in the Interest of D.C.C, Children ( 2011 )

CONCURRING OPINION
No. 04-11-00294-CV
IN THE INTEREST OF D.C.C., et al., Children
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2010-PA-00389
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Concurring Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: December 7, 2011
I concur with the majority that the trial court acted within its discretion, but I write
separately to reinforce the principle that litigants should not be denied access to the courts simply
because they are incarcerated. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).
Unfortunately, this principle is sometimes disregarded in a trial court’s rush to justice. The
opening sentence of the majority opinion reflects a regrettable result of this disregard: “Because
appellant was incarcerated she did not participate in the termination trial.” Because she was not
present, she was unable to present any evidence to oppose the termination of her parental rights
to her two children.
Appellant was not present at trial because, a few days before trial, she was moved from
the Bexar County jail to another facility without counsel’s knowledge. Counsel claimed that he
was unable to secure her appearance by video as he had planned. Because counsel did not file a
continuance or make any record of the circumstances surrounding his client’s absence or her
need to testify, I concur in the judgment of this court but also note that there is a distinct
difference between a parental termination case and other civil cases that do not have a
Concurring Opinion 04-11-00294-CV
constitutional dimension. It is this constitutional dimension that is a factor that should weigh
heavily when assessing an inmate’s participation in a termination proceeding. Had she been
present at the trial, the mother would have heard the State’s evidence and could have responded
with evidence that her attorney simply could not provide. She would have had the opportunity to
rebut the State’s assertions and could have offered her own testimony regarding her attitudes, her
willingness to comply with court orders, and her love for and commitment to her children. Her
testimony may not have changed the court’s decision, but it would have provided the court with
more complete information and would have given the mother an opportunity to be heard.
In its opinion the majority relies on In re Z.L.T., which held that an inmate seeking to
appear in a proceeding must present factual information to the trial court to assess the necessity
of her appearance. Significantly, In re Z.L.T. involved the denial of a request for a bench
warrant. The request for a bench warrant provides an opportunity for the inmate to educate the
court before trial on the relevant factors that were discussed in In re Z.L.T. However, in this
case, appellant’s attorney claimed he did not know she was going to be unavailable until
immediately before trial; thus there was limited opportunity to obtain or provide evidence of the
factors recited in In re Z.L.T. However, despite the hardship, the mother’s attorney could have
filed a written motion for continuance or at least made a record of the specific reasons justifying
his client’s testimony and appearance. See TEX. R. CIV. P. 251 (permitting a continuance for
“sufficient cause supported by affidavit”); Doyle v. Doyle, 482 S.W.2d 285, 286 (Tex. Civ.
App.—Beaumont 1972, no writ) (sustaining the denial of an absent inmate’s motion for
continuance in a divorce proceeding where counsel showed only that the husband could not
appear because he was an inmate and failed to “show what matters [the inmate] would testify to
if he took the stand as a witness”).
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Concurring Opinion 04-11-00294-CV
Unfortunately, the mother’s attorney failed to request or provide any details to support a
continuance, and the court chose to proceed with trial. However, I suggest that the decision to
proceed with termination without parental participation should not be taken lightly. The minimal
costs to the judicial and correctional systems to delay the trial until the mother could be
present—even if only by remote appearance—seem to be outweighed by the mother’s interest in
personally participating in a trial of such import. Although the trial court acted within its
discretion, I believe the better practice here—even in the face of her attorney’s failure to
adequately present evidence to support his “not ready” announcement—would have been to
postpone the trial until the mother could be present in some manner.
For the reasons given above, I respectfully concur.
Rebecca Simmons, Justice
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