Opinion =
filed July 30,=20
2009
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In The
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Eleventh Court=20
of Appeals
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__________
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No.=20
11-08-00294-CV
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_________
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IN THE INTEREST OF D.H., S.H., & B.H., CHILDREN
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On Appeal from the 326th District Court
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Taylor County, Texas
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Trial Court Cause No. 6471-CX
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M E M O R A N D U M O P I N I O =
N
In this appeal, appellant challenges the =
termination of=20
his parental rights to his minor children, D.H., S.H., and =
B.H. In=20
doing so, he presents four issues that, he asserts, reveal the =
trial court=20
reversibly erred in terminating his parental rights. In =
those=20
issues, he contends that (1) the evidence was legally and =
factually=20
insufficient to support the court=3Ds finding =
that he had=20
knowingly engaged in criminal conduct that resulted in his =
conviction of=20
an offense and confinement or imprisonment and inability to care =
for the=20
children for not less than two years from the date of the filing =
of the=20
petition, (2) the evidence was legally and factually insufficient =
to=20
support the court=3Ds finding =
that the=20
termination of the parent-child relationship between himself and =
the=20
children the subject of this suit would be in the best interest of =
the=20
children, (3) the court abused its discretion in denying his =
application=20
for a bench warrant to allow him to be present in the trial court =
at the=20
time of the hearing on the termination proceeding, and (4) the =
denial of=20
his application for a bench warrant to be present at trial =
constituted a=20
denial of the due process guaranteed him under the United States =
and Texas=20
Constitutions. Disagreeing that reversible error is shown, =
we=20
affirm.
=
In=20
any consideration of the termination of parental rights, the =
reviewing=20
court must bear in mind that the natural right existing between a =
parent=20
and child is of constitutional dimension and the involuntary =
termination=20
of parental rights interferes with a fundamental constitutional=20
right. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. =
1985);=20
In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). =
Consequently,=20
termination proceedings should be strictly construed in favor of=20
preserving the relationship. Holick, 685 S.W.2d at =
20. =20
Parental rights are so important that, for a trial court to =
terminate=20
those rights, there must be clear and convincing evidence that =
establishes=20
one statutory ground for the termination and that the termination =
is in=20
the child=3Ds best=20
interest. Tex. =
Fam. Code=20
Ann. '=20
161.001 (Vernon 2008); Holick, 685 S.W.2d at 20. The =
A[c]lear and =
convincing evidence@ =
requirement is=20
statutorily defined as Athe measure =
or degree=20
of proof that will produce in the mind of the trier of fact a firm =
belief=20
or conviction as to the truth of the allegations sought to be=20
established.@ =
Tex. Fam. Code Ann. =
' 101.007 =
(Vernon=20
2008).
In cases such as this one, in which both the =
legal and=20
factual sufficiency of the evidence must be reviewed, there is a =
fine line=20
in distinguishing between the two questions, but a different =
analysis must=20
be applied in determining each question. In re =
J.F.C., 96=20
S.W.3d 256, 266 (Tex. 2002). In both instances, we ask =
whether the=20
evidence is such that a factfinder could reasonably form a firm =
belief or=20
conviction about the truth of the matter on which the State bears =
the=20
burden of proof. Id. at 265-66. However, as we =
have=20
noted, the body of evidence is approached differently in =
conducting the=20
legal and factual sufficiency reviews.
When reviewing legal sufficiency, we =
traditionally=20
look at the evidence in the light most favorable to the =
finding. In=20
the clear-and-convincing context, this means we must assume that =
the=20
factfinder resolved disputed facts in favor of its finding, if a=20
reasonable factfinder could do so. Id. at =
266. =20
We must disregard all evidence that a reasonable factfinder =
could have=20
disbelieved or found incredible. Id. We may =
not,=20
however, disregard undisputed facts that do not support the =
finding. =20
Id.
When reviewing factual sufficiency, we must give =
Adue=20
consideration@=20
to any evidence the factfinder could reasonably have found to be =
clear and=20
convincing. Id. This means that we must look at the =
disputed=20
evidence and determine if a reasonable factfinder could have =
resolved the=20
evidence in favor of the finding. The evidence is factually=20
insufficient if, in light of the entire record, the disputed =
evidence that=20
a reasonable factfinder could not have credited in favor of =
the=20
finding is so significant that the factfinder could not have =
reasonably=20
formed a firm belief or conviction. Id.
