in the Interest of D.L.S., a Child ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00366-CV
IN THE INTEREST OF D.L.S.,
A CHILD
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Father, an inmate serving a life sentence and appearing here pro
se, appeals the trial court’s order terminating his parental rights to his daughter
D.L.S. as part of a private termination and adoption suit. In nine points, Father
raises due process and equal protection challenges and argues that the evidence
is insufficient to support the trial court’s order terminating his parental rights to
1
See Tex. R. App. P. 47.4.
D.L.S. Neither Mother nor D.L.S.’s adoptive Father filed a brief with this court.
We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Father married Mother in May 2000, and D.L.S. was born in October 2000.
Mother separated from Father in January 2002 because of Father’s drinking and
because she felt that she and D.L.S. were in danger. Mother and Father
divorced in May 2003, and the final divorce decree granted Father supervised
visitation only because he had failed to complete an alcohol evaluation and a
social study. Father last saw D.L.S. in 2002 or 2003 and made only one child
support payment.
In August 2005, Father was imprisoned on murder charges. He was
convicted and sentenced to life in prison.
In December 2007, Mother married Brian. Thereafter, in 2009, Mother and
Brian filed a private suit to terminate Father’s parental rights to D.L.S. and to
allow Brian to adopt D.L.S.
Father answered and requested appointed counsel and a bench warrant.
The trial court denied both requests. The trial court, however, wrote a letter to
Father explaining,
Please be advised that the law does not allow me to appoint you
counsel in this type of case. I will, however, make the Court
available to you to present your case. The Termination-Adoption
Hearing has been set for a final hearing on September 27, 2010 at
4:00 P.M. You may submit your testimony by sworn affidavits prior
to that time. In the alternative, if allowed by the Prison authorities
where you are incarcerated and if you can arrange it, I will allow you
2
to appear by telephone conference during the hearing. Notify the
Court of your intentions. Regardless, a final hearing in this matter
will be held September 27, 2010 at 4:00 P.M.
On the day of the hearing, Father filed a motion for continuance,
requesting a two-year continuance ―so that he may adequately represent
himself‖; a motion for reconsideration of his request for a bench warrant; a
motion to dismiss, arguing that the required service of notice was not affected on
him; and an affidavit of Father’s testimony. The trial court waited until 4:15 P.M.
and stated on the record that it had received no communication indicating that
Father had made arrangements for a telephone conference. Father’s affidavit
was read into the record:
[T]he testimony Respondent [Father] would give at the hearing
would be as follows: Respondent has never intentionally exposed
the child to any influence that would endanger the physical or
emotional well-being of his child, number one.
Number two, Respondent loves and cares for his child and
wishes to be involved in the care of his child in the future and assist
in the upbringing of his child.
The trial court then heard testimony from the attorney ad litem for D.L.S., from
Mother, and from Brian. The trial court thereafter found by clear and convincing
evidence that (1) Father had voluntarily left the child alone or in possession of
another without providing adequate support of the child and remained away for a
period of at least six months, (2) Father had knowingly engaged in criminal
conduct that resulted in his conviction of an offense and confinement or
imprisonment and inability to care for the child for not less than two years from
3
the date the petition was filed, and (3) termination of the parent-child relationship
between Father and D.L.S. was in D.L.S.’s best interest. The trial court heard
additional testimony from Mother and Brian and then granted the adoption and
name change.
Following the entry of the judgment, Father filed a request for findings of
fact and conclusions of law, a notice of appeal, a motion to recuse the trial judge,
and a motion for new trial. Father now raises nine points on appeal.
III. LACK OF NOTICE ARGUMENT IS MOOT
In his first point, Father argues that the required service under Texas Rule
of Civil Procedure 103 was not affected on him because he was not properly
notified of the suit by registered mail. The record contains a copy of the citation,
and the return portion is blank. However, Father acknowledges that this may be
a moot point because he filed an answer, which constituted an appearance in
this case. See Tex. R. Civ. P. 121 (stating that ―[a]n answer shall constitute an
appearance of the defendant so as to dispense with the necessity for the
issuance or service of citation upon him‖). We therefore overrule Father’s first
point as moot.2
2
Father also urges this court to hold that Texas Rule of Civil Procedure 121
is unconstitutional as ―a loophole of due process‖ because a piece of paper,
which conveys simple thoughts, cannot replace a physical appearance. We
decline Father’s invitation to hold that such rule is unconstitutional.
4
IV. FATHER’S DUE PROCESS AND EQUAL PROTECTION RIGHTS
WERE NOT VIOLATED
In his third, fourth, fifth, sixth, seventh, and ninth points, Father argues that
his constitutional rights to due process and equal protection were violated. In his
sixth and seventh points, Father also argues that the trial court abused its
discretion by denying his motion for bench warrant and his request for appointed
counsel. We will address each of Father’s arguments below.
A. Denied Request for Appointed Counsel
In his seventh point, Father argues that the trial court abused its discretion
by denying his request for appointed counsel and that his due process and equal
protection rights were violated by the denial of his motion for appointed counsel.
As set forth above, the trial court explained that Father was not entitled to an
appointed attorney. Texas Family Code section 107.021(a) provides only for
discretionary appointments in private termination suits. See Tex. Fam. Code
Ann. § 107.021(a) (West 2008). Because appointed counsel is not mandatory in
a private termination suit, we hold that the trial court did not abuse its discretion
by not appointing counsel for Father. See In re J.C., 250 S.W.3d 486, 489 (Tex.
App.—Fort Worth 2008, pet. denied) (holding that because mother’s parental
rights were terminated pursuant to a private termination suit, she possessed no
mandatory statutory right to appointed counsel), cert. denied sub nom. Rhine v.
Deaton, 130 S. Ct. 1281 (2010). Accordingly, we also hold that Father’s due
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process and equal protection rights were not violated. We overrule Father’s
seventh point.
B. Denied Request for Bench Warrant
In his sixth point, Father argues that the trial court abused its discretion by
denying his motion for bench warrant without a quantifiable reason, that his due
process and equal protection rights were violated by the denial of the bench
warrant, and that his due process rights were violated by the trial judge’s failure
to set up the requested telephone conference.
Texas courts consider several factors when deciding whether to grant a
prisoner=s request for a bench warrant, including (1) the expense and
inconvenience of transporting the inmate to court; (2) whether the inmate
presents a security risk to the court and public; (3) whether the inmate has
substantial claims; (4) whether the proceeding can reasonably be delayed until
the inmate=s release; (5) whether the inmate Acan and will offer admissible,
noncumulative testimony that cannot be effectively presented by deposition,
telephone, or some other means@; (6) whether the inmate=s Apresence is
important in judging his demeanor and credibility@; (7) whether the case will be
tried before a jury or to the court; and (8) the inmate=s probability of success on
the merits. In re Z.L.T., 124 S.W.3d 163, 165–66 (Tex. 2003) (explaining that in
recognizing these factors, Texas courts have followed Stone v. Morris, 546 F.2d
730, 735B36 (7th Cir. 1976)). AIn general, our rules place the burden on litigants
to identify with sufficient specificity the grounds for a ruling they seek. A litigant=s
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status as an inmate does not alter that burden.@ Id. at 166 (citations omitted). An
inmate who claims a constitutional right to access must explain Awhy his
appearance in court [is] necessary to preserve his constitutional right[.]@ Id. The
trial court does not have a duty to independently inquire into Arelevant facts not
provided by the moving party.@ Id. Rather, the inmate who seeks a bench
warrant Amust justify the need for his presence.@ Id.
Here, Father’s motion for bench warrant states that he ―desires to present
testimony in his own behalf, especially concerning his desire to care, love and
provide for his natural child.‖ Because Father’s motion does not recite facts
supporting the Stone factors, we hold that the trial court did not abuse its
discretion by denying his request. See In re C.M.R., No. 02-07-00394-CV, 2008
WL 4963510, at *3 (Tex. App.—Fort Worth Nov. 20, 2008, no pet.) (mem. op.);
see also Ringer v. Kimball, 274 S.W.3d 865, 868 (Tex. App.—Fort Worth 2008,
no pet.) (holding that trial court did not abuse its discretion in implicitly denying
prisoner’s request for a bench warrant because prisoner’s bench warrant motion
contained no information by which trial court could assess the necessity of his
appearance at pretrial hearing).
Moreover, when a trial court denies a request for a bench warrant and
does not allow an inmate to appear in person, it should afford the inmate the
opportunity to proceed by affidavit, deposition, telephone, or other means. In re
D.D.J., 136 S.W.3d 305, 313–14 (Tex. App.—Fort Worth 2004, no pet.). The
record reveals that the trial court offered Father the opportunity to participate via
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telephone but that Father did not notify the trial court of his intention to participate
in the trial by that means. The trial court also allowed Father to submit an
affidavit, and Father participated in the trial via his affidavit, which the trial court
read on the record. Because Father participated in the trial by affidavit, we hold
that Father’s due process and equal protection rights were not violated by the
denial of his motion for bench warrant and that his due process rights were not
violated by the trial judge’s alleged failure to set up the requested telephone
conference, which was Father’s responsibility. We overrule Father’s sixth issue.
C. Social Study Evaluator’s Failure to Personally Interview Father
or to Provide Father With a Copy of the Social Study
In his third point, Father argues that his due process and equal protection
rights were violated by the social study evaluator’s failure to interview each party
to the suit, specifically Father. See Tex. Fam. Code Ann. § 107.0514(a)(1) (West
2008) (requiring social study to include personal interview of each party to the
suit). Father also argues that the trial court ―oversaw this failure and allowed it to
happen.‖ In his fourth point, Father argues that his due process and equal
protection rights were violated by the social study evaluator’s failure to provide
Father with a copy of the social study. See id. § 107.055(b) (West 2008)
(requiring service of social study on attorneys for parties). Father states that he
did not become aware of the social study until after he filed his notice of appeal
and argues that the trial court ―oversaw this failure and allowed it to happen.‖
8
A social study may be ordered in adoption proceedings or proceedings
involving conservatorship of a child or possession of or access to a child. See id.
§ 107.0501(1) (West 2008). A special type of social study, a preadoptive social
study, is required when termination of parental rights is sought and a person
other than the parent may be appointed managing conservator of the child. See
id. § 107.0519(c)(1), (2) (West 2008). By statute, a preadoptive social study
requires an interview only of ―each party . . . who requests termination of the
parent-child relationship or an adoption.‖ Id. § 107.0519(b) (West 2008).
Here, the trial court ordered a preadoptive social study in connection with
D.L.S.’s adoption by her stepfather. The trial court’s order specifically states that
a ―preadopotive social study‖ is ordered. Thus, because Father was not a party
requesting termination or adoption, the statute did not require that he be
interviewed. Id. We overrule Father’s third point.
A preadoptive social study is ordered because a party is seeking to adopt
a child. See id. § 107.0519. An adoption proceeding does not properly
commence until at least one of the biological parent’s rights are terminated. See
In re McAda, 780 S.W.2d 307, 312 (Tex. App.––Amarillo 1989, writ denied).
Thus, the adoption proceeding here did not commence until Father’s rights had
been terminated, and after Father’s parental rights were terminated he
possessed no further justiciable interest in D.L.S. See id. Because Father’s
rights had been terminated, he was not a party to the adoption proceeding and
was therefore not entitled to a copy of the preadoptive social study; the failure to
9
provide him with a copy cannot constitute a denial of due process or equal
protection. See id. We overrule Father’s fourth point.
