in the Interest of H.D.D.B, a Child ( 2022 )

Opinion issued June 23, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00723-CV
———————————
IN THE INTEREST OF H.D.D.B., A CHILD
On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Case No. 19-DCV-268152
MEMORANDUM OPINION
Appellant J.A.B. (“Father”), pro se and incarcerated, appeals the trial court’s
order terminating his parental rights to his child in a private termination suit brought
by the child’s mother, appellee C.N.B. (“Mother). Father contends the trial court
committed various errors that require reversal of the order terminating his parental
rights. We affirm.
Background
Father and Mother, divorced, are the child’s biological parents. In October
2019, Mother petitioned to terminate Father’s parental rights on several grounds,
alleging that Father:
• knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endangered the child’s physical or
emotional well-being;
• engaged in conduct or knowingly placed the child with persons who
engaged in conduct that endangered the child’s physical or emotional
well-being;
• failed to support the child in accordance with his ability;
• knowingly engaged in criminal conduct that resulted in his
imprisonment and inability to care for the child for not less than the
two years prior; and
• attempted to solicit the murder of Mother.
Mother attached to her petition a copy of a protective order she obtained
against Father in February 2019, designating both Mother and the child as protected
persons. The protective order, which is effective for 99 years, recites the issuing
court’s findings that Mother was the victim of stalking and family violence
committed by Father, that Father was likely to commit additional acts of family
violence in the future, and that the protective order was necessary for Mother’s and
the child’s safety and welfare. Among other things, the protective order prohibits
Father from communicating with Mother or the child except through an attorney or
2
other court-appointed person, going to or near any location where Mother and the
child were known by Father to be, engaging in threatening or harassing conduct,
committing physical violence against Mother or the child, and removing the child
from Mother’s possession.1
Father, who is incarcerated, filed a pro se answer opposing the termination of
his parental rights. He also moved for the appointment of counsel to represent him,
asserting that he was indigent and unable to adequately defend his parental rights
because of his incarceration and inability to access the law library for more than
“2 [hours,] 4 days a week.” When the trial court did not rule on this motion, Father
moved a second time for the same relief. Father asserted in his second motion that
Mother’s allegations were false and that the guarantees in the Sixth and Fourteenth
Amendments to the United States Constitution required the appointment of counsel.
Although both motions asserted Father was indigent, Father did not attach an
affidavit or other proof of indigence to either motion. The trial court signed a written
order denying Father’s request for appointment of counsel.
Father filed additional pretrial motions, including motions for a speedy trial,
for a bench warrant to appear in person at the termination hearing, for funding to
hire a private investigator to locate witnesses and obtain evidence, and for assistance
1
This Court affirmed the protective order in a separate appeal. See Beach v. Beach,
No. 01-19-00123-CV, 2020 WL 1879553, at *6 (Tex. App.—Houston [1st Dist.]
Apr. 16, 2020, pet. dism’d w.o.j.) (mem. op.).
3
subpoenaing witnesses. The record does not contain any oral or written rulings on
these motions.
The trial court appointed an amicus attorney to represent the child’s best
interest and set Mother’s petition to terminate Father’s parental rights for a hearing
on August 17, 2020. But the trial court did not proceed with a hearing on that date.
A docket entry explains:
Hearing on final trial was to be via [Z]oom. However, counsel appeared
and stated that [Father] has contracted the corona and is in isolation.
The [Z]oom setup is in the law library, and as he is in [q]uarantine, he
cannot appear. Counsel will need to reset with proper notice.[2]
2
On March 13, 2020, the Governor of the State of Texas declared a state of disaster
in the State’s 254 counties in response to the imminent threat of the COVID-19
pandemic. The Texas Supreme Court issued several emergency orders on the
conduct of court proceedings during the disaster. The twenty-sixth emergency order
was in effect at the time of the hearing on Mother’s petition to terminate Father’s
parental rights. See Twenty-Sixth Emergency Order Regarding the COVID-19 State
of Disaster, 609 S.W.3d 135 (Tex. 2020). It provided in part:
2. Subject only to constitutional limitations, all courts in Texas may
in any case, civil or criminal—and must to avoid risk to court staff,
parties, attorneys, jurors, and the public—without a participant’s
consent:
...
c. except as this Order provides otherwise, allow or require anyone
involved in any hearing, deposition, or other proceeding of any
kind—including but not limited to a party, attorney, witness, court
reporter, grand juror, or petit juror—to participate remotely, such
as by teleconferencing, videoconferencing, or other means[.]
Id. at 135.
4
The termination hearing was reset for the next month and proceeded via Zoom video
conference on September 23, as permitted by the Texas Supreme Court emergency
orders on the conduct of court proceedings during the COVID-19 pandemic.
During the announcement of the parties, the trial court stated for the record
that Father had notice of the setting and access via a Zoom set up in the prison law
library but was not present. A correctional officer at the facility where Father was
incarcerated testified under oath on cross-examination by Mother’s attorney and the
child’s amicus attorney that Father was aware of the proceeding and refused to
participate despite the correctional staff’s efforts to encourage his attendance. The
correctional officer stated he was unaware of any physical impairment that would
prevent Father from attending the hearing via Zoom and that Father appeared to be
of sound mind and had not been influenced against attending. The trial court ordered
the correctional officer to maintain the Zoom connection in case Father changed his
mind and decided to attend. Father did not make an appearance during the hearing.3
Mother was the only other witness to testify at the termination hearing. She
explained that the child was born during her marriage to Father, and that she divorced
Father on the ground of insupportability and because of Father’s cruel treatment
toward her and his felony conviction. Mother was designated as the child’s sole
3
During the termination hearing, the trial court inquired multiple times whether
Father had any cross-examination or wished to present his own witnesses. There
was no response from Father to any of the trial court’s inquiries.