Because of the essential similarity of the =
matters=20
presented by appellant=3Ds first =
two issues,=20
we will consider them together. Appellant=3Ds =
parental rights=20
were terminated under Section 161.001(1)(Q). That =
subsection allows termination of parental rights when clear and =
convincing=20
evidence shows that a parent Aknowingly =
engaged in=20
criminal conduct that has resulted in the parent=3Ds: =
(i)=20
conviction of an offense; and (ii) confinement or imprisonment and =
inability to care for the child for not less than two years from =
the date=20
of filing the petition.@ =20
Section 161.001(1)(Q). Subsection Q is applied=20
prospectively. See In re A.V., 113 S.W.3d 355, 360 =
(Tex.=20
2003). Even so, incarceration for the requisite period by =
itself=20
does not justify termination. In re Caballero, 53 =
S.W.3d 391,=20
398 (Tex. App.CAmarillo =
2001, pet.=20
denied). The evidence must also show the parent=3Ds =
inability to care=20
for the child for the two years. In re B.M.R., 84 =
S.W.3d 814,=20
818 (Tex. App.CHouston =
[1st. Dist]=20
2002, no pet.). A factor to be considered when deciding if =
there is=20
an inability to provide care is the availability of financial and=20
emotional support from the incarcerated parent. Id. =
In support of its petition seeking =
termination, the=20
State presented the testimony of Elizabeth Pallarez, an employee =
of the=20
Department of Family and Protective Services (the =
Department). =20
Pallarez averred that she became the assigned caseworker with the =
children=20
in June 2007. She said that appellant had been incarcerated =
since=20
March 31, 2006, after having been convicted on two counts of=20
robbery. His projected release date would be on March 13,=20
2030. She stated that she had reviewed the prior history of=20
appellant as revealed by the Department=3Ds file; =
and nothing=20
there showed that appellant had been involved with the children, =
had=20
supported them, or had a bond with them. She testified that=20
appellant had neither kept in regular contact with the Department =
nor=20
actively worked the parts of a service plan the Department had =
forwarded=20
to him in prison, a part of which requested him to maintain =
regular=20
contact with the Department.
Pallarez averred that she had been sending =
appellant=20
monthly communications regarding the progress of the children but =
that=20
appellant had never responded to those reports. She also =
noted that,=20
although she believed the children knew who their father was, they =
had=20
never asked for him and, to her knowledge, they had no bond with=20
him. She further reported that they were Adoing very =
good@ in their =
current=20
placement and knew the couple as their family and that the couple =
hoped to=20
adopt the children. She commented that the children came =
into=20
supervision because of Aneglectful=20
supervision, mom was a prostitute, and there [were] drugs in the =
home and=20
domestic violence in the home.@
Under cross-examination, she said that she was =
familiar=20
with the fact that an affidavit filed with the papers in the case =
averred=20
that the children had lived in ten different places in the last =
five years=20
and that appellant was not involved with the children in any of =
those=20
moves. She admitted that appellant=3Ds release =
date was=20
based upon his serving the entire sentence and that there was a=20
possibility he would be paroled although he had been denied parole =
once. She also admitted that she did not know if appellant =
actually=20
knew where the children were during the period of time their =
mother was=20
moving them around. She agreed that appellant had no ability =
to pay=20
any kind of child support because of his incarceration. She =
also did=20
not personally know of any parenting or counseling classes =
available to=20
appellant in prison, although the chaplain at the prison had =
orally told=20
her that appellant would not attend counseling classes.
The witness said that the couple with whom the =
children=20
were placed had advised her that appellant had not contacted the=20
children. She also admitted that, because of his =
incarceration,=20
Ain =
some=20
senses,@ he had=20
been unable to complete the service plan submitted by the =
Department to=20
him and that she did not know if he even knew what his service =
plan=20
was. She also admitted that she did not personally know what =
kind of=20
relationship appellant may have had with the children or his =
ability to=20
support them in earlier years prior to his incarceration.
When questioned by the attorney ad litem, =
Pallarez=20
testified that the children were doing well in school, they were =
healthy=20
and participated in school activities, and they had bonded with =
the couple=20
in whose home they were placed and who hoped to adopt them. =
She also=20
averred that appellant was not making any effort to communicate =
with the=20
children or their placement couple and that there was no =
indication that=20
he had any bond with the children.
