
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00627-CV


Ted Larson, Appellant

v.

Jack Giesenschlag, Appellee




FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2010-0071A, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING


O P I N I O N
 
		In this restricted appeal, appellant Ted Larson challenges the trial court's order
terminating his parental rights to his child, R.L., in a private termination suit filed by R.L.'s
maternal grandfather.  See Tex. Fam. Code Ann. § 101.032(a) (West 2008) (providing that suit to
terminate parental rights is suit affecting parent-child relationship), § 102.003(a)(9) (West Supp.
2011) (providing that suit affecting parent-child relationship may be filed by person, other than
foster parent, who has had actual care, control, and possession of child for at least six months).
Larson, who was incarcerated at the time, did not appear or otherwise participate in the bench trial
that resulted in the termination of his parental rights.  In two points of error, Larson contends that
the trial court erred in failing to make an express, independent finding that appointment of an
attorney ad litem was required and that the trial court erred in failing to allow him to participate in
the trial.  Because we conclude that the trial court abused its discretion in denying Larson's request
to participate, we reverse the order of the trial court and remand for further proceedings consistent
with this opinion.
BACKGROUND		Larson is the father of R.L., born in February 2007.  Larson's wife and R.L.'s mother,
Amy Larson, died of pneumonia in December 2009, when R.L was just two years old. (1)  At the time
of his wife's death, Larson was serving a two-year sentence in the Texas Department of Criminal
Justice and had thirteen months remaining on his sentence.  In January 2010, Jack Giesenschlag,
R.L.'s maternal grandfather, filed an original petition in a suit affecting the parent-child
relationship, seeking termination of Larson's parental rights and appointment as sole managing
conservator of R.L.  See id. § 102.003(9).  Linda Giesenschlag Brower, R.L.'s maternal grandmother
and Giesenschlag's ex-wife, intervened in the suit, seeking grandparent access to or possession of
R.L.  See id. § 154.433 (West Supp. 2011).
		On June 28, 2010, the trial court commenced a bench trial on the matter.  Neither
Brower nor Larson was represented by counsel, and no attorney ad litem had been appointed to
represent the interests of R.L.  Larson did not appear, and Brower appeared pro se.  Prior to the
presentation of any evidence, Brower orally requested that the trial court grant a continuance of the
trial.  She informed the court that she had been unsuccessfully "asking to have an attorney ad litem
by CASA for [R.L.'s] benefit" and "trying very hard to find representation for the child."  She also
told the court that she sought to "give [Larson], the biological father, who's incarcerated at the
moment, to have pro bono legal advice to stand up for his right."
		In response, the trial court informed Brower that Larson was not entitled to a court-appointed attorney because it was "not a criminal matter" and then engaged in the following
exchange with counsel for Giesenschlag:
 
	THE COURT:	[There] are only two instances, I'm aware of, if he wants to
have a presence in the matter.  Has he made that known to us,
[counsel]?
 
	COUNSEL:		Actually, Judge, he filed some sort of pleading and in that
pleading does not ask for a bench warrant, nor does he request
to appear by telephone, nor does he request to appear by
affidavit.  He asked for the case to be postponed.

		The trial court then asked Brower why she now wanted to postpone the trial.  Brower
responded that she had filed affidavits on behalf of herself and Larson and that she needed a two-week continuance so that she could prepare for the proceeding and so that the affidavits could be
used in the hearing.  Brower explained that, while she was not an attorney, she was doing "the best
[she could] to stand up for [her] daughter and for [her] son-in-law's rights not to have an adoption
of his child."  The trial court then denied her request for a continuance.  Brower indicated that she
did not want to participate in the hearing and left the courtroom.
		The trial court then proceeded to hear the case on its merits. The only witness,
Giesenschlag testified in support of his request for termination and introduced documentary evidence
of Larson's criminal history, including a conviction for assault family violence.  See Tex. Penal Code
Ann. § 22.01(b)(1) (West 2011).  During the presentation of Giesenschlag's testimony, the trial
court interrupted to ask Giesenschlag's counsel again about Larson:

	THE COURT:	. . . .  There was no-I don't think the Court has received anything but
a letter from Mr. Larson.
				Did he receive notice of this hearing?
 
