respond to a series of questions without asking for them to be repeated, and
his answers are responsive to the questions asked. The trial court was diligent in
reminding the attorneys to speak into the microphone so that appellant could
hear, and appellant was able to engage in colloquy with the court as well.
Accordingly, we conclude and hold that to the extent this issue was preserved or
did not need to be preserved, the record does not show such an unfairness in the
proceedings as to undermine appellant’s right to due process. See Tex. R. App.
P. 33.1, 44.1(a); In re G.C., 66 S.W.3d 517, 525 (Tex. App.––Fort Worth 2002,
no pet.). We overrule appellant’s second issue.
Effectiveness of Counsel
Appellant’s third issue relates to his appointed counsel. He contends that
she was unable to effectively prepare for trial because they could only
communicate via mail because of his incarceration, that she did not have enough
time to prepare, and that she was ineffective due to the small amount of time she
had to prepare appellant’s case for trial.
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Appellant filed an answer to appellees’ suit––in which he requested
appointment of counsel––in April 2013. The trial court held a hearing regarding
the appointment of counsel in July 2013 but did not appoint counsel for appellant
until August 30, 2013. The trial court notified TDCJ by letter dated September 4,
2013 to make appellant available for the trial by phone. Although the trial was
originally scheduled for October 2, 2013, it was rescheduled to December 4,
2013.
Thus, the record shows that appellant’s appointed counsel had at least
three months to prepare for trial. Nothing in the trial record shows that counsel
objected to the lack of preparation time, nor does the record show that counsel or
appellant made the court aware of any difficulties in communication about the
case. Appellant’s counsel attempted to introduce into evidence letters appellant
said he wrote to the children and sent to his sister for delivery. Counsel had
some difficulty authenticating the handwritten letters in appellant’s absence, but
the trial court ultimately admitted them for purposes of showing that appellant
had attempted to communicate with the children through his sister, whether or
not the letters were ultimately delivered to the children by appellees.
Because of the absence of any evidence in the record showing that
appellant’s trial counsel was inadequately prepared or had trouble
communicating with appellant for the purpose of adequately presenting his case
to the trial court, we conclude and hold that appellant has not shown that his trial
counsel was inadequate under the appropriate standard of review. See In re
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C.S., No. 13-13-00095-CV, 2013 WL 3895818, at *8 (Tex. App.––Corpus Christi
July 25, 2013, no pet.) (mem. op.); In re J.W., 113 S.W.3d 605, 616 (Tex. App.––
Dallas 2003, pet. denied), cert. denied, 543 U.S. 965 (2004); see also Strickland
v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984); In re
H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). We overrule his third issue.
Conclusion
Having overruled all three of appellant’s issues, we affirm the trial court’s
order terminating appellant’s parental rights to his two children.
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: December 18, 2014
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