E. G. v. Tex. Dep't of Family & Protective Servs.

E. G., Appellant v. Texas Department of Family and Protective Services, Appellee

No. 03-22-00469-CV

Court of Appeals of Texas, Third District, Austin

December 28, 2022

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 320,567-B, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Smith

MEMORANDUM OPINION

Gisela D. Triana, Justice

Following a bench trial, the district court terminated the parental rights of E.G. (Father) to his child A.G. (Daughter), born August 23, 2019.^[1] In three issues on appeal, Father asserts that (1) the district court abused its discretion by beginning the trial in Father's absence and that the evidence is legally and factually insufficient to support the district court's findings that (2) the statutory grounds for terminating Father's parental rights were satisfied and that (3) termination of Father's parental rights was in Daughter's best interest. We will affirm the district court's termination decree.

BACKGROUND

The case began in October 2020, when the Texas Department of Family and Protective Services (the Department) received a referral alleging neglectful supervision of Daughter by her mother, A.B. (Mother). In the Department's removal affidavit, Department investigator Courtney Nabors averred that Daughter had tested positive for methamphetamines after Mother took Daughter to the emergency room "for an altered state" in which Daughter "was awake and staring into blank space but was not active." Mother initially denied any past or present drug use but eventually admitted that she had a two-to-three-year history of using methamphetamines and living with friends who used methamphetamines, including while Daughter was in her care. Following further investigation, which revealed that Mother had two other children removed from her care due to substance abuse, the Department sought and obtained emergency removal of Daughter from Mother.

Father was incarcerated in Bell County Jail at the time of Daughter's removal, awaiting trial on multiple criminal charges.^[2] During the Department's investigation Nabors interviewed Father at the jail. According to Nabors's notes from the investigation, a copy of which was admitted into evidence,

[Father] stated [Mother] has always had a problem with using methamphetamines, especially with the individuals she surrounds herself with. [Father] admitted just recently [Mother] has begun drinking heavily along with her substance abuse and he has continued to ask [Mother] to leave the area [where she lives] for [Daughter] and her safety. [Father] stated he has been in [Daughter's] life since she was born until he became incarcerated. [Father] further explained he has always worked to provide for [Daughter] and as long as he was present [Mother] was doing well, because he paid all of the bills. . . . [Father] stated he and [Mother] were together a little over two years after [Mother] got pregnant, because he decided to stay. [Father] stated he is willing to do whatever the Department needs when he is released to get [Daughter] back.

The case proceeded to a two-day bench trial on April 11 and May 18, 2022. Approximately one week before trial began Father's counsel applied for a bench warrant to secure Father's presence at trial, and the district court ordered that a bench warrant be issued, finding "that there is a necessity for the presence of" Father at trial and that "the ends of justice require his presence." However, Father was not brought to trial on April 11 as ordered.^[3] At the beginning of trial, Father's counsel announced "not ready" and requested a continuance so that Father "may attend this trial." The Department initially opposed the continuance, noting that the dismissal date for the case was April 23, but later stated that if Father's counsel "would like a continuance to get her client here, we're unopposed if we are able to start and call Ms. [Cathy] Rothas," the guardian ad litem for the child. The Department explained that Rothas "will not be able to be a witness at a later date" because "she won't be with the Department" later and "she's going to be undergoing a medical procedure and will be medically unable to testify in the future starting Wednesday," April 13. The district court told counsel that it agreed that Father "has a constitutional right to be present on something as important as this" but faulted counsel for not requesting a bench warrant "earlier than she did." After asking counsel that she request a bench warrant "at least a month in advance" next time, the district court ruled:

I'm granting your motion for continuance under these circumstances, because we do have a dismissal date probable and we have witnesses that are here that have limited schedule. And we have attorneys from out of town that are here so we're going to start the trial. And we are going to begin it and allow at least Ms. Rothas to testify. That's the best I can offer you. And that's the best I'm going to do. That's my Ruling. So we're going to proceed at this point in time.

Rothas was the only witness to testify on April 11.

