      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00004-CV



                                       M. G. P., Appellant

                                                 v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-FM-11-006814, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant M.G.P. appeals from the trial court’s decree terminating his parental rights

to his three children, who were aged seven, five, and four at the time of termination. He complains

that his due process rights were violated when the trial court refused to grant his motion to extend

the case and instead proceeded to trial. We affirm the trial court’s termination decree.

               The factual and procedural background of the cause are well-known to the parties,

and we therefore will not recite them in great detail in this opinion. See Tex. R. App. P. 47.1

(appellate court opinions should be as “brief as practicable” in addressing issues necessary to final

disposition), 47.4 (memorandum opinions should be “no longer than necessary to advise the parties

of the court’s decision and the basic reasons for it”). On October 26, 2009, M.G.P. was convicted

in a federal court of drug possession and possession with intent to distribute and was sentenced

to seventy-seven months in federal prison, which would result in a release date in early 2016. On
December 12, 2011, the Texas Department of Family and Protective Services filed a petition seeking

conservatorship of the three children, who were in the care of M.R., their mother and M.G.P.’s wife,

due to allegations that the children were being neglected; that M.R. and another person living in the

house were regularly using cocaine and crack cocaine while the children were in the house and

sometimes present; that the youngest child was seen outside while M.R. slept following drug use;

and that the house was dirty and unsafe.

               M.G.P. wrote a letter to the trial court in February 2012, explaining that he was

incarcerated in South Carolina with a projected release date of March 15, 2013. An attorney was

appointed for M.G.P., and trial was set for November 5, 2012. On October 26 and November 5,

M.G.P. filed motions seeking an extension of the trial date pursuant to section 263.401 of the

family code. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2012) (trial court must proceed to

trial or dismiss termination case one year after Department files petition unless court finds (1) that

“extraordinary circumstances” require granting extension of up to 180 days and (2) that extension

is in child’s best interest). M.G.P. alleged that he had been moved between prison facilities, making

it difficult for him to correspond with his attorney through the mail; he had not had time to respond

to counsel’s most recent correspondence; counsel had attempted unsuccessfully to arrange for

M.G.P. to participate in the trial via video or telephone conference but that the prison was unwilling

to commit an employee to supervise M.G.P. during a trial via telephone and that technology

problems made a video-conference impossible; and M.G.P. was in a drug-treatment program that,

if completed, would result in a reduction of sentence that he “estimate[d] . . . to be effective close

to September of 2013.” M.G.P. stated that his attorney had not been able to “alert him as to the



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gravity of” the case and that he therefore had not contacted friends and family to arrange for someone

to care for the children while he is incarcerated. However, he said that a woman who was “fictive

kin” to the children had agreed to care for them and to be an adoptive placement, if necessary, and

named M.R.’s brother as another potential foster or adoptive parent for the children.

               The trial court held a hearing on M.G.P.’s motion. The court noted that M.G.P. had

not provided any affidavits related to the drug-treatment plan, his release date, or his plans for the

children, and counsel stated that he had not confirmed M.G.P.’s representations about a possible

September 2013 release date. The Department informed the court that “there’s been no indication

that he will be getting out any earlier than 2015” and that federal records showed a release date

of January 19, 2015. The Department argued that a six-month extension would have little effect

because M.G.P. would still be incarcerated, the Department would have no chance to observe

his interactions with the children, and the children would linger in uncertainty for longer. The trial

court denied the motion, proceeded to trial, and terminated M.G.P.’s and M.R.’s parental rights.

               M.G.P. filed a motion for new trial, attaching an affidavit dated November 26, 2012,

in which M.G.P. averred that his projected release date is January 19, 2015, but that if he completed

the drug-treatment program he was currently enrolled in, he would be released to a halfway house

in September or October 2013,1 at which time he would begin to work and care for the children with

the help of the woman he had proposed as a temporary placement. He attached a letter from the

prison’s Psychology Programs Coordinator, who stated that if M.G.P. successfully completed the

drug treatment program, he would be “eligible to receive up to 12 months off his sentence.”


       1
         The affidavit actually said the halfway house release would be in September or October 2012,
but since the affidavit was written in November 2012, we assume that was a typographical error.

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               M.G.P. argues that the trial court abused its discretion in denying his motion for

an extension because he was prevented from participating in the hearing and trial, thus violating his

due process rights to access to the court system. We disagree.

               The family code bars a trial court from granting an extension of a final trial date

unless there are “extraordinary circumstances” that require it and the extension is in the child’s best

interest. Id. § 263.401(b). Appellant did not present evidence via affidavit before the trial date, and

there was no indication that he was in any way barred from doing so by his moves between prisons.

Even if the trial court had considered counsel’s representations of an expected September 2013

release date as evidence, the longest the court could have extended the cause would have been to

June 2013. Further, it appears from the Psychology Programs Coordinator’s letter that the earliest

possible release date would be January 2014, one year earlier than the original January 2015 release

date, and that M.G.P.’s receiving an early release was not a certainty. M.G.P. did not provide the

Department with the names of anyone who might be able to care for the children until shortly before

trial, although he was aware of the pending proceeding since at least February 2012, eleven months

before trial, and the Department’s witnesses testified that granting an extension was not in the best

interest of the children, who needed certainty and stability in their lives.

               In considering whether an inmate’s right to access the courts has been violated, we

consider a number of factors, including whether his claims are substantial, whether his testimony

could be effectively offered by other means, whether the trial is before the court or a jury, whether

an evaluation of his credibility is important, and, most importantly, whether he is represented by

counsel. Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex. App.—Texarkana 1994, writ denied) (citing



                                                   4
Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976)). M.G.P. knew about the termination

proceeding almost one year before trial, his attorney was appointed about seven months before trial,

and the two were able to communicate by mail and phone, albeit sometimes with substantial delays.

Despite that, M.G.P. did not take steps to provide evidence in affidavit form, nor did he attempt to

inform the Department of potential placements for the children until mere days before trial. More

important, M.G.P. did not even attempt to show that granting the extension would be in the

children’s best interests. See Tex. Fam. Code Ann. § 263.401(b). Based on this record, M.G.P. has

not shown that the trial court abused its discretion in denying his motion for an extension or

in determining that going forward with the trial would violate his right of access to the courts. See

In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003) (trial court’s decision about how inmate can

participate in trial is reviewed for abuse of discretion); In re A.J.M., 375 S.W.3d 599, 604 (Tex.

App.—Fort Worth 2012, pet. denied) (denial of motion to extend reviewed for abuse of discretion).

               We overrule M.G.P.’s sole issue on appeal and affirm the trial court’s termination

decree.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: May 16, 2013




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