in the Interest of C. U., a Minor Child

  NUMBER 13-03-566-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN THE INTEREST OF C. U., A MINOR CHILD

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On appeal from the 267th District Court

of De Witt County, Texas.

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MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, the biological father of C.U., a minor child, brings this appeal, pro se, from an order establishing a parent-child relationship. By two issues, appellant contends the court erred in denying his request for a bench warrant and the evidence is insufficient to support the court's determination regarding conservatorship and possession of or access to the minor child. Because all issues of law presented by this case are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

I. Background

         Appellant filed suit to determine the parentage of C.U. The Attorney General intervened to establish paternity of C.U. and set child support. In its final judgment, the court found appellant to be C.U.'s father and ordered him to pay child support. It appointed C.U.'s mother managing conservator and appellant possessory conservator of the child. The court also ordered that appellant would have no possession of and access to the child except insofar as appellee, the child's mother, agreed in advance.   

II. Bench Warrant

         By his first issue, appellant contends the trial court erred in failing to grant a bench warrant so that he could attend the hearing. Although a litigant may not be denied access to the courts simply because the litigant is incarcerated, prisoners have no absolute right to appear personally at civil proceedings. In the Interest of Z.L.T., J.K.H.T. and Z.N.T., 124 S.W.3d 163, 165 (Tex. Crim. App. 2003); Pedraza v. Crossroads Security Sys., 960 S.W.2d 339, 342 (Tex. App.–Corpus Christi 1997, no pet.) (citing Nance v. Nance, 904 S.W.2d 890, 893 (Tex. App.–Corpus Christi 1995, no writ)). In balancing the interest of the State in preserving the integrity of the correctional system with the inmate's interest in access to the courts, the court may consider the following: (1) the cost and convenience of transporting the prisoner to the courtroom; (2) the security risk presented by the prisoner; (3) whether the prisoner's claims are substantial; (4) the need for witnessing the prisoner's demeanor; (5) whether the trial is before the jury or the court; (6) whether the prisoner can and will offer admissible, non-cumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; (7) the prisoner's probability of success on the merits; and (8) the possibility of delaying trial until the inmate is released. Id. at 165-66. Additional factors include whether an inmate is represented by counsel and whether an inmate is a civil defendant rather than a plaintiff. In re I.V., 61 S.W.3d 789, 796 (Tex. App.–Corpus Christi 2001, no pet.). This Court reviews the trial court's determination under an abuse-of-discretion standard. See In the Interest of Z.L.T., 124 S.W.3d at 166.

         In general, "our rules place the burden on litigants to identify with sufficient specificity the grounds for a ruling they seek." Id. (citing Tex. R. Civ. P. 21; Tex. R. App. P. 33.1(a)(1)(A)). "A litigant’s status as an inmate does not alter that burden." Id. "[S]ince a prisoner has no absolute right to be present in a civil action, it follows that the prisoner requesting a bench [w]arrant must justify the need for his presence." Id. (citing Pedraza, 960 S.W.2d at 342). The court has no duty to go beyond the bench warrant request and independently inquire into the necessity of an inmate’s appearance, regardless of the content of the request. See id.

         After being informed that his case was to be dismissed, appellant filed a motion to retain the case for trial wherein he requested to appear personally, and in the alternative, to proceed by affidavits, depositions, telephone or other effective means. Appellant proposed the following reason for this request: "because [appellant] has had and witinessed [sic] this procedure invoked by the prison system and is now standard procedure . . . ." Appellant also filed two motions requesting a bench warrant or, in the alternative, for a hearing by conference call or the presentation of affidavit testimony.  The motions, however, did not include information by which the court could assess the necessity of appellant's appearance. Although appellant asked the court to take into consideration various cases and guidelines, he failed to provide any factual information showing why his interest in appearing outweighed the impact on the correctional system.

         Appellant bore the burden to establish his right to relief. See id. Appellant did not meet this burden. Therefore, the court did not abuse its discretion by overruling his request for a bench warrant. See id. We overrule appellant's first issue.  

III. Parent/Child Relationship

         We construe appellant's second issue as a challenge to the legal and factual sufficiency of the evidence to support the court's determination regarding conservatorship and possession of and access to his minor child.

A. Standard of Review

         "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002 (Vernon 2002); see Hopkins v. Hopkins, 853 S.W.2d 134, 136 (Tex. App.–Corpus Christi 1993, no writ). The reviewing court gives wide latitude to a trial judge's decision regarding what serves the best interest of the child, specifically, the establishment of the terms and conditions of conservatorship, and will reverse the lower court's order only if it appears from the record as a whole that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.–Dallas 2004, no pet.) (citing In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000)); Ngo v. Ngo, 133 S.W.3d 688, 690-91 (Tex. App.–Corpus Christi 2003, no pet.); Hopkins, 853 S.W.2d at 136.

         A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Hopkins, 853 S.W.2d at 136. Under an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds for asserting error, but are relevant factors in determining whether the trial court abused its discretion. Niskar, 136 S.W.3d at 753; see Handley v. Handley, 122 S.W.3d 904, 907 (Tex. App.–Corpus Christi 2003, no pet.) (sufficiency of evidence was relevant factor in division of property in divorce action). In the absence of a clear abuse of discretion, we should not substitute our judgment for that of the trial court. In the Interest of Ferguson, 927 S.W.2d 766, 769 (Tex. App.–Texarkana 1996, no writ).

         Moreover, "[w]hen a party does not request findings of fact, we infer that a trial court made all the necessary findings to support its judgment." Niskar, 136 S.W.3d at 753 (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989)). The record is reviewed to determine whether some evidence supports the judgment and the implied findings of fact. Worford, 801 S.W.2d at 109. When making that determination, we consider only the evidence most favorable to the trial court's judgment and disregard entirely that which is opposed or contradictory to it. Id. "The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence." Id.; see Niskar, 136 S.W.3d at 754.

B. Analysis

         "Since the best interest of the child controls questions of conservatorship, the family code grants the trial court broad discretion in defining the rights, duties, privileges, and responsibilities of a parent it appoints a possessory conservator." Hopkins, 853 S.W.2d at 137. The trial court "may grant, deny, restrict or limit the possessory conservator's possession of or access to the child, and may grant, deny, restrict or limit any rights, privileges, duties and responsibilities with respect to the child as are necessary to protect the child's best interest." Id. "The trial court may, for example, appoint the parent a possessory conservator and deny that parent any access to or possession of the child, if it finds that such limitations are in the best interest of the child." Id. at 137-38.

         Moreover, section 153.192(b) of the family code provides guidelines for the trial court to follow when determining periods of possession for a possessory conservator. See Tex. Fam. Code Ann. § 153.192(b) (Vernon 2002). There is a rebuttable presumption that the standard possession order: (1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and (2) is in the best interest of the child. Niskar, 136 S.W.3d at 756 (citing Tex. Fam. Code Ann. § 153.252 (Vernon 2002)). The family code also allows a trial court to deviate from the standard possession order. Id. "When deviating from the standard possession order, a trial court may consider: (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named possessory conservator; and (3) any other relevant factor." Id. (citing Tex. Fam. Code Ann. § 153.256 (Vernon 2002)).

         In this case, the trial court's judgment appointed appellant possessory conservator and ordered that appellant "shall have no possession or access to the child unless mutually agreed to in advance" by appellant and the child's mother. The evidence shows that appellant was in prison at the time of the hearing, and had been in and out of prison for fifteen years for various violations including "[stealing a] pickup, breaking and entering, [and] violations of parole." The trial court noted that "somewhere in the papers . . . [appellant] mentioned . . . the possibility of being released after thirty months." Although appellant asserted in his statement concerning alternative dispute resolution that he was only aware of rumors that he had a child, the child's mother testified that she told appellant he was the father of the child when she was pregnant. At the time of the hearing, the child was fifteen years old. The child's mother also testified that neither she nor the child had lived with appellant during the last four years. Appellant was in prison during that time. The child had never visited appellant; the child and appellant "never really had a relationship of any kind." The child's mother further testified that the child wished to keep his last name which was his mother's maiden name. She stated that the child did not want to change his name to appellant's last name because he did not know appellant and he had gone by his mother's maiden name for fifteen years. Testimony further established that appellant had not supported his child financially for at least the last four years.

         In open court, the trial court explained that it limited appellant's conservatorship on the basis that appellant had been incarcerated "basically this child's entire life and that there's not been really a real relationship developed between them." The court further limited appellant's visitation rights to "whatever either the two of you can agree on, or if you [, the child's mother,] choose to take this child to visit [appellant] while he's locked up you may do that." The court's statements indicate it took into account the needs and best interest of the child, the circumstances of the conservators, and other relevant factors. See Tex. Fam. Code Ann. § 153.256 (Vernon 2002).

         Considering only the evidence most favorable to the trial court's judgment and disregarding entirely evidence, if any, that is opposed or contradictory to it, see Worford, 801 S.W.2d at 109, we conclude that the trial court did not abuse its discretion by appointing appellant possessory conservator of the child. Furthermore, we conclude the trial court did not abuse its discretion when it restricted appellant's access to and possession of the child to opportunities mutually agreed upon in advance by appellant and the child's mother. Appellant's second issue is overruled.

         Nonetheless, we note that by restricting appellant's visitation with and possession of the child, the trial court has not denied appellant his rights as a parent. Should circumstances change, a parent whose rights have been restricted may file a motion to modify the trial court's order. See Niskar, 136 S.W.3d at 756. The Texas Family Code provides for modification of an order as to conservatorship, support, or possession of and access to a child if the modification would be in the best interest of the child and the circumstances of the child or a conservator, among others, has materially and substantially changed. Id. (citing Tex. Fam. Code Ann. § 156.001(1) (Vernon 2002)).

IV. Conclusion

         Accordingly, we affirm the judgment of the trial court.                                                                                           

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Memorandum Opinion delivered and

filed this 30th day of August, 2004.