	COUNSEL:		Yes, he did, Your Honor.
 
	THE COURT:	Has there been a request by Mr. Larson-he's in prison at this
point?
 
	COUNSEL:		He is, Your Honor.
 
	THE COURT:	Has there been a request by Mr. Larson to make an appearance
in anyway, shape, or form?
 
	COUNSEL:		Only request he made was to postpone this hearing.  He did
not request a bench warrant, or request a phone call [nor] did
he request to appear by affidavit.  However, if the Court
would like to use his letters and responses as evidence in this
case, subject to objections or hearsay, et cetera, I would not be
opposed to letting the Judge consider those for his testimony.
 
	THE COURT:	Well, I think at this point in time I'll consider them for
purposes of an answer, but my question really was to the issue
of whether or not there had been a request by Mr. Larson to
be available in some form.  You're telling me he has not.

	COUNSEL:		The only spot I see that he has requested at the very end he
says it is Respondent's request that the Court pursue one or all
of the following grant intervenor temporary sole managing
conservator of the child, to postpone the proceeding until he's
able to actively pursue and participate in proceedings with
counsel.  I would read that as a request to postpone not to be
present at this hearing at this time.

		At the conclusion of the trial, the trial court entered an order terminating Larson's
parental rights and denying Brower grandparent access and visitation.  Though no findings of fact
or conclusions of law were requested or issued, the trial court's order recites that the court found,
by clear and convincing evidence, that Larson (1) knowingly placed or knowingly allowed the child
to remain in conditions or surroundings that endanger the physical or emotional well-being of the
child, and (2) engaged in conduct or knowingly placed the child with persons who engaged in
conduct that endangers the physical or emotional well-being of the child.  See Tex. Fam. Code Ann.
§ 161.001(1)(D), (E) (West Supp. 2011).  In addition, the order states that "[t]he court [found] that
Jack Giesenschlag has no adverse interest to the child the subject of this suit and would adequately
represent the interest of the child.  No attorney ad litem or amicus attorney was necessary, and none
was appointed."  Id. § 107.021(a-1) (West 2008) (appointment of attorney ad litem is mandatory
unless "the court finds that the interests of the child will be represented adequately by a party to the
suit whose interests are not in conflict with the child's interests").  This appeal followed.
DISCUSSIONRestricted appeal
		A restricted appeal is a direct attack on the judgment and affords a party who did
not participate at trial with an opportunity to correct error in the judgment.  Appellate review of a
restricted appeal is the same scope of review as an ordinary appeal, that is, it is a review of the entire
case.  Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).  In order to
prevail on a restricted appeal, the appellant must show that (1) he filed a notice of appeal within six
months of the date the judgment was signed, (2) he was a party to the underlying lawsuit, (3) he did
not participate in the hearing that resulted in the judgment or timely file any post-judgment motions
or requests for findings of fact or conclusions of law, and (4) error is apparent on the face of
the record  Id.
		In this case, Larson and Brower filed a pro se notice of appeal on September 3, 2010,
more than two months after the trial court entered its order terminating Larson's parental rights and
denying Brower grandparent access.  Giesenschlag then moved to dismiss the appeal on the ground
that Larson and Brower had failed to timely file their notice of appeal.  See Tex. R. App. P. 26.1(b)
(to perfect accelerated appeal, notice of appeal must be filed within twenty days after judgment or
order is signed); see also Tex. Fam. Code Ann. § 109.002 (West 2008) (providing that appeals in
suits for termination of parent-child relationship are treated as accelerated appeals).  On May 26, 2011,
this Court issued an order granting Giesenschlag's motion to dismiss with respect to Brower
and dismissing her appeal for lack of jurisdiction.  However, we denied Giesenschlag's motion
with respect to Larson, concluding that Larson's appeal could proceed as a restricted appeal.  See
Tex. R. App. P. 26.1(c) (to perfect restricted appeal, notice of appeal must be filed within six
months after judgment or order is signed).  Accordingly, the only remaining issue is whether the
error Larson complains of in this appeal is apparent on the face of the record, which consists of all
papers on file in this appeal, including the reporter's record.  See id.
 In this restricted appeal, Larson challenges the trial court's order on grounds that the
