                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-12-00522-CV
                            ________________________

                       IN THE INTEREST OF N.M.G., A CHILD

                          On Appeal from the 181st District Court
                                  Randall County, Texas
                Trial Court No. 64,078-B, Honorable John Board, Presiding


                                    June 10, 2013

                           MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Jason Gutierrez, father of N.M.G, appeals from an order denying the special

appearance he filed in this termination case. N.M.G.’s aunt and uncle sought to end the

parent-child relationship between Gutierrez and his child.      So, they initiated suit in

Texas to do so. Gutierrez, who was and is an inmate in a Colorado federal prison,

received citation and filed the special appearance, contending that Texas state courts

lacked personal jurisdiction over him since he had never been to Texas. The trial court

overruled the special appearance. Gutierrez now attacks the decision by asserting that

1) he was denied due process when his objection to the hearing on the special

appearance issue was denied, 2) notice of the telephonic hearing was insufficient, 3)
the petitioners/appellees failed to carry their burden of proof on the special appearance

issue, and 4) the cause should be remanded for findings of fact and conclusions of law

regarding the court’s denial of his special appearance. Each issue is overruled.

       We initially address the argument that personal jurisdiction was not shown to

exist over Gutierrez and reject it because the State of Texas need not have personal

jurisdiction over a parent in a child custody matter. In the Interest of S.A.V., 837 S.W.2d

80, 84 (Tex. 1992).    Furthermore, termination cases have been likened to custody

matters, In the Interest of J.C.B., 209 S.W.3d 821, 824 (Tex. App.–Amarillo 2006, no

pet.), and therefore, personal jurisdiction over the parent whose interest is being

terminated is unnecessary. White v. Blake, 859 S.W.2d 551, 564 (Tex. App.–Tyler

1993, no writ); accord, Williams v. Knott, 690 S.W.2d 605, 607-608 (Tex. App.–Austin

1985, no writ) (holding that personal jurisdiction over the parent is unnecessary); In the

Interest of M.S.B., 611 S.W.2d 704, 706 (Tex. Civ. App.–San Antonio 1981, no writ)

(holding the same). So, whether or not anyone established the existence of personal

jurisdiction over Gutierrez matters not here.

       Regarding the contention that appellant was entitled to personally appear at the

hearing upon his special appearance, we note that Gutierrez had no absolute right to do

so. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (stating that an inmate does not

have an absolute right to appear at every court proceeding).         Rather, the decision

whether an inmate should be allowed to appear in person depends upon the

consideration of various factors.       They include such things as the cost and

inconvenience of transporting the prisoner to the courtroom; the security risk the

prisoner presents to the court and public; whether the prisoner's claims are substantial;

whether the matter's resolution can reasonably be delayed until the prisoner's release;

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whether the prisoner can and will offer admissible, noncumulative testimony that cannot

be effectively presented by deposition, telephone, or some other means; whether the

prisoner's presence is important in judging his demeanor and credibility; whether the

trial is to the court or a jury; and the prisoner's probability of success on the merits. Id.

Moreover, the burden lies with the inmate to show that those factors favor his request to

appeal. Id. In considering those factors against the record before us, we cannot say

that Gutierrez satisfied his burden.

       Most importantly, his motion lacked substance, as illustrated above. Personal

jurisdiction over him was unnecessary given the nature of the proceeding. So, there

would be no reason to proffer evidence or call witnesses. Additionally, Gutierrez was

imprisoned in Colorado, not Texas, and in a federal facility.         One can reasonably

conclude that acceding to his request would require the expenditure of monetary sums

sufficient to transport him and his law enforcement chaperone across state lines and

entail extensive coordination between multiple and quite independently sovereign

jurisdictions. And, again, this would be done to attend a hearing on a motion that had

little chance of success. We further note that alternate means were available through

which Gutierrez could present arguments and tender evidence if any were needed, that

means being a telephone conference call. Indeed, that means was offered him, and he

refused it. Given these circumstances, we cannot say that Gutierrez established any

entitlement to appear in person.

       As for Gutierrez’ complaints about the manner of notice given him of the

telephone hearing, we note that he acknowledged, via his appellate brief, that he had at

least three days prior notice of the proceeding.         Given this concession, he then

observed in the same brief that the true “issue” did not concern the notice or its

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substance but rather his “right not to appear.” He allegedly had such a right because

had he participated telephonically, he would have waived his complaints about the

notice of the hearing and manner in which it occurred. Such a contention ignores the

fact that voicing an objection in compliance with Texas Rule of Appellate Procedure

33.1 preserves and perfects that objection for review. In the Interest of W.D.H., 43

S.W.3d 30, 33 n.4 (Tex. App.–Houston [14th Dist.] 2001, pet. denied). Simply put, he

could have participated telephonically while still preserving his complaints.

       As for the last issue, a trial court need not file findings of fact and conclusions of

law in appeals from interlocutory orders.        TEX. R. APP. P. 28.1.   As appellant also

acknowledged in his brief, the order about which he complains is interlocutory.

       Accordingly, we affirm the order denying his special appearance.



                                          Per Curiam




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