On May 18, 2022, the trial continued. This time, Father's counsel filed her application for a bench warrant on April 20, the district court issued a bench warrant for Father's appearance on April 21, and Father appeared at trial and testified. Other witnesses at trial on May 18 were the Department caseworker, Marlena Roberts; Father's two brothers and sister-in-law, who expressed their willingness to serve as placements for Daughter; and Daughter's foster mother, A.S. (Foster Mother).

At the conclusion of trial, the district court found by clear and convincing evidence that Mother had: (1) knowingly placed and knowingly allowed Daughter to remain in conditions and surroundings which endangered her physical and emotional well-being; (2) engaged in conduct and knowingly placed Daughter with persons who engaged in conduct which endangered her physical and emotional well-being; (3) constructively abandoned the child; and (4) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child. See Tex. Fam. Code § 161.001(b)(1)(D) (E), (N), (O). Regarding Father, the district court found by clear and convincing evidence that he had: (1) knowingly placed or knowingly allowed Daughter to remain in conditions and surroundings which endangered her physical and emotional well-being; and (2) engaged in conduct or knowingly placed Daughter with persons who engaged in conduct which endangered her physical and emotional well-being. See id. § 161.001(b)(1)(D), (E). The district court also found by clear and convincing evidence that termination of Mother's and Father's parental rights was in the best interest of Daughter. See id. § 161.001(b)(2). The district court later signed a termination decree terminating Mother's and Father's parental rights to Daughter and appointing the foster parents as possessory conservators of Daughter.^[4] This appeal by Father followed.^[5]

ANALYSIS

Bench Warrant

In Father's first issue, he argues that the district court abused its discretion by beginning the trial in Father's absence. According to Father, starting the trial without him violated his constitutional right to due process.

All litigants who are forced to settle disputes through the judicial process have a fundamental right under the federal constitution to be heard at a meaningful time and in a meaningful manner. Larson v. Giesenschlag, 368 S.W.3d 792, 796-97 (Tex. App.-Austin 2012, no pet.) (citing Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.-Houston [1st Dist.] 2000, no pet.), disapproved of on other grounds, In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003)). Litigants may not be denied reasonable access to the courts simply because they are inmates. Id at 797 (citing In re Z.L.T., 124 S.W.3d at 166; Boulden v. Boulden, 133 S.W.3d 884, 886 (Tex App.-Dallas 2004, no pet.)). However, this does not mean that an inmate has an absolute right to personally appear in every proceeding. Id. "The right of a prisoner to have access to the court entails not so much his personal presence as the opportunity to present evidence or contradict the evidence of the opposing party." Dodd, 17 S.W.3d at 717. Therefore, "if a pro se inmate is not allowed to participate in a proceeding in person, a trial court should nevertheless afford the inmate an opportunity to proceed by affidavit, deposition, telephone, or other effective means." Larson, 368 S.W.3d at 797 (citing In re R.C.R., 230 S.W.3d 423, 427 (Tex. App.-Fort Worth 2007, no pet.); Sweed v. City of El Paso, 139 S.W.3d 450, 452 (Tex. App.-El Paso 2004, no pet.); Boulden, 133 S.W.3d at 886)); see also In re M.A.R., No. 03-10-00444-CV, 2012 WL 593569, *4 (Tex. App.-Austin Feb. 23, 2012, pet. denied) (mem. op.). We review a trial court's decision on an inmate's request to participate, either personally or by alternative means, for an abuse of discretion. Id. at 796.

Here, in granting Father's request for a bench warrant, the district court expressly found "that there is a necessity for the presence of" Father at trial and that "the ends of justice require his presence." Nevertheless, the district court allowed Cathy Rothas, Daughter's guardian ad litem, to testify at trial in Father's absence.

The Department argues that this was not an abuse of discretion because on April 11, 2022, the date that Rothas testified the statutory dismissal deadline was approaching. See Tex. Fam. Code § 263.401(a) (providing for automatic dismissal of case unless "the court has commenced the trial on the merits or granted an extension" prior to dismissal deadline).^[6]However, to comply with the...