Opinion filed October 10, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-19-00131-CV
                                     __________

                IN THE INTEREST OF A.D.M., A CHILD


                     On Appeal from the 318th District Court
                             Midland County, Texas
                        Trial Court Cause No. AD-33,289


                      MEMORAND UM OPI NI ON
      Based upon a petition filed by the mother and stepfather of A.D.M., the trial
court terminated the parental rights of A.D.M.’s father and permitted A.D.M. to be
adopted by her stepfather. The father filed a pro se notice of appeal. In his appellate
brief, the father presents eight points of error. We affirm.
      At the outset, we note that Appellees (A.D.M.’s mother and A.D.M.’s
adoptive father) assert that Appellant’s brief is frivolous. Appellees ask that we
dismiss this appeal as frivolous because Appellant failed to adhere to the briefing
standards required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P.
38.1. Although Appellant’s brief does not meet all of the requirements of Rule 38.1,
we do not believe that his appeal is frivolous. We will address the relevant
deficiencies in Appellant’s brief as we address his points of error. Furthermore, we
will construe the briefing rules liberally. See TEX. R. APP. P. 38.9.
      In his first point of error, Appellant asserts that his criminal history should not
have been taken into consideration, that he was subjected to double jeopardy, and
that misinformation of a constitutional magnitude was considered at trial. We
disagree.
      One of the grounds upon which Appellees sought to terminate Appellant’s
parental rights related to Appellant’s criminal history. Appellees asserted three
grounds upon which Appellant’s parental rights could be terminated; the trial court
found that two of the three asserted grounds supported termination. Specifically, the
trial court found that the father had failed to support the child in accordance with his
ability during a period of one year ending within six months of the date that the
petition was filed and that the father had knowingly engaged in criminal conduct that
resulted in his convictions for the offenses of aggravated assault and manslaughter
and, thus, in his imprisonment and inability to care for the child for not less than two
years from the date that the petition was filed.           See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(F), (Q) (West Supp. 2018). The trial court also found, pursuant to
Section 161.001(b)(2), that termination of Appellant’s parental rights would be in
the best interest of the child. See id. § 161.001(b)(2).
      To support a finding under subsection (Q), the record must show that the
parent will be incarcerated or confined and unable to care for the child for at least
two years from the date the termination petition was filed. Id. § 161.001(b)(1)(Q);
In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006). Thus, it was proper for the trial
court to consider Appellant’s criminal history, including the two judgments that were
admitted into evidence, which reflect that Appellant was convicted of manslaughter
and aggravated assault and was sentenced on October 6, 2016, to a term of
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confinement for five years. Furthermore, nothing in the record indicates that
Appellant was subjected to double jeopardy.
         Appellant also asserts in his first point of error that the hearing procedure
violated his rights and that he was denied a full and fair hearing and cites Zuniga v.
Zuniga, 13 S.W.3d 798 (Tex. App.—San Antonio 1999, no pet.), in support of his
assertion. The Texas Supreme Court, however, has disapproved of the holding in
Zuniga upon which Appellant relies. See In re Z.L.T., 124 S.W.3d 163, 166 (Tex.
2003). Furthermore, Appellant filed an answer below and was duly served with
notice of the final hearing. Appellant, however, did not appear at trial, did not
request to be bench warranted so that he could appear at trial, and did not request to
appear by telephone or any other manner. Nothing in the record reflects that
Appellant was denied a full and fair hearing. We overrule Appellant’s first point of
error.
         In his second point of error, Appellant asserts that the trial court subjected
A.D.M. to coercive questioning when the trial court asked leading questions
regarding whether A.D.M. wanted her last name to be changed. There were no
objections to the questions asked by the trial court. Thus, Appellant’s complaint has
not been preserved for review. See TEX. R. APP. P. 33.1. We overrule Appellant’s
second point of error.
         In his third point of error, Appellant asserts that Appellees failed to produce
any evidence that they were married.            He also expresses concerns about the
“honesty” of A.D.M.’s mother and the lack of evidence of the adoptive father’s
citizenship. First, we note that A.D.M.’s mother testified that she was married to
R.S., the adoptive father. Second, the veracity of A.D.M.’s mother was a question
for the trial court, not this court. The trier of fact is the sole judge of the credibility
of the witnesses at trial, and we are not at liberty to disturb the determinations of the
trier of fact as long as those determinations are not unreasonable. In re J.P.B., 180
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S.W.3d 570, 573 (Tex. 2005). And, finally, Appellant cited no authority in support
of his contention related to the citizenship status of the adoptive father, see TEX. R.
APP. P. 38.1(i), and we have found none. We overrule Appellant’s third point of
error.
         In his fourth point of error, Appellant complains of the use of A.D.M.’s full
name during the final hearing. He also complains, in very general terms, of the
violation of his constitutional rights and, again, cites no authority for his contentions.
See TEX. R. APP. P. 38.1(i). Based upon a motion filed in this court by Appellant, in
which he sought to strike the child’s name from the appellate record, we believe that
Appellant has misconstrued Rule 9.8 of the Texas Rules of Appellate Procedure,
which prohibits the use of a child’s name “in all papers” (except for the docketing
statement) that are submitted to the court in a parental termination appeal. See
TEX. R. APP. P. 9.8(b)(1). Rule 9.8(d) specifically provides that the requirements of
the portion of the rule relied upon by Appellant do not apply to the appellate record:
“Nothing in this rule permits alteration of the original appellate record except as
specifically authorized by court order.” TEX. R. APP. P. 9.8(d). We have found no
authority to support the contentions made by Appellant in his fourth point of error;
accordingly, we overrule his fourth point of error.
         In his fifth point of error, Appellant asserts that the trial court entertained
misleading legal arguments about Appellant voluntarily leaving A.D.M. alone and,
again, raises a double jeopardy complaint. Because the trial court did not enter a
finding that Appellant had voluntarily left the child alone, as alleged by Appellees
in their petition, see FAM. § 161.001(b)(1)(C), Appellant’s fifth point of error, insofar
as it relates to him voluntarily leaving A.D.M. alone, is not dispositive of this appeal.
See TEX. R. APP. P. 47.1. Furthermore, we have already overruled Appellant’s
contention regarding double jeopardy. We overrule Appellant’s fifth point of error.


