in the Interest of T.H., a Child ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00300-CV
___________________________
IN THE INTEREST OF T.H., A CHILD
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CV18-1783
Before Kerr, Gabriel, and Birdwell, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
R.H. (Father)—who is incarcerated and proceeding pro se—appeals from the
trial court’s June 2019 “Order Establishing the Parent–Child Relationship” between
him and his son T.P.H. (Timothy). 1 In what we construe as three issues, Father asserts
that the trial court erred by denying his requests for a court-appointed attorney, a
bench warrant, and a jury trial. We will affirm.
Background
In December 2018, the State, represented by the Office of the Attorney
General, filed a petition to establish the parent–child relationship. At the time,
Timothy lived with D.D. (Grandmother). The State asked the trial court to adjudicate
Timothy’s parentage, to appoint “appropriate conservators” for Timothy because
Father and E.D. (Mother) were separated, and to order current and retroactive child,
medical, and dental support.
In his answer, Father asked the trial court to appoint him counsel. Father also
moved for a bench warrant. In February 2019, the trial court held a hearing at which
Grandmother appeared but Mother and Father did not and signed an “Order
Establishing the Parent–Child Relationship.” Father appealed that order but his
appeal was dismissed after the trial court granted a new trial. See In re T.H., No. 01-19-
1
To protect the child’s privacy, we identify the parties by fictitious names. See
Tex. Fam. Code Ann. § 109.002(d); see also Tex. R. App. P. 9.9(a)(3).
2
00271-CV, 2019 WL 2220118, at *1 (Tex. App.—Houston [1st Dist.] May 23, 2019,
no pet.) (per curiam) (mem. op.).
Father renewed his requests for a court-appointed attorney and for a bench
warrant. He also requested a jury trial.
In June 2019, the trial court held another hearing. Father appeared and
participated telephonically, and Grandmother appeared in person; Mother did not
appear. Following the hearing, the trial court signed an order finding that Father was
Timothy’s father; appointing Grandmother, Father, and Mother as Timothy’s joint
managing conservators; and designating Grandmother as the conservator with the
exclusive right to determine Timothy’s primary residence. No current or retroactive
child, dental, and medical support was ordered. In its order, the trial court denied
Father’s bench-warrant motion and his request for a court-appointed attorney. Father
has appealed. 2
2
Although Father did not request the reporter’s record, the court reporter
notified us that there was no reporter’s record of the June 2019 hearing. See Tex. R.
App. P. 34.6(b) (requiring appellant to request the reporter’s record). But the trial
court’s order—which was signed by a visiting associate judge—states that “a record of
the proceeding was . . . made by audio recording.” See Tex. Fam. Code Ann.
§§ 201.009(c), .102, .113. When proceedings are electronically recorded, the reporter’s
record “consists of certified copies of all tapes or other audio-storage devices on
which the proceedings were recorded, any of the exhibits that the parties to the appeal
designate, and certified copies of the logs prepared by the court recorder under Rule
13.2.” Tex. R. App. P. 34.6(a)(2). Because of the conflict between the trial court’s
order and the court reporter’s statements to us, our clerks contacted the court
reporter for clarification. According to the court reporter, the associate judge
confirmed that no recording of the hearing was made. Father has raised no complaint
3
Analysis
We construe briefs liberally. See Tex. R. App. P. 38.9. But a pro se litigant is
held to the same standards as a licensed attorney and must comply with applicable
laws and procedural rules. Flores v. Office Depot, Inc., No. 02-10-00311-CV,
2011 WL 2611140, at *2 (Tex. App.—Fort Worth June 30, 2011, no pet.) (mem. op.).
Father’s three appellate complaints, as we understand them, are that the trial court
erred by (1) denying his request for a court-appointed attorney, (2) denying his bench-
warrant motion, and (3) denying his jury-trial request.
We begin with Father’s first complaint. We review a trial court’s failure to
appoint trial counsel in a civil case for an abuse of discretion. 3 See Gibson v. Tolbert,
102 S.W.3d 710, 712–13 (Tex. 2003); see also Tex. Gov’t Code Ann. § 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 to the cause.”). “A civil
litigant has no general constitutional right to appointed counsel.” 4 Taylor v. Taylor,
regarding the lack of a recording or that the recording has been lost or destroyed. See
Tex. R. App. P. 34.6(f).
3
A trial court abuses its discretion if it acts without reference to any guiding
rules or principles—that is, if it acts arbitrarily or unreasonably. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004).
4
Cases involving juvenile delinquency, termination of parental rights, and court-
ordered mental-health services are exceptions to this general rule. See Tex. Fam. Code
Ann. §§ 51.10, 107.013; Tex. Health & Safety Code Ann. § 574.003. None of the
exceptions apply here.
4
No. 2-09-035-CV, 2009 WL 4913867, at *2 (Tex. App.—Fort Worth Dec. 17, 2009,
pet. denied) (per curiam) (mem. op.). “[I]n some exceptional cases, the public and
private interests at stake are such that the administration of justice may best be served
by appointing a lawyer to represent an indigent civil litigant.” Travelers Indem. Co. of
Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). Whether exceptional circumstances
warranting the appointment of counsel exist is determined on a case-by-case basis. See
Gibson, 102 S.W.3d at 713.
Father argues that the trial court should have appointed him counsel because
he lacks education, has “no legal or law experience,” and “the court al[l]owed the
Office of the Attorney General and a pack of attorneys to represent the P[e]titioner.”
