                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-07-394-CV


IN THE INTEREST OF C.M.R, D.C.R.,
A.N.R., AND D.R.R., II, CHILDREN

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            FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Danny R., pro se, appeals from the trial court’s order terminating his

parental rights in his children, C.M.R., D.C.R., A.N.R., and D.R.R., II.   We

affirm.

                        II. Factual and Procedural History

      Danny is an inmate in the Missouri prison system. In October 2006,

Victoria, the children’s mother, filed a petition to terminate Danny’s parental


      1
          … See Tex. R. App. P. 47.4.
rights, alleging as grounds that Danny had been convicted or placed on

community supervision for causing the death of or serious bodily injury to a

child and had knowingly engaged in criminal conduct that had resulted in his

conviction of an offense and confinement or imprisonment and inability to care

for the children for not less than two years from the date of the petition’s filing.

      In November 2006, Danny filed a motion for appointment of counsel and

an answer, admitting that he had pleaded guilty to causing a person’s death but

denying that the person was a child and stating that he had not abandoned his

children. Danny did not generally deny the allegations in Victoria’s petition, and

he did not specifically deny that he had knowingly engaged in criminal conduct

that resulted in his imprisonment for at least two years into the future. He also

filed a petition for habeas corpus ad testificandum.

      The trial court set the case for trial on February 20, 2007. Danny filed

another motion for appointment of counsel, another petition for writ of habeas

corpus ad testificandum, asserting that his testimony at trial was necessary,

and a motion to be allowed to participate in the trial telephonically.

      The trial court did not reach the case on February 20, so it reset the trial

for October 15. Victoria’s counsel sent Danny a letter stating that the trial

court “has given you the opportunity to be heard and present your evidence by

affidavit.”

                                         2
      Danny filed an amended answer on October 9, stating that he “believ[ed]

that no such grounds exist for termination.”          He admitted that he was

incarcerated for rape but asserted that it was only a second-degree felony and

that his conviction and imprisonment did not necessarily support termination.

Danny attached several exhibits to his amended answer, including Victoria’s

response to his request for disclosure, in which she stated that one basis for

termination she would attempt to prove at trial was his conviction for sexually

assaulting a minor under the age of fourteen years. He also attached his own

affidavit, reminiscing about his experiences and feelings as a father and touting

his parental abilities and jailhouse efforts at self-improvement, such as attending

Narcotics Anonymous meetings and working toward his G.E.D.

      The trial court heard the case on October 15. Victoria was the only

witness. She testified that Danny was the presumed father of the children, that

he was serving time in Missouri on a conviction of sexually assaulting a child,

that he had also been convicted for causing the death of a different child while

he was driving while intoxicated, that he had never supported the children, that

he had a drug problem, that he was violent towards her and the children, that

termination was in the children’s best interest, and that she was in a

relationship with a man who wanted to adopt the children.           After Victoria

rested, the trial court said to her counsel, “He [Danny] filed some pleadings and

                                        3
so forth. You saw those, right?” Counsel answered, “Yes . . . . I would just

note that he didn’t deny any of the allegations nor did he claim any support in

those affidavits.”

      The trial court terminated Danny’s parental rights, finding as grounds that

Danny had

      a.    been convicted or placed on community supervision . . . for
            being criminally responsible for the death or serious injury of
            a child under section 21.11 of the Texas Penal Code
            [indecency with a child] and

      b.    knowingly engaged in criminal conduct that has resulted in
            his conviction of an offense and confinement or
            imprisonment and inability to care for the children for not less
            than two years from the date the petition was filed

and that termination was in the children’s best interest. Danny filed this appeal.

                                III. Due Process

      In his first issue, Danny argues that the trial court denied him due process

by failing to grant his requests for appointment of counsel, for a writ of habeas

corpus ad testificandum, and to participate in the trial telephonically, thereby

depriving him of a meaningful opportunity to be heard.