                                            4
      In his sixth point of error, Appellant argues that he did not voluntarily waive
his right to be present at the hearing. He asserts that, because he was incarcerated,
he could not have appeared at the hearing unless the trial court had issued a bench
warrant.
      While it is true that litigants cannot be denied access to the courts simply
because they are inmates, inmates do not have an absolute right to appear in person
at every court proceeding. Z.L.T., 124 S.W.3d at 165. A court may allow an inmate
to appear by telephone, affidavit, or other effective means. In re Ramirez, 994
S.W.2d 682, 684 (Tex. App.—San Antonio 1998, orig. proceeding). However, a
trial court does not have a duty to independently inquire into the necessity of an
inmate’s appearance. See Z.L.T., 124 S.W.3d at 166. In addition, a party’s due
process rights are safeguarded when he is provided notice and an opportunity to be
heard. Chandler v. Hendrick Mem’l Hosp., Inc., 317 S.W.2d 248, 250–52 (Tex. Civ.
App.—Eastland 1958, writ ref’d n.r.e.). The record reflects that Appellant was duly
notified of the hearing, that he did not request the trial court to issue a bench warrant,
and that he did not notify the trial court that he wished to appear telephonically or
by some other means.        Consequently, the record before us does not support
Appellant’s contention. We overrule Appellant’s sixth point of error.
      In his seventh point of error, Appellant asserts that a fundamental conflict of
interest exists in this case because the court reporter is married to Appellees’
attorney. There is nothing in the record to support Appellant’s contention that a
fundamental conflict of interest exists based upon any relationship that the court
reporter may have with Appellees’ attorney.
      Appellant also asserts in his seventh point that the appellate record “is missing
essential note[s] and notations.” Appellant similarly complains in his eighth point
of error that the reporter’s record “is incomplete” and that Appellant has not been
provided with the trial court’s off-the-record notes. The reporter’s record from the
                                            5
hearing reflects that the trial court twice stated: “Let’s go off the record.” A
discussion off the record then ensued. A third off-the-record discussion took place
during the adoptive father’s testimony about the spelling of his name. There were
no objections to any of the off-the-record discussions. Thus, Appellant has not
preserved for review any complaint regarding those discussions. See TEX. R. APP.
P. 33.1. Additionally, an off-the-record discussion should not appear “in” the record.
And Appellant has cited no authority that would indicate otherwise. See TEX. R.
APP. P. 38.1(i). We overrule Appellant’s seventh and eighth points of error.
        We affirm the order of the trial court.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


October 10, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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