These reasons, however, are insufficient to show that this case presents exceptional
circumstances requiring the appointment of counsel. See id. (explaining that
exceptional circumstances are “by definition rare and unusual”). And Father does not
direct us to any evidence of exceptional circumstances that would have justified
appointing counsel at trial. We thus conclude that the trial court did not abuse its
discretion by failing to make such an appointment. See Taylor, 2009 WL 4913867, at
*2 (reasoning that without proof of exceptional circumstances, the trial court did not
abuse its discretion by refusing to appoint counsel in a civil proceeding). We overrule
Father’s first issue.
In his second complaint, Father argues that the trial court erred by denying his
motion requesting a bench warrant. We review a trial court’s refusal to grant an
5
inmate’s bench-warrant request for an abuse of discretion. See In re Z.L.T., 124 S.W.3d
163, 165 (Tex. 2003). Although an inmate cannot be denied access to the court simply
because he is an inmate, he does not have an absolute right to appear in person in
every court proceeding. Id.
The Texas Supreme Court has identified “a variety of factors that trial courts
should consider when deciding whether to grant an inmate’s request for a bench
warrant,” including (1) the cost and inconvenience of transporting the inmate to the
court; (2) the security risk the inmate presents to the court and the public; (3) whether
the inmate’s claims are substantial; (4) whether the matter’s resolution can reasonably
be delayed until the inmate is released; (5) whether the inmate can and will offer
admissible, noncumulative testimony that cannot be offered effectively by deposition,
telephone, or otherwise; (6) whether the inmate’s presence is important in judging his
demeanor and creditability; (7) whether the trial is to the court or to a jury; and (8) the
inmate’s probability of success on the merits. Id. at 165–66. But it is not the trial
court’s responsibility to independently inquire into the applicability of these factors.
Id. at 166. It is the inmate’s burden to establish his right to relief, and “if the inmate
fails to present sufficient information to the trial court for the trial court to evaluate
the bench[-]warrant request under the factors listed above, the trial court does not
abuse its discretion in denying the request.” Ringer v. Kimball, 274 S.W.3d 865,
868 (Tex. App.—Fort Worth 2008, no pet.) (citing Z.L.T., 124 S.W.3d at 166).
6
Taken together, Father’s bench-warrant requests state—without elaboration—
that he is incarcerated in the Eastland County Jail,5 that the case’s merits could not be
determined without his presence, and that there was no other effective means for him
to testify.6 This information is insufficient for the trial court to evaluate the above
factors. Because Father failed to prove his entitlement to a bench warrant, we cannot
say the trial court abused its discretion, especially when the trial court allowed Father
to appear and to participate in the hearing telephonically. See In re R.C.R., 230 S.W.3d
423, 426 (Tex. App.—Fort Worth 2007, no pet.) (stating that “if a court determines
that a pro se inmate in a civil action is not entitled to leave prison to appear personally
in court, the inmate should be allowed to proceed by affidavit, deposition, telephone,
or other means”). We thus overrule his second issue.
Finally, Father seems to imply that the trial court erred by denying his jury-trial
request. While “[w]e are mindful of the difficulties that pro se litigants face,” we
5
Father was transferred among county jails in Eastland, Hood, and Parker
counties during the course of this case. In his last bench-warrant motion, he stated
that he was in the Eastland County Jail.
6
On appeal, Father complains that a bench warrant was necessary so that he
“could bring documentation and prove that my child has[] been put into danger” and
that there “was no way possible to show proof and documentation by attending court
on a phone call.” Because Father did not raise these complaints in his bench-warrant
requests filed in the trial court, he has not preserved them for our review. See Tex. R.
App. P. 33.1(a)(1)(A); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g);
see also In re J.C., 594 S.W.3d 466, 473 (Tex. App.—Fort Worth 2019, no pet.) (“[T]he
complaint a party raises on appeal must match the complaint the party presented to
the trial court.” (citing Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997))).
7
cannot make Father’s arguments for him. Thiessen v. Fid. Bank, No. 02-17-00321-CV,
2018 WL 5993316, at * 3 (Tex. App.—Fort Worth Nov. 15, 2018, pet. denied) (mem.
op.); see Baish v. Allen, No. 02-17-00146-CV, 2019 WL 1284900, at *1 (Tex. App.—
Fort Worth Mar. 21, 2019 no pet.) (mem. op.) (“Identifying and determining the
number of issues [appellant] is presenting puts us in the precarious position of
possibly over-advocating or under-advocating on his behalf when, as a neutral
adjudicator, we should not be advocating for any party at all.”); Yeldell v. Denton Cent.
Appraisal Dist., No. 2-07-313-CV, 2008 WL 4053014, at *2 (Tex. App.—Fort Worth
Aug. 29, 2008, pet. denied) (mem. op.) (noting that the appellant’s brief was “so
inadequate that we would have to make her legal arguments for her” and that pro se
litigants are held to the same standards as licensed attorneys). To the extent Father has
raised this issue, he offers no argument or authorities supporting it. See Tex. R. App.
P. 38.1(i). He has thus waived his complaint, if any, regarding the lack of a jury trial.
See Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855, 873 (Tex. App.—
Fort Worth 2011, no pet.) (“An inadequately briefed issue may be waived on
appeal.”). We thus overrule this issue as inadequately briefed. See id.
Conclusion
Having overruled Father’s three issues, we affirm the trial court’s order.
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Per Curiam
Delivered: October 1, 2020
9