5
managing conservator, and Father was named a possessory conservator with rights
of supervised visitation. Mother testified that the divorce court found that Father had
a “history or pattern of family violence” and permanently enjoined Father from
causing or threatening physical or bodily harm to Mother, threatening Mother,
communicating with Mother except through an attorney, and coming within 200
yards of Mother’s residence or the child’s school.
Mother’s testimony addressed the pattern of family violence in her
relationship with Father. She stated that in the months before the child was born, at
least seven incidents involving physical violence by Father were reported to the
police. The violence associated with most of these incidents was directed at Mother.
In one incident when Mother was pregnant with the child, Father repeatedly punched
Mother in the face and deflated the tires on Mother’s car to prevent her from fleeing
the family home.
Father physically assaulted Mother again, when the child was three months
old and recovering from a surgical procedure to remove a subarachnoid cyst.4 When
the assault began, Mother was holding and feeding the child. She was able to place
the child in a bassinet before Father grabbed her by the throat, strangled her until she
4
Mother explained that a prenatal ultrasound showed the child had a “significant
subarachnoid cyst that . . . cross[ed] lobes of the brain,” requiring the child to be
delivered by cesarean section and undergo surgery four days after birth. The surgical
procedure was a cerebral penetration in which the child’s doctor “burned holes in
the walls of the cyst to let the fluid drain[.]”
6
“pass[ed] out,” and threatened to kill her if she “ever [tried] to take [the child] away
from him.” A police report for this assault noted a “significant amount” of blood on
Mother’s face and clothing and a “severe laceration” extending from the right corner
of Mother’s mouth to her right nostril, through which Mother’s teeth and gums were
visible when her mouth was closed. This injury required ten stitches to Mother’s
face. Mother attributed Father’s violent conduct to alcohol abuse.
Father pleaded guilty to a family violence charge for this assault and was
sentenced to ten years’ confinement. At the time of the termination hearing, Father
was serving that sentence. During his confinement, Father was indicted for the
offense of solicitation of capital murder based on allegations that he asked another
inmate to kill Mother. Mother testified that officials discovered the solicitation plot
because they were monitoring Father’s correspondence to prevent him from
attempting to contact Mother through other inmates. Father had not been tried or
convicted on this charge at the time of the hearing, but Mother testified that Father,
if convicted, could be sentenced to life in prison. In addition, Mother testified that
Father is a registered sexual offender and has a history of other crimes and
convictions, including a charge of “rape by force” of a minor.
Mother explained that she obtained the 99-year protective order out of fear for
her own and the child’s safety. Despite her efforts to avoid contact with Father and
the court orders prohibiting such contact, Father had tried to contact Mother by mail,
7
by phone, and through other inmates. Because of Father’s “tormenting” conduct,
Mother moved with the child and has tried to keep their new address out of the public
record. Still, Mother anticipated Father would continue to “harass” her.
Because of his incarceration, Father has not seen the child, who was five years
old at the time of the termination hearing, since the child was an infant. According
to Mother, Father had not provided any emotional or financial support for the child
and owed more than $11,000 in unpaid child support. In her view, Father’s
involvement in the child’s life would be detrimental to the child’s well-being, and
termination of Father’s parental rights was in the child’s best interest. Mother
explained that she had done “everything in [her] power” to provide a safe and stable
home for the child and to meet the child’s physical and emotional needs while
parenting on her own. She described the child as happy, smart, and full of energy.
After the hearing, the trial court entered an order terminating Father’s parental
rights on several grounds,5 finding by clear and convincing evidence that Father:
• knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endangered the physical or emotional
well-being of the child;
5
The order terminating Father’s parental rights also included the trial court’s finding
that Father made a general appearance in the suit, was “duly noticed of the
proceedings,” and “had the availability and means to appear but elected not to
participate in the trial.”
8
• engaged in conduct or knowingly placed the child with persons who
engaged in conduct that endangered the physical or emotional
well-being of the child;
• failed to support the child in accordance with his ability during a period
of one year ending within six months of the date of the filing of
Mother’s petition; and
• knowingly engaged in criminal conduct that resulted in his conviction,
imprisonment, and inability to care for the child for not less than two
years from the date the petition was filed.
See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (F), (Q). The trial court also found
that termination of the parent-child relationship was in the child’s best interest.
Father appealed.
Issues on Appeal
As with many pro se briefs, Father’s briefing on appeal fails to “state concisely
all issues or points presented for review.”6 TEX. R. APP. P. 38.1(f). In addition to
deficiencies of form, Father’s briefs do not contain any “clear and concise argument”
to support his contentions or “appropriate citations to authorities and to the record,”
as required by the Rules of Appellate Procedure. See TEX. R. APP. P. 38.1(i);
6
Father filed his opening brief as appellant on November 30, 2020 and a document
captioned as an “amended brief” on May 24, 2021, more than two months after
Mother filed her brief as appellee and only nine days before the submission date for
this appeal. Because this latter brief is responsive to Mother’s briefing, we construe
it as a supplemental or reply brief in lieu of an amended brief. See TEX. R. APP. P.
38.1 (rules for appellant’s brief), 38.9 (briefing rules to be construed liberally); see
also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (appellate
courts liberally construe pro se pleadings and briefs but hold pro se litigants to same
standards as licensed attorneys). Father has also filed various correspondence
containing argument in support of his issues on appeal.
9
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994)
(discussing “long-standing rule” that inadequate briefing results in waiver). Given
the significant deprivation of rights that results from the termination of the
parent-child relationship, however, we construe Father’s briefs liberally to reach his
appellate issues on the merits, where possible. See TEX. R. APP. P. 38.9; Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs are to be construed
reasonably, yet liberally, so that the right to appellate review is not lost by waiver.”);
In re Marriage of Jordan, 264 S.W.3d 850, 852 n.1 (Tex. App.—Waco 2008, no
pet.) (“Because Marguerite is representing herself, we have strived to construe her
appellate pleadings with patience and liberality.”), disapproved on other grounds by,
In re Jordan, 487 S.W.3d 762, 765 n.1 (Tex. App.—Waco 2016, pet. denied); see
also Santosky v. Kramer, 455 U.S. 745, 759 (1982) (acknowledging proceedings to
terminate parental rights involve a “unique kind of deprivation”). Despite our liberal
reading of Father’s briefs, we note that pro se litigants like Father are held to the
same standards as licensed attorneys and must comply with all applicable rules of
procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978); Brown
v. Tex. Emp’t Comm’n, 801 S.W.2d 5, 8 (Tex. App.—Houston [14th Dist.] 1990,
writ denied).
Reading Father’s briefs liberally, we understand Father to complain that the
trial court erred by:
10
1. Terminating Father’s parental rights based on Mother’s testimony
about the violent and harassing nature of her relationship with Father;
2. refusing to appoint counsel to represent Father at the termination
hearing;
3. proceeding with the termination hearing when Father was absent due to
illness; and
4. failing to rule on certain pretrial motions.
In addition, during the pendency of the appeal, Father filed with this Court a
motion requesting a new trial “due to newly discovered evidence,” which we address
separately in this opinion.
Sufficiency of the Evidence
In his first issue, Father contends the trial court erred by terminating his
parental rights based on Mother’s testimony, which Father asserts was riddled with
false allegations against him and rested on exaggerated statements about the extent
of his violent conduct toward Mother and her injuries. We construe this as a
challenge to the legal and factual sufficiency of the evidence that Father engaged in
conduct that endangered the child’s physical or emotional well-being under Section
161.001(b)(1)(E) of the Family Code. See TEX. FAM. CODE § 161.001(b)(1)(E)
(allowing termination of parent-child relationship where clear and convincing
evidence shows parent has “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”); see also Perry, 272 S.W.3d at 587.
11
A. Standard of Review
A parent’s rights to the “companionship, care, custody, and management” of
their children are constitutional interests “far more precious than any property
right.” Santosky, 455 U.S. at 758–59; see In re M.S., 115 S.W.3d 534, 547 (Tex.
2003). A termination decree is final, irrevocable, and permanently divests a parent
of all legal rights, privileges, duties, and powers with respect to the parent-child
relationship, except for the child’s right to inherit. Holick v. Smith, 685 S.W.2d 18,
20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly construe
the involuntary termination statutes in favor of the parent. Id. But “the rights of
natural parents are not absolute,” and “the rights of parenthood are accorded only to
those fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355,
361 (Tex. 2003) (quotation omitted). Recognizing that parents may forfeit their
parental rights by their acts or omissions, the primary focus of any termination suit
is protection of the child’s best interest. Id.For a trial court to terminate a parent-child relationship, the party seeking
termination must prove that (1) the parent’s actions satisfy one predicate ground
listed in Section 161.001(b)(1) of the Texas Family Code and (2) termination is in
the child’s best interest. See TEX. FAM. CODE § 161.001(b). Due to the severity and
permanency of the termination of parental rights, the evidence supporting
termination must meet the threshold of clear and convincing evidence. See id.; In re
12
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means
the measure or degree of 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.” TEX.
FAM. CODE § 101.007. This is an intermediate standard that falls between
“preponderance of the evidence” used in ordinary civil proceedings and “reasonable
doubt” used in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979).
The heightened burden of proof in termination proceedings results in a
heightened standard of review. In re S.R., 452 S.W.3d 351, 358 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). When the legal sufficiency of the evidence
supporting termination is challenged, the reviewing court looks at all the evidence
in the light most favorable to the termination finding to determine whether a
reasonable factfinder could have formed a firm belief or conviction that the finding
was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re J.F.C., 96 S.W.3d at
266. The court must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. In re J.O.A., 283 S.W.3d at 344; In re
J.F.C., 96 S.W.3d at 266. It should disregard all evidence that a reasonable factfinder
could have disbelieved or found to be incredible. In re J.O.A., 283 S.W.3d at 344; In
re J.F.C., 96 S.W.3d at 266. If, after conducting a legal sufficiency review of the
record evidence, the court determines that no reasonable factfinder could have
13
formed a firm belief or conviction that the matter to be proved was true, the court
must conclude that the evidence on that matter is legally insufficient. In re J.O.A.,
283 S.W.3d at 344–45; In re J.F.C., 96 S.W.3d at 266.
Only when the factual sufficiency of the evidence is challenged does the
reviewing court review disputed or conflicting evidence. In re J.O.A., 283 S.W.3d
at 345; In re J.F.C., 96 S.W.3d at 266. “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
266. We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam). The factfinder is the sole arbiter when assessing the credibility
and demeanor of witnesses. Id. at 109. We are not to “second-guess the trial court’s
resolution of a factual dispute by relying on evidence that is either disputed, or that
the court could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003). The court of appeals should “explain in its opinion why it has
concluded that a reasonable factfinder could not have credited disputed evidence in
favor of the finding.” In re J.O.A., 283 S.W.3d at 345 (quotation omitted).
14
B. Endangering Conduct
Although the trial court made four predicate findings under Section
161.001(b)(1) in this case, Father’s brief can be read as reasonably challenging only
one of the predicate findings—the finding that Father “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” (the “Subsection (E) finding”).
See TEX. FAM. CODE § 161.001(b)(1)(E).
Ordinarily, when an appellant whose parental rights have been terminated
challenges less than all the predicate findings on appeal, we may affirm on the
unchallenged ground. See In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (court of
appeals may affirm termination judgment so long as one termination ground finding
and best interest finding are based on sufficient evidence); In re A.V., 113 S.W.3d at
362 (only one predicate finding is necessary to support a judgment of termination
when factfinder also determines termination is in child’s best interest). Given the
potential collateral consequences of a Subsection (E) finding, however, we will
evaluate the legal and factual sufficiency of the evidence to support such a finding
in this case. See TEX. FAM. CODE § 161.001(b)(1)(M) (allowing termination of
parental rights where parent “had his or her parent-child relationship terminated with
respect to another child based on a finding that parent’s conduct was in violation of
Paragraph (D) or (E) or substantially equivalent provisions of the law of another
15
state”); In re N.G., 577 S.W.3d at 237 (“[B]ecause section 161.001(b)(1)(M) alone
provides a sufficient basis to terminate parental rights based on a previous section
161.001(b)(1)(D) or (E) finding, the due process concerns, coupled with the
requirement of a meaningful appeal, mandate that if a court of appeals affirms the
termination on either of these grounds, it must provide the details of its analysis.”).
Within the context of Subsection (E), endangerment encompasses “more than
a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
To “endanger” means to expose a child to loss or injury or to jeopardize a child’s
emotional or physical health. Id.; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
It is not necessary to establish that a parent intended to endanger a child to
support termination under Subsection (E). In re M.C., 917 S.W.2d at 270. Nor is it
necessary to establish that the parent’s conduct was directed at the child or caused
actual harm; rather, it is sufficient if the parent’s conduct endangers the child’s
well-being. See Boyd, 727 S.W.2d at 533; Walker v. Tex. Dep’t of Fam. & Protective
Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Danger to a child’s well-being may be inferred from parental
misconduct. Boyd, 727 S.W.2d at 533; In re K.P., 498 S.W.3d 157, 171 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied). “As a general rule, conduct that
subjects a child to a life of uncertainty and instability endangers the physical and
16
emotional well-being of a child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort
Worth 2004, pet. denied). A parent’s past endangering conduct may support an
inference that the conduct may recur and jeopardize the child’s present or future
physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—
Fort Worth 2001, no pet.); see also In re A.D.M., No. 01-16-00550-CV, 2016 WL
7368075, at *6 (Tex. App.—Houston [1st Dist.] Dec. 20, 2016, pet. denied)
(mem. op.).
Domestic violence may be considered evidence of endangerment. In re S.C.F.,
522 S.W.3d 693, 700 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Violent
conduct by a parent toward the other parent may produce an environment that
endangers the physical or emotional well-being of a child. In re J.T.G., 121 S.W.3d
117, 125 (Tex. App.—Fort Worth 2003, no pet.); In re J.I.T.P., 99 S.W.3d 841, 845
(Tex. App.—Houston [14th Dist.] 2003, no pet.).
The endangerment analysis may also consider a parent’s criminal record.
Boyd, 727 S.W.2d at 533–34 (“[I]mprisonment is certainly a factor to be considered
by the trial court on the issue of endangerment.”). While “mere imprisonment will
not, standing alone, constitute engaging in conduct which endangers the emotional
or physical well-being of a child,” “if the evidence, including imprisonment, shows
a course of conduct which has the effect of endangering the physical or emotional
well-being of the child, a finding [under Subsection] (E) is supportable.” Id.
17
Here, Father endangered the child by physically abusing Mother. Mother
testified that Father committed multiple acts of family violence against her,
including physical assaults during her pregnancy with the child and after the child’s
birth. See In re S.L.W., 529 S.W.3d 601, 610–12 (Tex. App.—Texarkana 2017, pet.
denied) (evidence father assaulted mother during pregnancy and after birth
supported termination of father’s parental rights under Subsection (E)). One instance
of physical abuse began while the child, only three-months old, was in Mother’s
arms. This incident involved strangulation and resulted in a “severe laceration” to
Mother’s face, and it occurred when the child was particularly vulnerable due to
tender age and post-surgical status.
