

 











 
 
 
 
 
 
                                   NUMBER
13-01-110-CV
 
                             COURT
OF APPEALS
 
                   THIRTEENTH
DISTRICT OF TEXAS
 
                                CORPUS
CHRISTI
___________________________________________________________________
 
                          IN THE INTEREST OF D. S., A CHILD

___________________________________________________________________
 
                   On
appeal from the County Court at Law No. 5 
                                  of Nueces County, Texas.
__________________________________________________________________
 
                                   O
P I N I O N
 
       Before
Chief Justice Valdez and Justices Hinojosa and Rodriguez
                                Opinion
by Justice Rodriguez
 




Appellant, the biological mother of D.S., a minor child, brings
this appeal following the trial court=s order terminating
her parental rights to D.S.[1]  By eight issues,
appellant generally contends the trial court erred in denying her request for a
bench warrant, denying her request for a jury instruction, and denying her
motion to dismiss the case.  Appellant
also contends the evidence is not factually sufficient to support the jury=s
findings.  We reverse and remand.
                                                 I.  BACKGROUND
Appellant was convicted of possession of cocaine and sentenced
to five years probation.  Approximately
four months after the conviction, D.S. was born.  In April of 1995, the Texas Department of
Protective and Regulatory Services (the Department) began an investigation of
appellant=s home.  The investigation revealed that appellant and
her husband were neglecting D.S.  The
investigation also revealed that D.S. was living in very substandard
conditions.  D.S. was voluntarily placed
in the care of appellant=s mother.




On October 2, 1995, appellant=s probation was revoked for failing to pay
probation fees and not reporting to her probation officer.  Appellant was sent to prison.  Upon her release in 1997, appellant regained
possession of D.S.  However,
approximately one year later, appellant=s probation was
again revoked.  Upon her release from a
parole violator=s facility, the
Department informed appellant that she would have to satisfy the requirements
of a safety plan in order to retain custody of D.S.  In March of 1999, the Department removed D.S.
from appellant=s care, based
on allegations that appellant engaged in prostitution.  Following an adversary hearing, D.S. was
returned to appellant=s care,
however, both appellant and the Department were named
as joint managing conservators of D.S. 
In August of 1999, appellant was arrested for a parole violation and
sent to prison.  D.S. was placed in
foster care.  The Department was
appointed temporary sole managing conservator of D.S.  On September 5, 2000, a jury rendered a
verdict terminating appellant=s parental
rights.  This appeal ensued.
II. 
ANALYSIS
A.  Bench Warrant
By her first issue, appellant contends the trial court erred by
denying her request for a bench warrant. 
A litigant may not be denied access to the courts simply because she is
an inmate.  See Hudson v. Palmer,
468 U.S. 517, 523 (1984); In re I.V., 61 S.W.3d 789, 796 (Tex. App.BCorpus Christi
2001, no pet.).  However, the right of
access is not an absolute one; it is only a qualified right.  In re Z.L.T., No. 04-00-00763-CV, 2002
Tex. App. LEXIS 2666, *3 (San Antonio April 17, 2002, no pet. h.); In re
B.R.G., 48 S.W.3d 812, 819 (Tex. App.BEl Paso 2001,
no pet.); Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex.
App.BCorpus Christi
1997, no pet.).




In determining whether an inmate should personally attend court
proceedings, the trial court must balance the interest of the State in
preserving the integrity of the correctional system with the inmate=s interest in
access to the courts, with a goal of achieving a balance that is fundamentally
fair.  Aguilar v. Alvarado, 39
S.W.3d 244, 248 (Tex. App.BWaco 1999, pet.
denied) (emphasis added); Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.BHouston [1st
Dist.] 2000, no pet.); Pedraza, 960 S.W.2d at 342.  Factors to be considered in weighing these
two interests include, but are not limited to: (1) the cost and inconvenience
of transporting the inmate; (2) the security risk presented by the inmate; (3)
the substance of the matter; (4) the need for witnessing the inmate=s demeanor; (5)
whether the trial is before the jury or judge; and (6) the possibility of
delaying trial until the inmate is released. 
In re I.V., 61 S.W.3d at 796; Pedraza, 960 S.W.2d at 342; see
Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.BDallas 1987, no
writ).  We review the trial court=s determination
under an abuse of discretion standard.  In re I.V., 61 S.W.3d at 797; Aguilar, 39 S.W.3d at
248.
Appellant argues the trial court failed to balance the
interests of the State with her interest before it summarily denied her request
for a bench warrant.  By not applying any
factors to help balance the interests, appellant argues, the trial court abused
its discretion.  We agree with appellant
that the trial court should have at least entertained the relevant factors
before denying her bench warrant.  See
Zuniga v. Zuniga, 13 S.W.3d 798, 802 (Tex. App.BSan Antonio
1999, no pet.) (trial courts need to articulate factors that weigh both in
favor and against issuing a bench warrant); see also Nance v. Nance, 904
S.W.2d 890, 892 (Tex. App.BCorpus Christi
1995, no writ) (trial court must balance the government=s interest
against the prisoner=s right of
access to courts by considering the various factors).
During the hearing on appellant=s request for a bench warrant, the trial
court stated, in pertinent part,
[S]o I would
have to make some type of assessment. . . . [T]his isn=t really one
that I want - - that deserves it, so to speak . . . is yours one that deserves
it?  I don=t want to start drawing those
distinctions, and so I haven=t granted any
[bench warrants] yet, and yours would be the first.
 




