in the Interest of N.J.N., a Child

NO. 07-09-0216-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 28, 2009

______________________________

In the Interest of N.J.N., A Child

_________________________________

FROM THE 64 th DISTRICT COURT OF HALE COUNTY;

NO. A35860-0801-A; HON. ED SELF, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Ignacio Navarro appeals from a final judgment terminating his parental rights to his daughter and claims the evidence is legally insufficient to support the decision.  We affirm the order.

The State argues that we should not review appellant’s issues because he failed to file a statement of the points he intended to raise on appeal as required by §263.405 of the Family Code.  According to subsection (i) of that section, an appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points on which the party intends to appeal or in a statement combined with a motion for new trial.   Tex. Fam. Code Ann. §263.405(i) (Vernon 2008).  The record contains no statement of points either in its own document or one combined in a motion for new trial.  Neither has appellant presented a claim of ineffective assistance of counsel or raised any constitutional issues regarding the application of §263.405(i).  Thus, neither of those matters are before us despite the absence of a statement of points.   See In the Interest of J.O.A., 283 S.W.3d 336, 339 (Tex. 2009) ; In the Interest of Z.J.C., No. 10-09-0026-CV, 2009 Tex. App. Lexis 5628 at *2 (Tex. App.–Waco July 22, 2009, no pet.).  Therefore, appellant has presented nothing for our review.

Accordingly, the order of termination is affirmed.

Brian Quinn

         Chief Justice.  So too was he ordered not to have possession of or access to the children at any time.

On January 25, 2002, Huseman, who was representing himself, filed a motion to modify in which he requested limited access to his children through the mail and access to information regarding their health, welfare, and education.  Rudina (now Rudina Paetzold) filed an answer and also a motion to transfer the matter to Randall County; the proceeding was pending at the time in Hale County.  The trial court granted the motion to transfer on April 26, 2002.  Thereafter, Rudina’s new husband, Kennith Paetzold (Kennith),  intervened seeking to be appointed a joint managing conservator.  

Trial on the motion to modify was convened on December 3, 2002.  Several days before then, however, Huseman had filed his “Second Motion for Bench Warrant” requesting that he be allowed to attend the proceeding.  The trial court denied the request on November 27, 2003, and the hearing proceeded without him.   

Issue One - Attendance at Hearing

In his first and fourth issues, Huseman complains about the denial of his request to personally attend or otherwise participate in the trial.  He believed that this violated his constitutional rights.  We overrule the issue.  

We initially address the allegation about being denied opportunity to participate at trial by means other than personal appearance.  According to the record before us, Huseman merely sought opportunity to personally attend the hearing.  He did not request the chance to participate through alternate means, such as affidavit, deposition, telephone or the like.  Again, he simply wanted to attend in person.  Having failed to request the chance to participate through alternate means, he cannot now complain on appeal about being denied such relief.   Commerical Credit Equipment Corp. v. West, 677 S.W.2d 669, 673 (Tex. App.—Amarillo 1984, writ ref’d. n.r.e.)  This is especially so given that the trial court’s order did not foreclose pursuit of those substitute measures.  

As to the trial court’s denial of the bench warrant, we review that decision under the standard of abused discretion.   Armstrong v. Randle , 881 S.W.2d 53, 56-57 (Tex. App.—Texarkana 1994, writ denied); see In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003) (applying the standard of abused discretion).   Thus, we must determine whether the decision comported with controlling guidelines and principles.   Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied , 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).  One such principle holds that while a prisoner cannot be denied access to the courts simply because he is an inmate, an inmate has no absolute right to appear in person at every proceeding.   In re Z.L.T. , 124 S.W.3d at 165.   Rather, he has the burden to establish his right to that relief; that is, he must present the trial court with “factual information” illustrating why his presence is necessary and warranted.   Id. at 166.  And, the factual information should address such indicia as 1) the cost and inconvenience of transportation, 2) the security risk involved, 3) whether the prisoner’s claims are substantial, 4) whether the matter can be delayed until his release, 5) whether the inmate will offer admissible, non-cumulative testimony that cannot be effectively presented by some other manner such as telephone, deposition or the like, 6) whether his presence is important to judge his credibility and demeanor, 7) whether the trial is to a jury or the court, and 8) the probability of his ultimate success on the merits.   Id. at 165-66.   The trial court has no independent duty to sua sponte search for information touching upon those subjects; again, the inmate has the obligation to provide it with the requisite data.   Id.  