In addition, although Father’s history of violent conduct has been the basis of
more than one court order designed to avoid further harm to or harassment of
Mother, the record indicates that Father has disregarded the terms of those orders by
attempting to contact Mother by various means, including through other inmates.
Mother testified that, despite his imprisonment for the family violence committed
against her and her status as the child’s sole caretaker, Father has continued to
engage in endangering conduct by attempting to solicit her murder at the hands of
another inmate.
Father asserts on appeal that he has evidence Mother’s testimony about his
abusive conduct was fabricated or at least exaggerated, but no such evidence was
18
presented at the termination hearing. We will not second guess the trial court’s
assessment that the evidence actually presented—Mother’s testimony—was
credible. See In re H.R.M., 209 S.W.3d at 109; Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 406–07 (Tex. 1998) (appellate court may not pass upon witness’s
credibility or substitute its judgment for that of factfinder).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction that
Father engaged, or knowingly placed the child with persons who engaged, in conduct
that endangered the child’s physical and emotional well-being. See TEX. FAM. CODE
§ 161.001(b)(1)(E). And viewing the evidence in a neutral light, we conclude that a
reasonable factfinder could have formed a firm belief or conviction that Father
engaged, or knowingly placed the child with persons who engaged, in conduct that
endangered the child’s physical and emotional well-being. See id. We therefore hold
that the evidence is both legally and factually sufficient to support the trial court’s
termination of Father’s parental rights under Subsection (E). See id.
We therefore overrule Father’s first issue.
Appointment of Counsel
In his second issue, Father contends the trial court erred by refusing him court-
appointed counsel. As noted above, Chapter 161 of the Texas Family Code
authorizes the termination of a parent-child relationship through civil actions. See
19
TEX. FAM. CODE § 101.032(a). Such suits may be initiated by private parties,
including the child’s other parent, or by the government itself, often acting through
the Child Protective Services Division of the Texas Department of Family and
Protective Services. See TEX. FAM. CODE §§ 102.003(a)(1) (suits by parent of child),
102.003(a)(5) (suits by government entity). The Family Code imposes different
procedural rules for private and government-initiated actions. Indigent parents are
statutorily entitled to counsel, at public expense, in government-initiated suits. See
id. §§ 107.013(a)(1), 107.015(c). The same is not true in private suits, where the
appointment of counsel may occur in the trial court’s discretion but is not mandatory.
See, e.g., id. §§ 107.001(1), .015(a), (b), .021 (contemplating, in private termination
suit, permissive appointment of attorney ad litem for parent and payment of such
attorney ad litem “by one or more of the parties”); TEX. GOV’T CODE § 24.016 (“A
district judge may appoint counsel to attend to the cause of a party who makes an
affidavit that he is too poor to employ counsel to attend the cause.”); see also In re
E.R.W., 528 S.W.3d 251, 259 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
(explaining permissive appointment “is discretionary and does not create a right
to . . . counsel or assistance of counsel”); In re J.C., 250 S.W.3d 486, 489 (Tex.
App.—Fort Worth 2008, pet. denied) (“Indigent parents in a private termination of
parental rights suit possess no statutory right to appointed counsel while indigent
parents in a CPS-initiated suit do.”); In re T.L.B., No. 07-07-0349-CV, 2008 WL
205245905, at *1 n.3 (Tex. App.—Amarillo Dec. 17, 2008, no pet.) (mem. op.) (noting
although respondent in private termination suit was indigent, he was not entitled to
appointed representation).
Here, however, Father did not argue his entitlement to court-appointed
counsel under any discretionary statutory scheme. Instead, he argued that he was
constitutionally entitled to appointed counsel under the Sixth and Fourteenth
Amendments to the United States Constitution.7 See U.S. CONST. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of
Counsel for his defence.”); U.S. CONST. amend. XIV (“No State shall . . . deprive
any person of life, liberty, or property, without due process of law”).
The Sixth Amendment’s right to counsel is not implicated because it generally
is limited to criminal proceedings, and we have found no authority extending its
guarantee to parental-rights termination cases that are not state-initiated and thus do
not involve a statutory right to appointed counsel. See U.S. CONST. amend. VI; see
also In re M.S., 115 S.W.3d at 544–45 (holding indigent parents in state-initiated
7
Because Father does not rely on any state constitutional provision, our analysis is
limited to federal constitutional provisions. We note, however, that our own review
of the case law did not reveal any Texas case extending a state constitutional
provision to guarantee the right of court-appointed counsel in private litigation
between parents. In addition, in claims of procedural due process, the Texas
Supreme Court has found no meaningful distinction between Texas’s protection of
due course of law and the federal constitution’s guarantee of due process. See Univ.
of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).
21
suits to terminate parental rights may challenge counsel’s performance in
representation by asserting ineffective-assistance claim under Sixth Amendment).
The Fourteenth Amendment’s due process clause, as interpreted by the United
States Supreme Court, does have some relevance in this context. See, e.g., Lassiter
v. Dep’t of Soc. Servs., 452 U.S. 18, 24–25 (1981). While the Supreme Court has
noted the fundamental nature of the interests at stake in state actions to terminate
parental rights, it held in Lassiter that the United States Constitution does not require
the appointment of counsel for parents in every parental-termination proceeding. Id.
at 27, 31. The Lassiter Court noted it was “neither possible nor prudent to attempt
to formulate a precise and detailed set of guidelines to be followed in determining
when the providing of counsel is necessary to meet the applicable due process
requirements.” Id. at 32 (quotation omitted). The Court instead left the decision of
whether due process requires appointment of counsel in a particular case to be
decided by the trial court, subject to appellate review. Id. The Court instructed that
such decisions should be made by considering whether the competing interests set
out in Mathews v. Eldridge, 424 U.S. 319 (1976) (the “Eldridge factors”), weigh in
favor of appointing counsel. Lassiter, 452 U.S. at 27 (parent who appears without
counsel must overcome presumption that appointment of counsel is not required in
civil cases using Eldridge factors, which include: (1) private interests at stake;
22
(2) government’s interest; and (3) risk that the procedures used will lead to
erroneous results).
Consistent with this directive, Texas courts have applied the Eldridge factors
to determine whether due process requires the appointment of counsel for a parent
in private termination suits. See In re J.E.D., No. 11-19-00166-CV, 2019 WL
5617645, at *3 (Tex. App.—Eastland Oct. 24, 2019, no pet.) (mem. op.)
(appointment of counsel may be required by due process in private termination,
“[e]ven though not mandated by statute”); see also In re L.F., No. 02-19-00421-CV,
2020 WL 2201905, at *11–13 (Tex. App.—Fort Worth May 7, 2020, no pet.) (mem.
op.) (trial court’s failure to appoint counsel in private termination was not due
process violation); In re T.L.W., No. 12-10-00401-CV, 2012 WL 1142475, at *1–3
(Tex. App.—Tyler Mar. 30, 2012, no pet.) (mem. op.) (same); In re R.J.C., No.
04-09-001006-CV, 2010 WL 816188, at *4 (Tex. App.—San Antonio Mar. 10,
2010, no pet.) (mem. op.) (same).
We do not reach that analysis here, however, because Father did not establish
indigency before the trial court terminated his parental rights in September 2020.
Although Father alleged he was an “indigent inmate” in two pretrial motions seeking
the appointment of counsel, those motions were not sworn or accompanied by any
affidavit or other evidence of indigence. There was therefore no evidence from
which the trial court could determine Father’s indigence on the motions seeking the
23
pretrial appointment of counsel. Father did not make any sworn statement of
indigence until after the trial court ordered the termination of his parental rights,
when he gave notice of his appeal in October 2020 and applied to proceed without
payment of costs for the appeal. Father’s application to proceed in forma pauperis
stated he had not received money from sources such as employment, pensions, gifts,
inheritance, or friends and family within the last twelve months and had no cash,
money in financial accounts, or property of value. Attached to Father’s application
to proceed in forma pauperis was a summary of the balance in his inmate account,
which never exceeded more than $3.45 between April 2020 and September 2020.
The Texas Supreme Court has addressed whether a parent must file an
affidavit of indigence to trigger the process for the mandatory statutory appointment
of counsel in state-initiated termination proceedings. See In re B.C., 592 S.W.3d 133,
135–37 (Tex. 2019) (construing TEX. FAM. CODE § 107.013). There, the
parent-appellant was unrepresented at the termination hearing, did not appear, and
did not file an affidavit of indigence until after the trial court terminated her parental
rights. Id. at 134–35. Applying the rules of statutory construction, the Court
concluded that “[f]iling an affidavit of indigence is a necessary prerequisite to a
determination that the parent is indigent” and thus entitled to appointed counsel. Id.
at 136. The Court reasoned that although a statutory right to the appointment of
counsel exists for an “indigent parent” in a state-initiated termination proceeding, a
24
“trial court is not authorized to hold a hearing to determine the indigency status [of
a parent] until the parent file[s] an affidavit of indigence with the court.” Id. (internal
quotation omitted); see TEX. FAM. CODE § 107.013(d) (“The court shall require a
parent who claims indigence . . . to file an affidavit of indigence in accordance with
Rule 145(b) of the Texas Rules of Civil Procedure before the court may conduct a
hearing to determine the parent’s indigence under [section 107.013].”). The Court
ultimately affirmed the court of appeals’ judgment reversing the termination order
on an alternative ground, but it acknowledged the court of appeals’ error in imposing
on the trial court a duty to “conduct[ ] further inquiry” as to the parent’s indigence
without the requisite affidavit. Id. at 136–17.
This case is not a precise fit for B.C.’s holding given this is a private
termination and Father contends his right to the appointment of counsel derives from
constitutional rather than statutory sources. But we have found no authority that
leads us to conclude that proof of indigency was not required in this context. That
is, the protections Father seeks to invoke concern due process when litigation to
terminate parental rights is commenced against a parent who is unrepresented
because of indigence. It seems axiomatic that there must be some evidence of the
parent’s indigence to support a conclusion that the trial court erred by refusing such
protections, and that Father’s failure to provide any such evidence is fatal to his
25
contention on appeal. Accordingly, we cannot hold that the trial court erred by
denying Father’s request for the appointment of counsel.
We therefore overrule Father’s second issue.
Inability to Attend Hearing
In his third issue, Father complains that illness prevented him from
participating in the termination hearing and thus he was unable to present any
defense to Mother’s allegations. Father asserts that he was recovering from
COVID-19 at the time of the termination hearing and, as a result, was “in no shape
physically to walk 100 yards to the law library” to attend the hearing via Zoom. We
construe this to be a complaint that the trial court erred by failing to postpone the
termination hearing due to Father’s illness.