The
trial court erred by not considering any factors in balancing the State=s interest and
appellant=s
interest.  See, e.g., Brewer, 737
S.W.2d at 423 (citing Stone v. Morris, 546 F.2d 730, 735 (7th Cir.
1976)) (the trial court must weigh the interest of the plaintiff in
presenting his testimony in person against the interest of the State in
maintaining the confinement of the prisoner). 
By summarily denying every bench warrant for no other
reason than not wanting to make Asome type
of assessment@ the trial
court is failing to act on an inmate=s legitimate
request to be present.  See I.V.,
61 S.W.3d at 797; Byrd v. Attorney Gen., 877 S.W.2d 566, 569 (Tex. App.BBeaumont 1994,
no writ).




The State argues that even though the judge did not address any
relevant factors when it denied appellant=s bench
warrant, there was no abuse of discretion because appellant was able to
participate in the proceeding by telephone. 
This argument would be valid if the trial court had first weighed the
relevant factors.  See In re Taylor,
39 S.W.3d 406, 412 (Tex. App.BWaco 2001)
(orig. proceeding).  Because appellant=s right to be
present is a qualified right, see In re B.R.G., 48 S.W.3d at 819,
the trial court must weigh the relevant factors and have a reason for
denying a bench warrant before it decides to only allow appellant to
participate by telephone.  See id.
at 820 (AIf, after
considering these factors, the trial court determines that the prisoner is
not entitled to appear personally, then the trial court should permit him to
proceed by affidavit, deposition, telephone, or other effective means.@) (emphasis added); see also Nichols v. Martin, 776
S.W.2d 621, 623 (Tex. App.BTyler 1989, no
writ) (concluding trial court must make pertinent inquiries regarding appellant=s request to
appear); cf. Nance, 904 S.W.2d at 892 (the order reflects various
findings demonstrating that the trial court did not arbitrarily refuse to issue
the requested bench warrant).  In this
instance, the trial court=s decision not
to weigh any relevant factors was arbitrary and unreasonable.  See Nance, 904
S.W.2d at 892.
Our review of the record reveals that if the trial court had
considered the relevant factors in determining whether the bench warrant should
be issued, it is likely it would have allowed appellant to be present at
trial.  For example, appellant did not
seem to be a huge security risk; the parent-child relationship is a fundamental
liberty interest, see Santosky v. Kramer, 455 U.S. 745, 753 (1982); and
the trial would only have been delayed for a short time, as appellant was
scheduled for release only fifteen days after the date the trial began.  See Pedraza, 960 S.W.2d
at 342.
Thus, because the trial court did not weigh any relevant
factors before it summarily denied appellant=s request to personally attend the
hearing, see, e.g., In re B.R.G., 48 S.W.3d at 820; Pedraza, 960
S.W.2d at 342; Nance, 904 S.W.2d at 892; Byrd, 877 S.W.2d at 569,
we find the trial court abused its discretion. 
See In re I.V., 61 S.W.3d at 797;
Nance, 904 S.W.2d at 892.




In addition, judgments terminating the parent-child
relationship must be carefully scrutinized because of the importance of that
relationship.  In re
K.R., 63 S.W.3d 796, 800 (Tex. 2001).  Having a parent not present at her own trial
to terminate her parental rights could leave the jury with an impression that
the proceeding is not important to the parent. 
Furthermore, because of obvious negative connotations associated with a
parent who is incarcerated, it is important for the jury to witness the
demeanor and credibility of the parent to get a sense of the parent=s conviction to
care for the child.  For these reasons,
we conclude the outcome of the trial was probably improper.  See Tex.
R. App. P. 44.1; Taylor v. Taylor, 63 S.W.3d 93, 98 (Tex. App.BWaco 2001, no pet.).  Appellant=s first issue is sustained.[2]
Accordingly,
we reverse the trial court and remand for a new trial on the merits.                                                                   NELDA
V. RODRIGUEZ
Justice
 
Publish.

Tex. R. App. P. 47.3.
 
Opinion
delivered and filed
this 3rd day of
July, 2002.                                     




[1]Appellant
and the father of D.S. had their parental rights terminated in the same
proceeding.  The father, however, is not
a party to this appeal.


[2]Because
of our disposition of appellant=s
first issue, we need not address her remaining issues.  See Tex.
R. App. P. 47.1.