      All litigants who are forced to settle disputes through the judicial process

have a fundamental right under the federal constitution to be heard at a

meaningful time in a meaningful manner.        In re D.D.J., 136 S.W.3d 305,

313–14 (Tex. App.—Fort Worth 2004, no pet.). A prisoner’s right to have

                                        4
access to the courts entails not so much his personal presence as the

opportunity to present evidence or to contradict the evidence of the opposing

party. Id. Should the court find that the pro se inmate in a civil action is not

entitled to leave prison to appear personally in court, then it should allow the

prisoner to proceed by affidavit, deposition, telephone, or other effective

means. Id.

A. Appointment of Counsel

      No statutory right to appointed counsel exists in a private termination

suit. In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet.

filed). The legislature has mandated the appointment of counsel for indigent

parents in a termination suit only “in a suit filed by a governmental entity in

which termination of the parent-child relationship is sought.” Compare Tex.

Fam. Code Ann. §§ 107.001(1), .015(a), (b), .021 (Vernon 2005) (appearing

to permit, in a private termination suit, permissive appointment of an attorney

ad litem for a parent and payment of such attorney ad litem “by one or more

of the parties”) with § 107.013(a)(1) (mandating appointment of attorney ad

litem for an indigent parent in a termination suit filed by a governmental entity);

see also Tex. Gov’t Code Ann. § 24.016 (Vernon 2004) (stating that “[a]

district judge may appoint counsel to attend the cause of a party who makes

an affidavit that he is too poor to employ counsel to attend to the cause”)

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(emphasis added); Gibson v. Tolbert, 102 S.W.3d 710, 712–13 (Tex. 2003)

(recognizing courts’ inherent power to appoint counsel in civil cases under

exceptional circumstances). Nor does due process require the appointment of

counsel in every termination case, even when the State initiates the termination

proceeding. Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 31–32, 101 S. Ct.

2153, 2161–62 (1981).       Because the appointment of counsel in a private

termination is within the trial court’s sound discretion, we overrule this part of

Danny’s first issue. See id., 101 S. Ct. at 2161–62; In re J.C., 250 S.W.3d

at 489.

B. Habeas Corpus ad Testificandum

      The writ of habeas corpus ad testificandum is also known as a bench

warrant. In re Z.L.T., 124 S.W.3d 163, 164 (Tex. 2003). We review a trial

court’s ruling on a bench warrant request for an abuse of discretion. See id. at

165. A litigant cannot be denied access to the courts simply because he is an

inmate. Id. However, our laws do not guarantee an inmate the absolute right

to personally appear in every court proceeding. Id. “Instead, the inmate’s right

of access to the courts must be weighed against the protection of our

correctional system’s integrity.” Id.

      Texas courts consider several factors when deciding whether to grant a

prisoner’s request for a bench warrant, including (1) the expense and

                                        6
inconvenience of transporting the inmate to court; (2) whether the inmate

presents a security risk to the court and public; (3) whether the inmate has

substantial claims; (4) whether the proceeding can reasonably be delayed until

the inmate’s release; (5) whether the inmate “can and will offer admissible,

noncumulative testimony that cannot be effectively presented by deposition,

telephone, or some other means”; (6) whether the inmate’s “presence is

important in judging his demeanor and credibility”; (7) whether the case will be

tried before a jury or to the court; and (8) the inmate’s probability of success

on the merits. Id. at 165–66 (explaining that in recognizing these factors,

Texas courts have followed Stone v. Morris, 546 F.2d 730, 735–36 (7th Cir.

1976)).

      “In general, our rules place the burden on litigants to identify with

sufficient specificity the grounds for a ruling they seek. A litigant’s status as

an inmate does not alter that burden.” Z.L.T., 124 S.W.3d at 166 (citations

omitted). An inmate who claims a constitutional right to access must explain

“why his appearance in court [is] necessary to preserve his constitutional

right[.]” Id. The trial court does not have a duty to independently inquire into

“relevant facts not provided by the moving party.” Id. Rather, the inmate who

seeks a bench warrant “must justify the need for his presence.” Id.




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      In Z.L.T., the supreme court noted that the inmate’s request for a bench

warrant provided no information that would allow the trial court to assess the

necessity for his appearance. Id. While the Z.L.T. inmate’s request listed the

Stone factors, the request “failed to provide any factual information showing

why his interest in appearing outweighed the impact on the correctional

system.” Id. The court also noted that the only pertinent information in the

inmate’s request was that he was incarcerated in a facility more than 200 miles

from the trial court. Id. The court held that the inmate failed to meet his

burden to establish his right to relief and that the trial court did not abuse its

discretion by overruling the bench warrant request. Id.