trial court erred in (1) failing to make an independent, express finding that R.L. was adequately
represented and that no attorney ad litem or amicus attorney was required or, alternatively, concluding
that the evidence supported such a finding, and (2) failing to allow Larson some means of
participation in the trial terminating his parental rights.
Inmate participation
		We first address whether the trial court erred in failing to allow Larson to participate
in the hearing that resulted in the termination of his parental rights.  Larson contends that the trial
court erred in denying him an alternative means by which to participate in the termination hearing
and, as a result, violated his constitutional due process rights.  We review a trial court's decision on
an inmate's request to participate, either personally or by alternative means, for an abuse of discretion.
In re A.W., 302 S.W.3d 925, 928 (Tex. App.--Dallas 2010, no pet.); see also In re M.A.R.,
No. 03-10-00444-CV, 2012 Tex. App. LEXIS 1484, at *11 (Tex. App.--Austin Feb. 23, 2012,
pet. denied) (mem. op.).  When a trial court's failure to act on an inmate's request for participation,
in person or by other means, effectively bars the inmate from presenting his case, the trial court
abuses its discretion.  In re B.R.G., 48 S.W.3d 812, 820 (Tex. App.--El Paso 2001, no pet.).
		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. Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.--Houston [1st Dist.] 2000, no pet.),
disapproved on other grounds, In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).  Litigants may not
be denied reasonable access to the courts simply because they are inmates.  In re Z.L.T., 124 S.W.3d
at 166; Boulden v. Boulden, 133 S.W.3d 884, 886 (Tex. App.--Dallas 2004, no pet.).  However,
this does not mean that an inmate has an absolute right to personally appear in every proceeding.
In re Z.L.T., 124 S.W.3d at 166.  An inmate's right to access "entails not so much his personal
presence as his opportunity to present evidence or contradict the evidence of the opposing party."
Dodd, 17 S.W.3d at 717.  Thus, when an inmate requests a bench warrant for his personal appearance,
he must include factual information demonstrating the necessity of his appearing at the proceeding.
In re Z.L.T., 127 S.W.3d at 163. However, if a pro se inmate is not allowed to participate in a
proceeding in person, a trial court should nevertheless afford the inmate an opportunity to proceed
by affidavit, deposition, telephone, or other effective means.  In re R.C.R., 230 S.W.3d 423, 427
(Tex. App.--Fort Worth 2007, no pet.); Sweed v. City of El Paso, 139 S.W.3d 450, 452 (Tex.
App.--El Paso 2004, no pet.); Boulden, 133 S.W.3d at 866; see also In re M.A.R., 2012 Tex. App.
LEXIS 1484, at *12-13.
		Giesenschlag does not dispute that Larson had a right to participate in the termination
proceeding.  Instead, Giesenschlag contends that Larson never requested to participate in the trial,
either personally or through alternative means.  While Larson does not dispute that he never requested
a bench warrant, he contends that he made at least three specific requests to participate by alternative
means.  Upon review of the entire record, we agree that Larson requested that he be allowed to
participate by alternative means.
		The record in this case shows that prior to trial, Larson had filed at least five
documents with the trial court protesting Giesenschlag's petition, asserting various facts in
opposition to Giesenschlag's petition, expressing concern for the safety of R.L. with Giesenschlag,
and informing the court that he expected to be released from prison no later than January 2011.
Further, in several of these documents, Larson specifically asked the trial court to take actions which
would potentially allow for the presentation of his case.  First, on May 10, 2010, Larson submitted
a pleading to the court outlining his basic objections to the suit and asking that the trial court
"postpone these proceedings until [he is] able to actively pursue and participate in the proceedings
with counsel."  Again, on June 25, 2010, Larson filed with the court a document entitled "motion
and affidavit to support the dismissal and judgment for the respondent."  In this document, Larson
"begs the court to grant a continuance so that [Larson] and [Brower] can gain competent counsel to
represent them in this matter . . . . Both are without funds to do so at this time."  In addition, just
before the termination hearing, Brower informed the trial court that she had previously filed
affidavits on behalf of herself and Larson, and she requested a continuance so that the affidavits
could be used in the hearing.  The trial court denied Brower's request for a continuance and explained
that the affidavits were not admissible as evidence.