In the case before us, we note that Huseman said nothing of the Z.L.T. factors in his “Second Motion for Bench Warrant,” that is, the one upon which the trial court acted. Nor were they mentioned in the request for a bench warrant preceding that denied by the trial court.  

And, while he alluded to them in a request that he tendered to the Hale County district court before the cause was transferred to Randall County, we do not find the allusion enough to evince an abuse of discretion on the part of the court, assuming of course, that the Randall County district court was made aware of the filing. ^{(footnote: 1)}  This is so because his argument consisted of little more than unsworn commentary and conclusions .  For instance, while he mentioned that he would “call witnesses and offer admissable [sic] testimony,” he failed to describe what that testimony would be, why it was probative, and why it could not be provided through alternate means.  Furthermore, when speaking about the probability of his ultimate success, he said nothing more than 1) “[r]espondent’s accusations and allegations are so unfounded and Huseman has requested such basic access to his children that Huseman fully believes he will succed [sic] . . .,” 2) his ex-wife previously succeeded in having the conservatorship modified because of “an ex parte hearing held without Huseman’s knowledge,” and 3) his attorney did not appear on Huseman’s behalf. ^{(footnote: 2)}  The actual merits of his claim go unaddressed.  Nor did he provide the trial court with factual information touching upon his term of imprisonment and whether the proceeding could have been reasonably delayed until his release; instead he simply says that “any postponement . . . would serve no purpose other than to drive a wedge between Huseman and his children.” ^{(footnote: 3)}  These and the other unsupported conclusions mentioned in the request filed with the Hale County district court did not satisfy his duty to provide “factual information” to the Randall County district court .  Consequently, we hold that the trial court did not abuse its discretion in denying Huseman’s second motion for a bench warrant.

Issues Two and Three - Post Trial Motions

In his second and third issues, Huseman complained of the trial court’s failure to rule on his post trial motions.  We overrule them as well.

After issuance of the court’s order, Huseman filed a motion for rehearing, motion for clarifying order, and a request for findings of fact and conclusions of law.  Because the trial court did not act upon them, Huseman asserts that it erred, and he was harmed.  Yet, the motions for rehearing and to clarify were nothing more than an attempt to obtain a new trial and seek a modification of the judgment, respectively.  As such, they were overruled by operation of law within 75 days after the judgment was signed.   See Tex. R. Civ. P. 329b(c) (stating that a motion for new trial or to correct or modify a judgment are overruled by operation of law if not determined by written order within 75 days after the judgment was signed).  In short, the trial court was not obligated to formally act upon them.  

As for the request for findings of fact and conclusions of law, the record does not show that Huseman ever filed a notice of past due findings of fact and conclusions of law. Same was required to perfect his complaint about their absence.   Las Vegas Pecan & Cattle Co., Inc. v. Zavala County 682 S.W.2d 254, 255-56 (Tex. 1984); In re Guthrie, 45 S.W.3d 719, 722 (Tex. App.—Dallas 2001, pet. denied); Curtis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.Houston [14 th Dist.] 2000, no pet.).  Consequently, he waived this aspect of his issue.   Id.

Having overruled each issue, we affirm the “order in suit to modify parent-child relationship and order on petition in intervention for conservatorship.”

Brian Quinn

   Justice

FOOTNOTES

1:

2:

3: