in the Interest of S.N.C., a Child ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00101-CV
IN THE INTEREST OF S.N.C., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-98174J-13
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MEMORANDUM OPINION1
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Appellant S.C. (Father) appeals from the trial court’s order terminating his
parental rights to S.N.C. We affirm.
On March 24, 2013, the Texas Department of Family and Protective
Services (DFPS) received a report alleging the neglectful supervision of S.N.C.
1
See Tex. R. App. P. 47.4.
by C.E. (Mother) and Father. S.N.C. was removed from the home and placed
with a neighbor until DFPS could seek temporary managing conservatorship of
S.N.C. On March 26, 2013, DFPS filed a suit affecting the parent-child
relationship (the SAPCR), requesting temporary managing conservatorship of
S.N.C. and the termination of Father’s and Mother’s parental rights. See Tex.
Fam. Code Ann. § 262.101 (West 2014). The trial court entered an emergency
order naming DFPS as S.N.C.’s temporary managing conservator, appointing an
attorney ad litem for S.N.C., and setting a full adversary hearing. See id. §
262.102 (West 2014).
A full adversary hearing was held on April 5, 2013, at which DFPS, Father,
Mother, and S.N.C.’s attorney ad litem appeared. After the hearing, the trial
court entered the following findings:
(1) there was a danger to the physical health or safety of the child
which was caused by an act or failure to act of the persons entitled
to possession and for the child to remain in the home is contrary to
the welfare of the child; (2) the urgent need for protection required
the immediate removal of the child and makes efforts to eliminate or
prevent the child’s removal impossible or unreasonable; and (3)
notwithstanding reasonable efforts to eliminate the need for the
child’s removal and enable the child to return home, there is a
substantial risk of a continuing danger if the child [is] returned home.
See id. § 262.201(b) (West 2014). The trial court also entered temporary orders
that again appointed DFPS as temporary managing conservator of S.N.C.,
limited Mother’s and Father’s access to S.N.C., and required DFPS to conduct a
home study of B.M., Father’s cousin. See id. §§ 105.001, 262.201(c) (West
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2014). The trial court later appointed B.M. to be the temporary possessory
conservator of S.N.C. See id. § 262.201(e).
DFPS created a family-service plan for Mother and Father. Under the
plan, Father was required to regularly attend Alcoholics Anonymous meetings,
“actively engage” in parenting classes, complete anger-management classes,
submit to random drug testing, attend visitation with S.N.C., maintain stable
housing and employment, attend individual counseling, and “cease all criminal
activity.” Father made “some progress” on many of these requirements but never
attended individual counseling. On September 19, 2013, Father was convicted
of driving while intoxicated and placed on community supervision for eighteen
months. On November 8, 2013, Father was convicted of assault causing bodily
injury and sentenced to thirty days’ confinement.2 Father ultimately was
incarcerated in Arkansas for a parole violation.
On February 13, 2014, five days before the trial on the SAPCR was set to
begin, Father filed a motion for continuance requesting that the trial be delayed
so he could “continue working his services and to work towards return of his
child.” He further noted that he was incarcerated in Arkansas and would not be
able to be at the trial because he was “scheduled to have brain surgery in the
coming months in prison.” He also filed a motion for bench warrant requesting
that the trial court “issue a bench warrant or other legal remedy to permit . . .
2
This charge was the result of Father choking Mother on August 16, 2013.
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Father to be present for the final trial.” Father recognized in the motion, however,
that “a bench warrant could not be issued for an inmate out of state.” On the first
day of the trial, the trial court denied the motions and conducted a bench trial
without Father being present. Father was represented by counsel at the trial.
The trial court heard evidence regarding Mother’s and Father’s neglectful
supervision of S.N.C. and their failure to fully comply with their service plans.