		In a similar case, our sister court of appeals found that a trial court abused its
discretion when it failed to allow a pro se inmate, Robert Daughtery, to participate in his divorce
proceedings.  In re Daughtery, 42 S.W.3d 331, 336 (Tex. App.--Texarkana 2001, no pet.).  While
Daughtery had not specifically requested a bench warrant, he had requested in a motion for
continuance that the trial court consider "an alternative dispute resolution by means of a conference
call."  Id. at 336.  The court of appeals held that the context of Daughtery's request established that
he was "requesting an opportunity to participate in the trial in some manner."  Id.  The court of appeals
explained that the trial court was not limited to allowing Daughtery to participate by conference call
and could have chosen another method to present his case; however, by refusing to allow Daughtery
to participate in the trial in some meaningful way, the court abused its discretion.  Id.
		As in Daughtery, it is clear from the context of Larson's request for a continuance
until his release, his request for appointment of counsel, as well as his numerous attempts to present
his case from prison through objections and affidavits, that he sought to participate in the termination
proceeding in some manner.  See id.; see also Urquidez v. Urquidez, 2004 Tex. App. LEXIS 7993,
* 11 (Tex. App.--El Paso Aug. 31 2004, no pet.) (mem. op.) (holding that trial court abused its
discretion by failing to allow inmate to participate by alternative means, noting that he had proposed
several alternative means such as "appointment of an attorney ad litem or a continuance until he was
released from prison" and "submitting four affidavits of his testimony").  Nevertheless, the trial court
proceeded to determine Larson's parental rights without him, implicitly denying his request for a
continuance.  See In re A.W., 302 S.W.3d at 925 (holding that by signing divorce decree without
addressing request to appear by bench warrant or by alternative means, the trial court implicitly
denied requests).  In addition, the record shows that none of Larson's affidavit testimony or written
responses were considered by the trial court.  Dodd, 17 S.W.3d at 717 ("Should the court find that
the pro se plaintiff inmate in a civil action is not entitled to leave prison to appear personally in
court, then the prisoner should be allowed to proceed by affidavit, deposition, telephone or other
effective means.").  Finally, despite denying Larson's proposed means of participation, nothing in
the record suggests that the court offered Larson any other effective means by which to participate.
See In re A.W., 302 S.W.3d at 930 (explaining that trial court's denial of request to participate by
alternative means is abuse of discretion unless court allows inmate to proceed by some other
effective means).
		The natural right that exists between parents and their children is one of
constitutional dimension.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); Williams v. Williams,
150 S.W.3d 436,  442-43 (Tex. App.--Austin 2004, pet. denied).  A parent's interest in the accuracy
and justice of the decision to terminate his or her parental status is, therefore, a commanding one.
In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).  In this case, Larson had a right to be heard in this suit
seeking to terminate his parental rights.  While the trial court was not obligated to allow Larson to
participate in any particular manner, it was obligated to allow Larson to participate in some
meaningful manner.  See Daughtery, 42 S.W.3d at 336.  Because Larson was not allowed to
participate in any manner, his fundamental right to parent his child was terminated without his input.
Based on this record, we conclude that the trial court abused its discretion by denying Larson's
request to participate, effectively barring him from presenting his case at trial.  We sustain Larson's
second point of error on appeal, and we remand this case for the trial court to decide how Larson
may participate effectively.  See Tex. R. App. P. 44.1(a)(2); see also Taylor, 63 S.W.3d at 98
(holding that harm requirement under rule 44.1(a) was met when trial court failed to allow inmate
to participate in any manner).  In order to avoid issuing an advisory opinion, we do not reach the
merits of Larson's first point of error on appeal.  Tex. R. App. P. 47.1 (courts of appeals must hand
down opinions that are as brief as possible while addressing those issues necessary to final
disposition of appeal).

CONCLUSION
		We reverse the trial court's judgment and remand this cause for further proceedings
consistent with this opinion. 
						__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Reversed and Remanded
Filed:   May 11, 2012
1.   Unless otherwise noted, the facts recited herein are taken from the testimony and exhibits
at trial.