      In this case, Danny did not list the Stone factors or recite facts relevant

to those factors.   His first request stated only that he was incarcerated in

Missouri, that he could not afford an attorney, and that he would be

substantially and irreparably prejudiced by his inability to attend trial.    His

second request made essentially the same assertions and noted the serious

nature of the termination proceeding. He offered no facts showing that his

interest in appearing outweighed the impact and burden on the correctional

system.   See Z.L.T., 124 S.W .3d at 166.       Nor did Danny explain why his

appearance by alternative measures, such as by telephone, deposition, or

affidavit, would not be sufficient under the circumstances of this case. See id.

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at 165–66 (noting that one of the Stone factors is whether the testimony

cannot effectively be presented by deposition, telephone, or other means).

       Because Danny’s bench warrant requests did not recite facts supporting

the Stone factors, we hold that the trial court did not abuse its discretion by

denying his request.

C. Telephonic Appearance

       When a trial court denies a request for a bench warrant and does not

allow an inmate to appear in person, it should afford the inmate the opportunity

to proceed by affidavit, deposition, telephone, or other means. D.D.J., 136

S.W.3d at 314; Boulden v. Boulden, 133 S.W.3d 884, 886–87 (Tex.

App.—Dallas 2004, no pet.); see also Z.L.T., 124 S.W.3d at 165–66. Again,

we review the trial court’s ruling on an appellant’s request to participate at trial

by alternate means for an abuse of discretion. See Boulden, 133 S.W.3d at

886.

       Here, the trial court afforded Danny the opportunity to appear by

affidavit, and he took advantage of that opportunity by filing affidavits. Danny

argues that had he appeared telephonically, he could have objected to Victoria’s

counsel’s leading questions and cross-examined Victoria about the details of his

conviction for causing another individual’s death, and particularly the victim’s

age. While some of the questions counsel asked Victoria were leading, we

                                         9
cannot see how Danny’s telephonic objection to the questions would have

changed the proceeding’s outcome, even if the trial court had sustained his

objections. As for cross-examining Victoria about the age of the person whose

death Danny admits he caused, he contested Victoria’s assertion that the

person was a child in several of his verified trial court pleadings, and he could

have done so in his trial affidavit as well. Under the circumstances presented

here, we hold that Danny has failed to show that the trial court abused its

discretion by allowing him to appear by affidavit rather than telephonically.

      To sum up, due process does not require appointment of counsel. See

Lassiter, 452 U.S. at 31–32, 101 S. Ct. at 2162. But it does require a trial

court to give an incarcerated litigant some opportunity to be heard, be it in

person, telephonically, or by affidavit. D.D.J., 136 S.W.3d at 314; Boulden,

133 S.W.3d at 886. In this case, the trial court did not abuse its discretion by

refusing to appoint counsel or by denying Danny’s requests to appear in person

and telephonically, and the trial court fulfilled Danny’s due process rights by

allowing him to appear by affidavit. We therefore overrule Danny’s first issue.

                        IV. Sufficiency of the Evidence

      In his second issue, Danny argues that “[t]he [trial] court erred in its

findings favoring [Victoria], as [she] failed to meet the burden of proof

necessary for termination.” Because Danny’s issue implicates the burden of

                                       10
proof, rather than arguing the absence of any evidence, we construe his issue

as a challenge to the factual sufficiency of the evidence. See Tex. R. App. P.

38.9.

A. Standard of Review

        In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish at least one

ground listed under subdivision (1) of the statute and must also prove that

termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001

(Vernon Supp. 2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).             Both

elements must be established; termination may not be based solely on the best

interest of the child as determined by the trier of fact. Tex. Dep’t of Human

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

        The petitioner must justify termination by clear and convincing evidence.