The trial court terminated Mother’s and Father’s parental rights on endangerment
grounds and in the child’s best interests. See Tex. Fam. Code Ann. §§ 161.001,
161.206 (West 2014). The trial court appointed DFPS as S.N.C.’s managing
conservator and B.M. as her possessory conservator. See id. § 161.207 (West
2014). Father appeals from the termination of his parental rights.3
In a sole issue, Father argues that the trial court erred by denying his
motion for a bench warrant. He does not attack the sufficiency of the evidence to
support the termination order. We review the trial court’s denial of Father’s
request for a bench warrant for an abuse of discretion, i.e., whether the trial court
acted in an arbitrary or unreasonable manner or acted without reference to any
guiding rules or principles. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003);
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
The right to appear in a civil proceeding is not absolute, and an inmate’s right to
personally appear must be weighed against the integrity of the correctional
3
Mother signed a relinquishment of her parental rights and does not
appeal.
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system. Z.L.T., 124 S.W.3d at 165. Several factors are relevant in the
determination of whether to grant an inmate’s request for a bench warrant: (1)
the cost and inconvenience of bringing the inmate to the court proceeding, (2) the
security risk to the court and the public; (3) whether the inmate’s claims are
substantial; (4) whether the court hearing can reasonably be delayed until the
inmate’s release; (5) whether the inmate can produce admissible, noncumulative
testimony that cannot be effectively presented by deposition, telephone, or other
means; (6) whether the hearing is before a judge or a jury; and (7) the inmate’s
probability of success on the merits. Id. at 165–66. The inmate has the sole
burden to justify the necessity of his presence by producing factual information
showing these factors. Id. at 166.
In his motion for a bench warrant, Father recited the factors the trial court
was to consider and stated that his presence was necessary to “testify about the
steps . . . Father has taken to complete his service plan, his relationship with his
child[,] and the factors which contradict the State’s position that termination is in
the child’s best interest.” In arguing the motion, Father’s counsel stated
[Father] has had contact with me since being incarcerated [in
Arkansas] and has notified me that he absolutely wants to appear in
court. He would like to participate in this proceeding. And,
obviously, I am unable to secure his attendance here.
As is the policy of this Court, I did notify the court coordinator
that he was incarcerated, and she did notify me that because he is
out of state she did not believe that the court had the ability to get
him here.
DFPS did not oppose Father’s request.
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The Court denied the motion for a bench warrant:
Well, the Court makes every effort to have clients, parents present
for these hearings, and that’s why the coordinator regularly sends
out a notice to attorneys reminding them if their clients are
incarcerated they must bench warrant. However, my power to
bench warrant them is only in the State of Texas am I able to get
them here, when they’re incarcerated within Texas. I don’t believe
that I have the ability to get someone from Arkansas here.
As stated above, Father was incarcerated in Arkansas at the time of trial
and he was represented by counsel during the trial. The trial court heard
evidence about the successful steps Father took to comply with the service plan,
and the DFPS conservatorship supervisor admitted that she did not know if
S.N.C. had “bonded” with Father. However, the trial court also heard evidence of
the physically and mentally abusive relationship between Father and Mother and
that they repeatedly negligently supervised S.N.C. S.N.C. was doing well in her
placement with B.M., and B.M. planned to adopt S.N.C.
We conclude Father failed to meet his burden to justify the necessity of his
presence. Many of the arguments raised in his motion for a bench warrant to
justify the necessity of his presence at trial were addressed at trial by his
counsel. Father did not ask to attend the trial by phone, deposition, or other
means, and any testimony regarding his partial compliance with the service plan
would have been cumulative of the admitted evidence. Additionally, Father failed
to provide factual information establishing why his interest in appearing
outweighed the impact on the correctional system. The trial court did not abuse
its discretion in denying Father’s motion for a bench warrant. See, e.g., id.; In re
6
R.F. III, 423 S.W.3d 486, 490–91 (Tex. App.—San Antonio 2014, no pet.); In re
R.S., 252 S.W.3d 550, 553–54 (Tex. App.—Texarkana 2008, no pet.); In re
E.M.C., No. 11-08-00235-CV, 2009 WL 1653028, at *6 (Tex. App.—Eastland
June 11, 2009, no pet.).
For these reasons, we overrule Father’s sole issue and affirm the trial
court’s judgment. See Tex. R. App. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DAUPHINOT, J., concurs without opinion.
DELIVERED: July 10, 2014
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