Appellant, through his attorney, submitted four =
letters=20
B =
three from him=20
and one from a friend of his. The evidence is undisputed =
that=20
appellant=3Ds=20
scheduled release date was March 13, 2030. In a letter dated =
April=20
13, 2008, appellant admitted that he would not be eligible for =
parole for=20
two more years from that date. He had been denied parole in =
December=20
2007. Assuming that appellant=3Ds =
proffered testimony=20
in his letters concerning the possibility of parole is relevant, =
even if=20
he was successful in obtaining parole the next time he was =
eligible, it=20
would be more than two years from the date of the filing of the =
petition=20
to terminate. Additionally, parole decisions are inherently=20
speculative and even though appellant might have taken positive =
steps to=20
improve his chances of obtaining parole and while all inmates =
doubtless=20
hope such steps may improve their odds for a favorable decision, =
the=20
courts have noted that such matters rest entirely within the =
parole=20
board=3Ds=20
discretion. In re H.R.M., 209 S.W.3d 105, 109 (Tex.=20
2006).
It is undisputed that appellant did not arrange =
for a=20
caregiver for his children before going to prison. In his =
letters,=20
appellant stated that the children=3Ds mother =
was an unfit=20
mother and that he wanted to keep them away from her, but he did =
nothing=20
to protect them while he was still out of prison and, indeed, left =
them in=20
her care when he went to prison. Moreover, although =
appellant stated=20
in his letters that it was because of his incarceration he could =
not=20
support his children or take care of them, the evidence was =
sufficient to=20
justify the trial court in determining that he had neither =
supported the=20
children nor been involved in their lives during the time since =
the=20
Department had become involved in 2001. In sum, the evidence =
is=20
sufficient to justify the trial court in its evident conclusion =
that=20
appellant was unable to care for the children while he was=20
incarcerated.
Having reached that conclusion, it now becomes =
our task to=20
determine if the evidence is sufficient to sustain a conclusion =
that the=20
termination of appellant=3Ds =
parental rights is=20
in the best interest of the children. In making that =
decision, there=20
are numerous factors to be considered. Among others, the =
trier of=20
fact may consider the desires of the children, the present and =
future=20
emotional and physical needs of the children, the present and =
future=20
emotional and physical danger to the children, the parental =
abilities of=20
the persons who may be seeking custody, the programs available to =
assist=20
those seeking custody, and any excuse for the acts or omissions of =
the=20
parents. See Holley v. Adams, 544 S.W.2d 367, 371-72 =
(Tex.=20
1976). All of those factors are directed at the best =
interest of the=20
children, not that of the parent. Dupree v. Tex. =
Dep=3Dt of =
Protective &=20
Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.CDallas =
1995, no=20
writ).
Although appellant does claim a relationship, =
the=20
testimony shows that the children have not bonded with him and, as =
he=20
admits, do not reply to his letters. The evidence shows =
that, for a=20
majority of their lives, the children were allowed to stay with =
their=20
mother, who appellant now admits was not a proper custodian. =
The=20
testimony also shows that the children now are happy and =
well-adjusted,=20
are in a stable environment, and are placed with a relative who =
plans to=20
adopt them. Considered in its entirety, we can only conclude =
that=20
the trial evidence was sufficient to show clearly and convincingly =
that=20
appellant is not able to meet the emotional and physical needs of =
the=20
children and was also sufficient to clearly and convincingly =
support the=20
trial court=3Ds=20
decision to terminate appellant=3Ds =
parental=20
rights. Appellant=3Ds first =
two issues=20
are overruled.