Tex. Fam. Code Ann. §§ 161.001, 161.206(a); In re J.F.C., 96 S.W.3d 256,

263 (Tex. 2002). This intermediate standard falls between the preponderance

standard of ordinary civil proceedings and the reasonable doubt standard of

criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re

C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied). It is

defined as the “measure or degree of proof that will produce in the mind of the




                                        11
trier of fact a firm belief or conviction as to the truth of the allegations sought

to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2002).

      When reviewing the evidence for factual sufficiency, we must give due

deference to the fact-finder’s findings and not supplant the verdict with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a fact-finder could reasonably form a firm

conviction or belief that the parent violated the relevant conduct provision of

section 161.001(1) and that the termination of the parent’s parental rights

would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.

2002). If, in light of the entire record, the disputed evidence that a reasonable

fact-finder could not have credited in favor of the finding is so significant that

a fact-finder could not reasonably have formed a firm belief or conviction in the

truth of its finding, then the evidence is factually insufficient. H.R.M., 209

S.W.3d at 108. We may affirm termination only on a ground that was both

pleaded by the party seeking termination and found by the trier of fact. In re

J.R.S., 232 S.W.3d 278, 285 (Tex. App.—Fort Worth 2007, no pet.); Vasquez

v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 194 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied).




                                        12
B. Unassigned Error

      Danny did not challenge the trial court’s findings under section

161.001(1) of the family code, nor does he now appeal the termination of his

parental rights with regard to those findings. 2    See Tex. Fam. Code Ann.

§ 161.001(1). An appellate court cannot reverse on “unassigned error,” i.e.,

a ground not presented in the appellate briefs. Pat Baker Co. v. Wilson, 971

S.W.2d 447, 450 (Tex. 1998). Because Danny does not appeal on the basis

of the trial court’s findings under section 161.001(1), we may not address the




      2
        … In his appellate brief, Danny states, “Clearly, given Appellant’s
incarceration, he wouldn’t and didn’t deny having committed a felony. In and
of itself, this could satisfy the first prong for termination.” In his closing, he
adds,

      It was Appellant’s admission of incarceration which can lead a
      reasonable trier of facts to substantiate the first prong necessary
      for setting up a possible termination of his parental rights.
      However, it was the second prong [the best interest finding on
      which] she [Victoria] struggled to live up to the burden of proof.

      Furthermore, Danny admitted in his pleadings that he had been
incarcerated for rape, and he admitted that his anticipated release date was
eighteen months from October 9, 2007, or around April 1, 2009. Victoria filed
the original petition to terminate his parental rights on October 19, 2005. See
Tex. Fam. Code Ann. § 161.001(1)(Q) (stating that a ground for termination of
parental rights is that the parent knowingly engaged in criminal conduct that
resulted in his conviction of an offense and confinement and inability to care for
the children for not less than two years from the date of filing the petition).
The trial court found that subsection (Q) was proven by clear and convincing
evidence.

                                       13
factual sufficiency of the evidence to support those findings. See id.; see also

In re B.L.D., 113 S.W.3d 340, 350–51 (Tex. 2003) (declining to extend

fundamental error doctrine to termination cases for review of unassigned error).

C. Best Interest Finding

      Danny complains only that the trial court did not consider “all the weight

of the evidence” as to the best interest finding under section 161.001(2). See

Tex. Fam. Code Ann. § 161.001(2). He argues,

      So, when it comes to proving what’s in the best interest of the
      children, and all one has to go on is a she said/he said scenario, the
      question begs to be asked, did she meet that burden of proof
      when, all things considered, either parent’s answers could rightly
      be seen as self-serving, as each would see their position as being
      in the “best interest”?

He claims that, with regard to the best interest finding, Victoria did not meet

the clear and convincing standard of proof necessary to terminate his parental

rights.

      Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(Vernon 2002). There is also a strong presumption that keeping a child with

a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the child include: (1) the desires of the child;


                                        14
(2) the emotional and physical needs of the child now and in the future; (3) the

emotional and physical danger to the child now and in the future; (4) the

parental abilities of the individuals seeking custody; (5) the programs available

to assist these individuals to promote the best interest of the child; (6) the plans

for the child by these individuals or by the agency seeking custody; (7) the

stability of the home or proposed placement; (8) the acts or omissions of the

parent which may indicate that the existing parent-child relationship is not a

proper one; and (9) any excuse for the acts or omissions of the parent. Holley

v. Adams, 544 S.W .2d 367, 371–72 (Tex. 1976).                These factors are not

exhaustive; some listed factors may be inapplicable to some cases; other

factors not on the list may also be considered when appropriate. C.H., 89

S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be

sufficient in a particular case to support a finding that termination is in the best

interest of the child. Id. On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding. Id.

         Victoria testified that Danny was in jail in Missouri for a felony conviction

and that he had been convicted for sexual contact with a child and rape of a

child.    She testified that he had also been convicted for being criminally

responsible for the death or serious bodily injury of a twelve-year-old child four

or five years before, although that was not the crime for which he was

                                          15
presently incarcerated. She also testified that he had never provided support

to her and the children, that he had a drug problem, that he had been violent

toward her and the children, and that she felt that it was in the children’s best

interest that his parental rights be terminated. Victoria added that she had been

in her current relationship with another man for three years, that she hoped he

would adopt her children, and that he (the other man) wanted this as well. The

trial court granted to Victoria her requested relief.

      In her response to Danny’s request for disclosure under rule 194.2(c),

Victoria stated:

      Respondent has been convicted of Rape-1st Degree-Sexual
      Intercourse with a person less than fourteen years old and upon
      release from prison the Respondent will have to register as a sex-
      offender, and Respondent has been convicted of selling alcohol to
      a minor. Respondent has never had a job nor has ever support[ed]
      the children. Respondent has abused alcohol and drugs.

Tex. R. Civ. P. 194.2(c) (stating that a party may request disclosure of “the

legal theories and, in general, the factual bases of the responding party’s claims

or defenses”).

      Danny admitted that he had been incarcerated for second-degree rape but

not first degree rape as Victoria stated in her discovery response. And he

stated that his alleged conviction for “selling alcohol to a minor” was actually

for his own underage drinking.      Danny admitted that he was convicted of


                                       16
vehicular manslaughter, but he claimed that his passenger, who died, was

approximately twenty or twenty-one years old, “making her, presumably, not

a child in the eyes of the law.”

      Danny attached a brief work history showing that he had been employed

with one company from 1999–2000; worked for Dairy Queen for two months

in 2000; performed freelance construction and carpeting from 2000–2001; and

went on social security disability because of injury in a serious car wreck from

2001–2004. He suggested that the allegations of physical and verbal abuse

fell under “normal and ‘societally acceptable’ forms of disciplinary action”

because Victoria did not present any police reports, “Department of Family

Services” reports, or medical records to back up the claims.

      Danny complained that Victoria had cut off his contact with his children

while he was incarcerated. He stated that if the court ordered him to take any

parenting classes or supervised visits, he would “gladly” do that.       Danny

averred that he loved his children, that he had “taken complete responsibility

for [his] actions and [had] great remorse,” and that his parental rights should

not be terminated. He stated that, while incarcerated, he had taken anger

management and G.E.D. classes, participated in job corps, placed himself on

the waiting list for Narcotics Anonymous, and continuously sent Christmas

presents and birthday cards to his children.

                                      17
      Based on this record, the trial court could have reasonably formed a firm

conviction or belief that termination of Danny’s parental rights would be in the

children’s best interest.   See C.H., 89 S.W.3d at 28.         Notwithstanding

Victoria’s testimony, Danny’s own admissions about his criminal history

contradict his argument that termination of his parental rights would not be in

the children’s best interests. And if the trial court chose to believe Victoria’s

testimony, it could reasonably have found that Danny never financially

supported the children, that he was violent, that he had a drug problem, and

that, contrary to Danny’s assertions, he was unlikely to change. Therefore, we

overrule Danny’s second issue.

                                 V. Conclusion

      Having overruled Danny’s two issues, we affirm the trial court’s order

terminating Danny’s parental rights in C.M.R., D.C.R., A.N.R., and D.R.R., II.


                                            PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and GARDNER, J.

GARDNER, J. concurs without opinion.

DELIVERED: November 20, 2008




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