The clerk’s record contains a docket entry on August 17, 2020, noting that the
termination hearing scheduled for that date would be reset because Father had
contracted “the corona,” was in isolation, and thus was unable to appear at the Zoom
set up in the prison law library.8 That Father contracted COVID-19 and was in
quarantine for the August 17 setting is undisputed by Mother. However, Mother did
dispute whether Father was still suffering from illness when the hearing was
8
While docket entries may not be used to contradict trial court orders and are
generally not considered to be trial court orders or findings, appellate courts may
consider them in determining what happened in the trial court. See Haut v. Green
Café Mgmt., Inc., 376 S.W.3d 171, 178–79 (Tex. App.—Houston [14th Dist.] 2012,
no pet.).
26
conducted more than one month later, on September 23, through her
cross-examination of the correctional officer. When asked under oath at the
commencement of the September 23 hearing whether he was aware of any physical
impairment to Father’s attendance, the correctional officer answered in the negative.
Although Father asserts the correctional officer was unqualified to give an
opinion on Father’s medical or physical condition,9 the record does not show that
Father moved for a continuance of the termination hearing on this or any other basis,
or otherwise informed the trial court, orally or in writing, of his alleged inability to
attend due to illness, either before or after the termination hearing. That is, there is
no written motion for continuance in the clerk’s record, no oral motion or other
reference to a motion for continuance in the reporter’s record, and no record of an
order ruling on a motion for continuance of the termination hearing. See TEX. R. CIV.
P. 251 (instructing that continuance shall not be granted except for “sufficient cause
supported by affidavit, or consent of parties, or by operation of law”); In re C.F.,
565 S.W.3d 832, 844 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (noting
motions for continuance must be in writing, state specific facts supporting motion,
and be verified or supported by affidavit). These things were required to preserve
error, if any, for appellate review. See TEX. R. APP. P. 33.1(a); First Nat’l Collection
9
Father asserts in his brief that the correctional officers told him they would report
to the trial court only that he refused to attend trial because they were not trained to
determine his medical fitness to appear.
27
Bureau, Inc. v. Walker, 348 S.W.3d 329, 337 (Tex. App.—Dallas 2011, pet. denied)
(“An objection is timely urged when asserted at either the earliest opportunity or
when the error becomes apparent.”); see also In re W.A.B., No. 14-18-00181-CV,
2019 WL 2181205, at *2 (Tex. App.—Houston [14th Dist.] May 21, 2019, no pet.)
(mem. op.) (“When the record does not show that a motion for continuance was filed
and brought to the trial court’s attention before final judgment is rendered, any error
is not preserved.”).
Father is not exempt from compliance with the preservation-of-error
requirements. See In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (“[T]he rules
governing error preservation must be followed in cases involving termination of
parental rights, as in other cases in which a complaint is based on constitutional
error.”); In re B.L.D., 113 S.W.3d 340, 350–51 (Tex. 2003) (fundamental-error
doctrine does not apply to procedural preservation rules, nor does due process
require appellate review of unpreserved complaints in all parental rights termination
cases); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (“[P]ro se
litigants are not exempt from the rules of procedure.”); Mansfield State Bank, 573
S.W.2d at 184–85 (“There cannot be two sets of procedural rules, one for litigants
with counsel and the other for litigants representing themselves.”). In short, because
the record does not show Father moved for a continuance of the termination hearing
28
at any time, in writing or orally, or obtained a ruling on a motion for continuance,
we conclude Father has failed to preserve his third issue for appellate review.
But even if we were to review the unpreserved error, see In re B.L.D., 113
S.W.3d at 352 (recognizing due process may require review of unpreserved error in
some termination cases), our review would be for an abuse of discretion only. See
McAleer v. McAleer, 394 S.W.3d 613, 616–17 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (noting trial court’s “broad discretion to deny or grant a motion for
continuance,” and that appellate court will not reverse trial court’s decision absent
clear abuse of discretion). Although we are troubled that the trial court did not make
further inquiry into the reason for Father’s absence from the termination hearing
beyond the correctional officer’s testimony that he was unaware of any reason Father
could not attend—particularly considering the undisputed fact of Father’s
COVID-19 diagnosis one month before the setting—the abuse-of-discretion
standard does not permit us to substitute our judgment for the trial court’s
judgment.10 See id. at 617 (“The appellate court may not substitute its judgment for
that of the trial court in matters committed to the trial court’s discretion.”).
10
Were this a case in which Father had not actively participated in the pretrial phase
of the termination proceeding, we would be less troubled. Unlike in some cases
where a pro se party fails to appear at trial, Father here filed multiple pretrial
motions, including motions aimed at the defense of his parental rights. Cf. Lassiter
v. Dep’t of Soc. Servs., 425 U.S. 18, 33 (1981) (permitting courts to consider
parent’s demonstration of interest in proceedings in considering due process
29
Moreover, because the matter was not raised in the trial court, no record that
might have supported Father’s claim of illness at the time of the termination hearing
was developed. Thus, Father’s contention that he was too ill to attend the termination
hearing rests only on the unsupported assertions in his appellate briefing, which are
not sufficient to find a clear abuse of discretion. See, e.g., In re Marriage of
Harrison, 557 S.W.3d 99, 118 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
(concluding trial court did not abuse its discretion in denying pro se litigant’s motion
for continuance when record did not contain written, verified motion).
