Opinion
No. 08-22-00164-CV
01-05-2023
In the INTEREST OF: J. A. R., D. R., J. R., J. N. R., K. L. R, and A. M. G., Children.
ATTORNEY FOR APPELLANT: Celia Villasenor, 1113 E. Yandell Drive, El Paso, TX 79902, Alison Gutierrez, Briggs & Associates, PC, 3609 Montana Ave, El Paso, TX 79903. ATTORNEY FOR APPELLEE: Leslie Capace, Office of General Counsel, Texas Department of Family and Protective Services, P.O. Box 149030; Agency Mail Code: E611, Austin, TX 78714-9030.
ATTORNEY FOR APPELLANT: Celia Villasenor, 1113 E. Yandell Drive, El Paso, TX 79902, Alison Gutierrez, Briggs & Associates, PC, 3609 Montana Ave, El Paso, TX 79903.
ATTORNEY FOR APPELLEE: Leslie Capace, Office of General Counsel, Texas Department of Family and Protective Services, P.O. Box 149030; Agency Mail Code: E611, Austin, TX 78714-9030.
Before Rodriguez, C.J., Palafox, and Soto, JJ.
OPINION
GINA M. PALAFOX, Justice
Appellants M.G. (Mother) and J.R. (Father) challenge the trial court's final judgment terminating their parental rights as to their five children, J.A.R., D.R., J.R., J.N.R., and K.L.R. Mother's parental rights to her sixth child, A.M.G., were also terminated by the judgment. , We affirm.
In accordance with the appellate rules of procedure, we refer to the parties by aliases to protect the identity of the minor children. See Tex. R. App. P. 9.8(a), (b)(2).
The judgment terminated J.R.’s parental rights as to children J.A.R., D.R., J.R., J.N.R., and K.L.R. The underlying judgment also terminated the parental rights of A.M.G.’s father, who is someone other than J.R. and did not otherwise join in this appeal.
I. MOTHER'S APPEAL
A. Counsel's Ander ’s brief
Appellant M.G. is represented on appeal by court-appointed counsel who has filed a brief in accordance with the requirements of Anders v. California , 386 U.S. 738, 741-44, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After a thorough review of the record, M.G.’s counsel has concluded that M.G.’s appeal is frivolous and without merit. Counsel certified to this Court that she has provided M.G. with a copy of the Anders brief filed on her behalf along with a copy of counsel's motion to withdraw. Counsel also advised M.G. of her right to examine the appellate record and file a pro se brief. To date, M.G. has not filed a pro se brief.
In Anders , the U.S. Supreme Court recognized that counsel, who had been appointed to represent the appellant in an appeal from a criminal conviction, had no duty to pursue a frivolous matter on appeal. Anders , 386 U.S. at 744, 87 S.Ct. 1396. Thus, counsel was permitted to withdraw after informing the court of his conclusion and the efforts made in arriving at that conclusion. Id. As relevant to this cause, the Supreme Court of Texas has determined the procedures set forth in Anders apply to an appeal from a case involving the termination of parental rights when court-appointed counsel has determined an appeal is frivolous. See In re P.M. , 520 S.W.3d 24, 27 n.10 (Tex. 2016) (per curiam) ; In re J.B. , 296 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.).
Counsel's brief meets the requirements of Anders by containing a professional evaluation of the record and further demonstrating that there are no arguable grounds for reversal of the termination order. Upon receiving an Anders brief, we are required to conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio , 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have thoroughly reviewed the entire record, including the Anders brief, and found nothing that would arguably support an appeal. We have specifically reviewed the trial court's findings as to M.G. under Texas Family Code § 161.001(b)(1), subsections (D) and (E), and we found no non-frivolous issues that could be raised on appeal with respect to those findings. See In re N.G. , 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) ; see also TEX. FAMILY CODE ANN. § 161.001(b)(1). We agree with counsel's professional assessment that the appeal is frivolous and without merit. Accordingly, we affirm the trial court's order terminating Appellant Mother's parental rights.
B. Counsel's motion to withdraw
M.G.’s counsel has filed a motion to withdraw, citing as grounds for withdrawal her filing of an Anders brief. However, when an Anders brief is filed in a parental termination appeal, the appellant's right to appointed counsel extends to "all proceedings in the [Texas Supreme Court], including the filing of a petition for review." In re P.M. , 520 S.W.3d at 27 (citing TEX. FAM. CODE ANN. § 107.013(a)(1) ). Accordingly, counsel's obligations to M.G. have not yet been discharged. See id. In the event M.G. advises appointed counsel that she wishes to challenge our decision by filing a petition for review, "counsel's obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief." Id. at 27-28. Accordingly, M.G.’s counsel's motion to withdraw is denied.
II. FATHER'S APPEAL
In a single issue, Appellant J.R. challenges the trial court's denial of his motion for continuance made at the start of the final termination hearing, contending the denial violated his constitutional right to due process. We conclude that J.R. failed to preserve error, and, even had he done so, the record does not demonstrate the trial court abused its discretion in denying the motion for continuance.