It now becomes our task to consider =
appellant=3Ds third =
and fourth=20
issues. As we noted above, in those issues, he asserts that =
the=20
trial court abused its discretion in denying a bench warrant to =
allow his=20
in-court presence during the trial and that, by denying the bench =
warrant,=20
the trial court denied him the due process to which he was =
entitled under=20
the United States and Texas=20
Constitutions. =20
In the seminal case of In =
re=20
Z.L.T., 124 S.W.3d 163 (Tex. 2003), the court had occasion to=20
explicate the factors to be considered in determining whether a =
trial=20
court reversibly erred in refusing to grant a bench warrant =
to bring=20
a penal inmate to the hearing of a parental termination =
proceeding. =20
In some detail, the high court explained that, although an inmate =
cannot=20
be denied access to the courts simply because he is an inmate, an =
inmate=20
does not have an absolute right to appear in person in every court =
proceeding. Rather, that right to appear must be weighed =
against the=20
protection of our correctional system=3Ds =
integrity. =20
124 S.W.3d at 165. Factors to be weighed in determining =
whether a=20
bench warrant should be issued include the cost and inconvenience =
of=20
transporting the prisoner to the courtroom; the security risk the =
prisoner=20
presents to the court and public; whether the prisoner=3Ds claims =
are=20
substantial; whether the matter=3Ds =
resolution can=20
reasonably be delayed until the prisoner=3Ds =
release; whether=20
the prisoner can and will offer admissible, non-cumulative =
testimony that=20
cannot be effectively presented by deposition, telephone, or some =
other=20
means; whether the prisoner=3Ds =
presence is=20
important in judging his demeanor and credibility; whether the =
trial is to=20
the court or a jury; and the prisoner=3Ds =
probability of=20
succeeding on the merits. Id. at 165-66. The =
trial=20
court=3Ds ruling=20
on the denial of a bench warrant is reviewed under an abuse =
of=20
discretion standard. Id. at 165. =
A trial=20
court abuses its discretion if it acts arbitrarily and =
unreasonably or=20
without reference to guiding principles. Downer v. =
Aquamarine=20
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We =
are also=20
reminded that, when reviewing matters related to the trial =
court=3Ds =
discretion, we may=20
not substitute our judgment for that of the trial court. =
Bowie=20
Mem=3Dl=20
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
The trial court allowed appellant, through his =
attorney,=20
to submit anything he wished the court to consider. He =
submitted=20
four letters B=20
three from him and one from his friend. In his letters, he =
iterated=20
in detail and in a comprehensive manner his contentions and his =
past=20
history as well as the reasons for that history and the matters he =
wished=20
the court to consider in making its decision.
The undisputed evidence showed that =
appellant=3Ds =
presently scheduled=20
release date is March 13, 2030. He admitted in his =
April 13,=20
2008 letter that he did not expect another parole hearing for two =
more=20
years. Although he raised the possibility of parole, the =
granting of=20
such parole is so speculative that the trial court would be =
justified in=20
concluding that appellant=3Ds release =
was not=20
probable in the near future. Additionally, appellant=3Ds letters =
indicated=20
that he had no ability to care for the children while he was =
incarcerated,=20
and he gave no indication that he had made arrangements for anyone =
to care=20
for the children while he was incarcerated. He admitted that =
the=20
present caretakers of the children were good but asserted that =
they should=20
only be given temporary custody. The trial court could =
reasonably=20
assume that appellant=3Ds =
presence at the=20
hearing would only result in testimony similar to that he had =
given in=20
writing. The record shows that appellant was represented by =
counsel=20
at the hearing and that the State=3Ds =
testimony was=20
thoroughly and ably tested by cross-examination and by=20
argument.
The trial court stated on the record its reasons =
for=20
denying the bench warrant. It specifically found that (1) =
the cost=20
and inconvenience to the court would be great, (2) appellant would =
be a=20
security risk, (3) the resolution of the grounds alleged did not =
require=20
appellant=3Ds=20
presence to witness his demeanor or credibility, and (4) the time =
of=20
appellant=3Ds=20
release was not imminent.
Our review of the record shows that the trial =
court did=20
not abuse its discretion in making its ruling and that the =
evidence was=20
both legally and factually sufficient to support the termination =
of=20
appellant=3Ds=20
parental rights. Therefore, appellant=3Ds third =
and fourth=20
issues are overruled.
In sum, there being no reversible error, the =
trial=20
court=3Ds order=20
must be, and is hereby, affirmed.
JOHN T. BOYD
SENIOR JUSTICE
July 30,=20
2009
Panel consists =
of: =20
Wright, C.J.,
McCall, J., and =
Boyd,=20
S.J.
John T. Boyd, Retired Chief Justice, =
Court of=20
Appeals, 7th District of Texas at Amarillo, sitting by=20
=
assignment. |