We therefore overrule Father’s third issue.
Refusal to Rule
In his fourth issue, Father contends the trial court abused its discretion by
failing to rule on his pro se motions. Our review of the record indicates that the trial
court did not rule on the following motions filed by Father: (1) motion for speedy
trial; (2) motion for bench warrant; (3) motion for funding to hire a private
investigator; and (4) motion to subpoena witnesses.11 But the record does not show
requirements). In addition, given Father was pro se, his absence meant no one was
present to represent his interests at the hearing.
11
The other motions filed by Father were his two motions requesting the appointment
of counsel, which we addressed above, and a motion to appoint an amicus attorney
for the child. The record contains an order appointing an amicus attorney. Although
it does not state the appointment was on Father’s motion, the relief Father requested
was granted and thus we do not consider this motion in our evaluation of Father’s
contention that the trial court abused its discretion by refusing to rule.
30
that Father urged the trial court to rule on the motions or objected to the trial court’s
failure to rule.
To preserve a complaint on appeal concerning a trial court’s refusal to rule,
the record must show that the party presented the motion to the trial court. See TEX.
R. APP. P. 33.1(a); see also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—
Texarkana 2008, orig. proceeding). The mere fact that a motion was filed with the
court clerk does not constitute proof that the motion was brought to the trial court’s
attention or presented to the trial court with a request for a ruling. See Murphree v.
Cooper, No. 14-11-00416-CV, 2012 WL 2312706, at *1 (Tex. App.—Houston [14th
Dist.] June 19, 2012, no pet.) (mem. op.); In re Smith, 263 S.W.3d 93, 96 (Tex.
App.—Houston [1st Dist.] 2006, orig. proceeding). Further, the record must show
that the party objected to the trial court’s refusal to rule. See TEX. R. APP. P.
33.1(a)(2); see also Martin v. Com. Metals Co., 138 S.W.3d 619, 623 (Tex. App.—
Dallas 2004, no pet.) (holding party waived issues in motions by not obtaining ruling
on motions or objecting to refusal to rule); Law Offices of Lin & Assocs. v. Ho, No.
14-01-01265-CV, 2002 WL 31319191, at *2 (Tex. App.—Houston [14th Dist.] Oct.
17, 2002, pet. denied) (not designated for publication) (“[A]s the record is bare of
any trial court ruling on the motion to reconsider or of Lin bringing such failure to
rule to the trial court’s attention or otherwise object[ing] to the failure to rule, she
has therefore not preserved any error for our review.”).
31
Again, Father’s pro se status does not excuse him from these preservation-of-
error requirements. See Wheeler, 157 S.W.3d at 444; Mansfield State Bank, 573
S.W.2d at 184–85. Because the record does not show that the trial court expressly or
implicitly ruled on the motion for expenses or that Father objected to any refusal to
rule, we conclude that Father has not preserved his fourth issue for appellate review.
We therefore overrule Father’s fourth issue.
Motion for New Trial
On November 8, 2021, after the submission date for this appeal, Father filed
a separate motion with this Court requesting that we order a new trial on the ground
of newly discovered evidence. In the motion, Father asserts that he recently obtained
material evidence from an attorney, T. Stickler, which he previously did not have
access to and thus was unable to present at the termination hearing. This motion,
which was filed in the first instance in this Court more than a year after the trial
court’s final judgment, is not timely and fails to explain the nature or relevance of
the newly discovered evidence. See TEX. R. CIV. P. 329b(a) (stating motion for new
trial must be filed within 30 days after judgment is signed). With limited exceptions
not applicable here, an appellate court may not consider matters outside the appellate
record. See In re M.S., 115 S.W.3d at 536 (“[T]his Court—or any appellate court—
may only consider the record presented to it.”); Soto v. Pantalion, No. 01-20-00321-
CV, 2021 WL 2931363, at *2 (Tex. App.—Houston [1st Dist.] July 13, 2021, no
32
pet.) (mem. op.) (noting evidence that is not in appellate record is not properly before
court); see also TEX. R. APP. P. 34.1 (“The appellate record consists of the clerk’s
record and, if necessary to the appeal, the reporter’s record.”). A motion for new trial
based on newly discovered evidence must first be presented to and ruled on by the
trial court, or else nothing is preserved for our review. See TEX. R. CIV. P. 324(b)(1)
(stating complaint about newly discovered evidence must be raised in motion for
new trial to be preserved for appeal); TEX. R. APP. P. 33.1(a) (“As a prerequisite to
presenting a complaint for appellate review, the record must show that: (1) the
complaint was made to the trial court by a timely request, objection or
motion . . . and (2) the trial court [ ] ruled on the request, objection, or motion, either
expressly or implicitly[.]”); see also Cook v. Monaghan Medical Corp., No. 01-19-
00121-CV, 2020 WL 3422291, at *2 (Tex. App.—Houston [1st Dist.] June 23, 2020,
no pet.) (mem. op.) (describing TEX. R. CIV. P. 324(b) as rule focused on
preservation of error).
We therefore deny Father’s motion for new trial.
33
Conclusion
Having overruled all issues raised under a liberal construction of Father’s
briefing, we affirm the trial court’s order terminating Father’s parental rights to the
child.
Amparo Guerra
Justice
Panel consists of Justices Kelly, Guerra, and Farris.
34