A. Factual background
The Texas Department of Family and Protective Services (DFPS) sought to terminate both J.R.’s and M.G.’s parental rights to all five of their children, along with termination of the parental rights of A.M.G., a sixth child of M.G. who has a different father who himself is not a party of this appeal.
When the cause was called for trial on June 27, 2022, via Zoom, J.R.’s attorney announced, "not ready," stating it had exceeded more than six months since he last had contact with J.R., and he had reason to believe he was in Mexico. The trial court denied counsel's request for a continuance. As the hearing proceeded, however, the trial judge noted on the record that J.R. and M.G. were then recognized as being in attendance via Zoom. J.R.’s counsel advised the trial judge that J.R. wished to testify, but the hearing was adjourned before he was called to the stand. The trial court continued the trial for another day and verified J.R. would be present at the next hearing.
M.G.’s attorney also announced, "not ready," describing he had asked Mother to appear in his office to access a computer for the hearing, but she had not so appeared. The trial court similarly denied his request for a continuance. As the hearing progressed, the trial court noted on the record that M.G. and J.R. had by then appeared in person at the courthouse. Both M.G. and J.R. joined the hearing via Zoom.
The hearing resumed on August 2, 2022, at which point J.R.’s counsel again announced, "not ready," making an oral request for a continuance, explaining J.R. was detained at the jail annex and counsel had incorrectly anticipated he would be released in time for the hearing. The trial court replied, "Your request is denied." Counsel did not further respond, and the hearing proceeded.
The record evidence and testimony presented at trial reflects threats of family violence committed by J.R. against M.G., illicit drug use by M.G., physical neglect of the children, and unsafe conditions in the home. DFPS caseworkers and an investigator testified the children had been removed from the home in June 2021 due to physical neglect—food lay rotting in the kitchen, there were maggots inside the home, the trailer floor had various perforations, with no working utilities, and the indoor temperature was above 100 degrees. DPFS introduced into evidence judgments of conviction against J.R. for felony family violence offenses, the most recent being for continuous violence against the family and assault family violence by impeding breath or circulation, for which J.R. was placed on probation for a period of eight years in March 2021.
Further, the trial testimony showed that despite DFPS reviewing his court-ordered service plan with him, and further providing him with referral information and bus tokens to assist him in complying with the plan, J.R. failed to enroll in or complete any of the required services. For instance, though DFPS twice helped enroll him for "BIPP" classes to address anger management, he was discharged for non-attendance. DFPS acknowledged J.R. may have had some contact with the children placed with relatives during family functions that may have been held during the pendency of the case, but he did not attend any DFPS scheduled visits with the children. And other than the lone drug test to which he was transported by a caseworker, he did not submit to any other required drug testing.
Prior to the conclusion of trial, J.R.’s counsel indicated he had wanted to call J.R. to testify about how his methamphetamine consumption had affected him, but J.R. had failed to attend the hearing. Before closing the hearing, the trial court asked for a recommendation from the court appointed special advocate (CASA). She recommended termination of parental rights. The trial judge later noted, "I just don't know that hearing the parents is going to change the facts of this case." Subsequently, the trial court rendered its termination order, and this appeal followed.
B. Discussion
In his sole issue, J.R. challenges the trial court's denial of his August 2, 2022, oral motion for continuance, asserting the denial violated his constitutional right to due process. DFPS counters that J.R. failed to preserve this issue for review; and even if he had done so, because J.R. failed to meet his burden of both requesting access to the court through alternate means and in setting forth a factual basis justifying his presence at the hearing, he cannot now demonstrate that the trial court abused its discretion in denying his oral motion for continuance. We agree.
1. Error preservation
Our review of the record shows that J.R.’s counsel made no objection to the trial court's ruling on his motion for continuance, either in general or specifically on constitutional due-process grounds. J.R.’s counsel provided no response to the trial court's ruling, let alone asserted any of the arguments he now advances on appeal. We agree with DFPS that even constitutional claims must be preserved by objection in the trial court, and as such, we conclude J.R. failed to preserve his appellate claim. See In re L.M.I. , 119 S.W.3d 707, 708 (Tex. 2003) (In a termination case, noting "adhering to our preservation rules isn't a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose."); Tex. Dep't of Protective & Regulatory Servs. v. Sherry , 46 S.W.3d 857, 861 (Tex. 2001) (holding appellant failed to preserve constitutional claim where it was not raised in the trial court); In re T.H. , No. 02-07-00464-CV, 2008 WL 4831374, at *8 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (holding J.R. failed to preserve constitutional claim challenging denial of motion for continuance where appellant failed to object to the continuation of the trial on constitutional grounds).
2. Standard of review and applicable law
Even if J.R. had preserved error, the record does not bear out his claim that the trial court erred in denying J.R.’s request for a continuance.