D. Attorney Ad Litem’s3 Failure to Interview Father and Serve
Documents on Him
In his fifth point, Father argues that the attorney ad litem failed to interview
him and failed to serve documents on him. Father argues that these failures
violated his due process and equal protection rights and resulted in an unfair trial.
Father also argues that the trial court ―oversaw this failure and allowed it to
happen.‖ Father urges this court to discipline the attorney ad litem and Judge
Havercamp.
The record before us contains no written or oral objections or complaints
concerning the attorney ad litem or Judge Havercamp’s rulings with respect to
the attorney ad litem. Because no objections were made, no error is preserved
for review. See Tex. R. App. P. 33.1(a).4 We therefore decline Father’s request
3
The trial court appointed an attorney ad litem to represent D.L.S.’s
interests.
4
Even if Father’s arguments were preserved, the record does not support
them. No evidence exists that the attorney ad litem failed to interview Father. At
the termination trial, the trial court asked the attorney ad litem if he had ample
opportunity to investigate the matter, and he responded, ―Yes, Your Honor.‖ He
also responded that he had received ―quite a bit‖ of correspondence from Father
and that he was ready to proceed. Thus, the record indicates that the attorney
ad litem obtained information from Father via written correspondence. Similarly,
the clerk’s record contains a copy of the attorney ad litem’s original answer; it
contains a certificate of service stating that the answer was served on ―each
attorney of record or party in accordance with the Texas Rules of Civil Procedure
on August 3, 2010.‖ No evidence exists that Father was not sent a copy of the
attorney ad litem’s answer. To the extent that Father argues that the attorney ad
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to discipline the attorney ad litem and Judge Havercamp, and we overrule
Father’s fifth point.
E. Cumulative Effect of Errors Shows Bias
In his ninth point, Father argues that the trial court judge and the 235th
District Court have violated Father’s due process and equal protection rights on
multiple occasions, ―resulting in an extremely biased cause.‖ Father reiterates
his above complaints and also argues that the trial court’s rulings on his motions
and the alleged disappearance from the record of four requests constitutes
―[e]gregious prejudices.‖ We have analyzed each of Father’s due process and
equal protection arguments above and have found no violations.
Moreover, the record does not support Father’s claims for bias or
prejudice. The Texas Supreme Court has stated,
>[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion,= and opinions the judge forms during a trial
do not necessitate recusal >unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.=
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v.
United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). Furthermore,
expressions of impatience, dissatisfaction, annoyance, and even anger do not
establish bias or partiality. Id. at 240. AA judge=s ordinary efforts at courtroom
litem was biased against him, we hold that there is no evidence in the record to
support Father’s bias argument.
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administration—even a stern and short-tempered judge=s ordinary efforts at
courtroom administration—remain immune.@ Id. (quoting Liteky, 510 U.S. at 556,
114 S. Ct. at 1157).
Here, the record does not show bias or support recusal. The record
establishes that Judge Havercamp made every effort to accommodate Father,
who is in prison, by offering to let him participate in the trial by telephone if he
made the arrangements with the prison officials. We hold that Judge Havercamp
did not demonstrate any bias that would support recusal. See Estate of
Connally, No. 02-07-00412-CV, 2008 WL 4531664, at *4 (Tex. App.CFort Worth
Oct. 9, 2008, no pet.) (mem. op.) (holding that, after reviewing the record, judge
did not demonstrate a bias). We overrule Father’s ninth point.
V. RECORD SUPPORTS TERMINATION
In his eighth point, Father argues that the trial court did not by clear and
convincing evidence ―fulfill any of the two-pronged requirements to terminate
parental rights.‖ Specifically, Father argues that the evidence presented in the
reporter’s record is insufficient to support the trial court’s findings under family
code section 161.001(1) and (2) because he did not ―voluntarily‖ leave his child
or fail to support his child, because he did not ―knowingly‖ engage in criminal
conduct, and because the best interest of D.L.S. ―can only be achieved through
the preservation of their natural parent-child relationship.‖
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
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reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that Father
violated subsections (C) and (Q) of section 161.001(1) and that the termination of
the parent-child relationship would be in the best interest of the child. See Tex.
Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light
of the entire record, the disputed evidence that a reasonable factfinder could not
13
have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
Here, the eighteen-page reporter’s record details that Father last saw
D.L.S.––who was almost ten years old at the time of trial––in 2002 or 2003, when
D.L.S. was two or three years old, and that Father had made only one child
support payment. The 104-page clerk’s record contains evidence that in 2007,
Father was convicted of murder and sentenced to life in prison.5 There was no
evidence that D.L.S. had a relationship with Father; instead, the record contained
evidence that D.L.S.’s stepfather acted as D.L.S.’s father.
After reviewing the record under the required standards of review,6 we hold
that the evidence is legally and factually sufficient to support the trial court’s
findings that (1) Father had voluntarily left D.L.S. alone or in possession of
another without providing adequate support of the child and remained away for a
period of at least six months, (2) Father had knowingly engaged in criminal
conduct that resulted in his conviction of an offense and confinement or
imprisonment and inability to care for D.L.S. for not less than two years from the
5
We affirmed Father’s criminal conviction for murder in a prior appeal to
this court. We omit the citation and style of the case to comply with Texas Rule
of Appellate Procedure 9.8(b)(2). See Tex. R. App. P. 9.8(b)(2).
6
Father attempts to offer evidence attached to his brief that is not in the
appellate record. See generally Tex. R. App. P. 34.1 (stating that appellate
record consists of the clerk’s record and, if necessary to the appeal, the
reporter’s record).
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date the petition was filed, and (3) termination of the parent-child relationship
between Father and D.L.S. was in D.L.S.’s best interest. We overrule Father’s
eighth point.
VI. TEXAS FAMILY CODE SECTION 161.001(1)(Q) IS NOT UNCONSTITUTIONAL
In his second point, Father argues that Texas Family Code section
161.001(1)(Q)––authorizing termination of a parent’s rights when a parent
knowingly engages in criminal conduct that results in the parent’s conviction of
an offense and confinement or imprisonment and inability to care for the child for
not less than two years from the date of the filing of the termination petition––is
unconstitutional as violative of article I, section 21 of the Texas constitution. But
Father’s argument appears to challenge the trial court’s ability to order D.L.S.’s
last name to be changed.
Article I, section 21 of the Texas constitution states, ―No conviction shall
work corruption of blood, or forfeiture of estate, and the estates of those who
destroy their own lives shall descend or vest as in case of natural death.‖ Tex.
Const. art. I, § 21. The provision means that a person may not be denied the
right to inherit on the basis of a criminal conviction. Tex. Att’y Gen. Op. No. GA-
0632 (2008). Father does not challenge family code section 162.016, which
deals with adoption orders and allows the name of the child to be changed, nor
does he challenge any of the inheritance statutes found in the Texas Probate
Code. Because section 161.001(1)(Q) is solely a ground for the first prong of
termination, because a best interest finding is also required for a parent’s rights
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to be terminated, and because section 161.001(1)(Q) does not by itself result in a
name change or affect one’s inheritance rights, we decline to hold section
161.001(1)(Q) unconstitutional as violating article I, section 21 of the Texas
constitution.7 We overrule Father’s second point.
VII. CONCLUSION
Having overruled all of Father’s points, we affirm the trial court’s judgment
terminating his parental rights to D.L.S., granting Brian’s adoption of D.L.S., and
granting the name change from D.L.S. to D.L.B.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: July 21, 2011
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Moreover, to the extent that Father argues that subsection Q violates
double jeopardy, the Texas Supreme Court has held that termination of parental
rights under subsection Q does not constitute an additional punishment for prior
criminal conduct because subsection Q focuses on the parent’s future
imprisonment and inability to care for the child, not the criminal conduct
committed by the parent in the past. See In re A.V., 113 S.W.3d 355, 360 (Tex.
2003).
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