We review a trial court's denial of a motion for continuance for an abuse of discretion. J.G. v. Texas Department of Family and Protective Services , 592 S.W.3d 515, 521 (Tex. App.—Austin 2019, no pet.) (citing BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 800 (Tex. 2002) ). To the extent the trial court's ruling also denied an implied request for a bench warrant or appearance by alternate means, we likewise review the ruling for an abuse of discretion and reverse only where the record demonstrates action by the trial court without reference to any guiding rules and principles. See id. at 520-21 (citing See In re Z.L.T. , 124 S.W.3d 163, 164 (Tex. 2003) ; Bennett v. Grant , 525 S.W.3d 642, 653 (Tex. 2017) ); Larson v. Giesenschlag , 368 S.W.3d 792, 796 (Tex. App.—Austin 2012, no pet.).
Trial courts may not grant a continuance "except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." TEX. R. CIV. P. 251. When, as here, a movant fails to comply with the affidavit requirement, reviewing courts generally presume the trial court did not abuse its discretion by denying the motion. See Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986) ; Zeifman v. Nowlin , 322 S.W.3d 804, 812 (Tex. App.—Austin 2010, no pet.).
With this presumption in mind, we note that "[a]ll litigants forced to settle disputes through the judicial process have a constitutional right to be heard at a meaningful time in a meaningful manner." In re L.N.C. , 573 S.W.3d 309, 324 (Tex. App.—Houston [14th Dist.] 2019, no pet.). However, though inmates cannot be denied access to the courts simply by virtue of their status as inmates, they do not have an absolute constitutional right to appear in person in every court proceeding. In re Z.L.T. , 124 S.W.3d at 165. Instead, courts must weigh the inmate's right of access against protection of the integrity of the justice system. Id.
In balancing these interests, a trial court considers a variety of factors, to include: (1) the cost and inconvenience of transporting the prisoner to the courtroom; (2) the security risk the prisoner presents to the court and public; (3) whether the prisoner's claims are substantial; (4) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; (5) whether the prisoner's presence is important in judging his demeanor and credibility; (6) whether the trial is to the court or a jury; and (7) the prisoner's probability of success on the merits. Id. The movant, regardless of his status as an inmate, bears the sole burden of providing the trial court with factual information pertinent to the issue of whether his interest in appearing outweighs the impact on the justice system. Id. at 165-66. Importantly, the trial court has no independent duty to inquire into relevant facts not provided by the moving party. Id. at 166.
When a trial court concludes an inmate is not entitled to appear in person, the court must consider allowing the inmate to participate " ‘by some other effective means,’ such as by affidavit, deposition, or telephone." Samaniego v. Office of the Attorney Gen. of Tex. , No. 03-13-00014-CV, 2015 WL 1545933, at *2 (Tex. App.—Austin Apr. 3, 2015, no pet.) (mem. op.) (quoting Larson , 368 S.W.3d at 798 ). But again, the sole burden to "request access to the court through these alternate means and to demonstrate why a trial court should authorize them" rests on the inmate. J.G. , 592 S.W.3d at 522 (quoting Brown v. Preston , No. 01-16-00556-CV, 2017 WL 4171896, at *3 (Tex. App.—Houston [1st Dist.] Sept. 21, 2017, no pet.) (mem. op.) (citation omitted)).
3. Analysis
Turning now to the propriety of the trial court's ruling, we begin with the well-settled principle that a trial court has no independent duty to go beyond the movant's request and inquire into the necessity of an inmate's appearance. See, e.g., In re Z.L.T. , 124 S.W.3d at 166 ; J.G. , 592 S.W.3d at 522. Thus, before a litigant may prevail on a claim that he was improperly denied the opportunity to appear via alternate means, he must first both make a request to appear via alternate means and provide the trial court with factual information enabling it to properly weigh the movant's need to appear against the impact on the justice system under the Z.L.T. factors. See J.G. , 592 S.W.3d at 522 ; Brown , 2017 WL 4171896 at *3 ; see also See In re Z.L.T. , 124 S.W.3d at 165-66. Here, J.R. did neither.
Consequently, even if error was preserved, we conclude on this record the trial court did not abuse its discretion in denying J.R.’s oral request for a continuance. See In re Z.L.T. , 124 S.W.3d at 166 (in suit to establish parent-child relationship, reversing intermediate court of appeals and holding that because a prisoner has no absolute right to be present in a civil action, trial court did not abuse its discretion in denying request for bench warrant to secure appellant's presence where he failed to make record justifying his presence under applicable factors); J.G. , 592 S.W.3d at 522 (overruling claim that J.R. was entitled to continuance by law where he failed to make request to appear through alternate means and provide factual information demonstrating why his personal appearance via alternate means was necessary); In re R.R.C. , 04-17-0043-CV, 2017 WL 2562377, at *3-4 (Tex. App.—San Antonio June 14. 2017, no pet.) (finding no abuse of discretion in denial of continuance where J.R. failed to make written motion supported by affidavit showing materiality of his testimony and failed to make record justifying his appearance under the Z.L.T. factors).
We overrule J.R.’s sole issue on appeal.
III. CONCLUSION
The judgment of the trial court is affirmed in all respects.