                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00101-CV


IN THE INTEREST OF S.N.C., A
CHILD




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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-98174J-13

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                        MEMORANDUM OPINION1

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      Appellant S.C. (Father) appeals from the trial court’s order terminating his

parental rights to S.N.C. We affirm.

      On March 24, 2013, the Texas Department of Family and Protective

Services (DFPS) received a report alleging the neglectful supervision of S.N.C.


      1
       See Tex. R. App. P. 47.4.
by C.E. (Mother) and Father. S.N.C. was removed from the home and placed

with a neighbor until DFPS could seek temporary managing conservatorship of

S.N.C.    On March 26, 2013, DFPS filed a suit affecting the parent-child

relationship (the SAPCR), requesting temporary managing conservatorship of

S.N.C. and the termination of Father’s and Mother’s parental rights. See Tex.

Fam. Code Ann. § 262.101 (West 2014). The trial court entered an emergency

order naming DFPS as S.N.C.’s temporary managing conservator, appointing an

attorney ad litem for S.N.C., and setting a full adversary hearing.       See id. §

262.102 (West 2014).

      A full adversary hearing was held on April 5, 2013, at which DFPS, Father,

Mother, and S.N.C.’s attorney ad litem appeared. After the hearing, the trial

court entered the following findings:

      (1) there was a danger to the physical health or safety of the child
      which was caused by an act or failure to act of the persons entitled
      to possession and for the child to remain in the home is contrary to
      the welfare of the child; (2) the urgent need for protection required
      the immediate removal of the child and makes efforts to eliminate or
      prevent the child’s removal impossible or unreasonable; and (3)
      notwithstanding reasonable efforts to eliminate the need for the
      child’s removal and enable the child to return home, there is a
      substantial risk of a continuing danger if the child [is] returned home.

See id. § 262.201(b) (West 2014). The trial court also entered temporary orders

that again appointed DFPS as temporary managing conservator of S.N.C.,

limited Mother’s and Father’s access to S.N.C., and required DFPS to conduct a

home study of B.M., Father’s cousin.         See id. §§ 105.001, 262.201(c) (West



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2014).    The trial court later appointed B.M. to be the temporary possessory

conservator of S.N.C. See id. § 262.201(e).

      DFPS created a family-service plan for Mother and Father.        Under the

plan, Father was required to regularly attend Alcoholics Anonymous meetings,

“actively engage” in parenting classes, complete anger-management classes,

submit to random drug testing, attend visitation with S.N.C., maintain stable

housing and employment, attend individual counseling, and “cease all criminal

activity.” Father made “some progress” on many of these requirements but never

attended individual counseling. On September 19, 2013, Father was convicted

of driving while intoxicated and placed on community supervision for eighteen

months. On November 8, 2013, Father was convicted of assault causing bodily

injury and sentenced to thirty days’ confinement.2        Father ultimately was

incarcerated in Arkansas for a parole violation.

      On February 13, 2014, five days before the trial on the SAPCR was set to

begin, Father filed a motion for continuance requesting that the trial be delayed

so he could “continue working his services and to work towards return of his

child.” He further noted that he was incarcerated in Arkansas and would not be

able to be at the trial because he was “scheduled to have brain surgery in the

coming months in prison.” He also filed a motion for bench warrant requesting

that the trial court “issue a bench warrant or other legal remedy to permit . . .


      2
         This charge was the result of Father choking Mother on August 16, 2013.

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Father to be present for the final trial.” Father recognized in the motion, however,

that “a bench warrant could not be issued for an inmate out of state.” On the first

day of the trial, the trial court denied the motions and conducted a bench trial

without Father being present. Father was represented by counsel at the trial.

      The trial court heard evidence regarding Mother’s and Father’s neglectful

supervision of S.N.C. and their failure to fully comply with their service plans.

The trial court terminated Mother’s and Father’s parental rights on endangerment

grounds and in the child’s best interests. See Tex. Fam. Code Ann. §§ 161.001,

161.206 (West 2014). The trial court appointed DFPS as S.N.C.’s managing

conservator and B.M. as her possessory conservator. See id. § 161.207 (West

2014). Father appeals from the termination of his parental rights.3

      In a sole issue, Father argues that the trial court erred by denying his

motion for a bench warrant. He does not attack the sufficiency of the evidence to

support the termination order.     We review the trial court’s denial of Father’s

request for a bench warrant for an abuse of discretion, i.e., whether the trial court

acted in an arbitrary or unreasonable manner or acted without reference to any

guiding rules or principles. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003);

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

The right to appear in a civil proceeding is not absolute, and an inmate’s right to

personally appear must be weighed against the integrity of the correctional

      3
       Mother signed a relinquishment of her parental rights and does not
appeal.

                                         4
system.    Z.L.T., 124 S.W.3d at 165.        Several factors are relevant in the

determination of whether to grant an inmate’s request for a bench warrant: (1)

the cost and inconvenience of bringing the inmate to the court proceeding, (2) the

security risk to the court and the public; (3) whether the inmate’s claims are

substantial; (4) whether the court hearing can reasonably be delayed until the

inmate’s release; (5) whether the inmate can produce admissible, noncumulative

testimony that cannot be effectively presented by deposition, telephone, or other

means; (6) whether the hearing is before a judge or a jury; and (7) the inmate’s

probability of success on the merits. Id. at 165–66. The inmate has the sole

burden to justify the necessity of his presence by producing factual information

showing these factors. Id. at 166.

      In his motion for a bench warrant, Father recited the factors the trial court

was to consider and stated that his presence was necessary to “testify about the

steps . . . Father has taken to complete his service plan, his relationship with his

child[,] and the factors which contradict the State’s position that termination is in

the child’s best interest.” In arguing the motion, Father’s counsel stated

      [Father] has had contact with me since being incarcerated [in
      Arkansas] and has notified me that he absolutely wants to appear in
      court. He would like to participate in this proceeding. And,
      obviously, I am unable to secure his attendance here.

            As is the policy of this Court, I did notify the court coordinator
      that he was incarcerated, and she did notify me that because he is
      out of state she did not believe that the court had the ability to get
      him here.

DFPS did not oppose Father’s request.

                                         5
      The Court denied the motion for a bench warrant:

      Well, the Court makes every effort to have clients, parents present
      for these hearings, and that’s why the coordinator regularly sends
      out a notice to attorneys reminding them if their clients are
      incarcerated they must bench warrant. However, my power to
      bench warrant them is only in the State of Texas am I able to get
      them here, when they’re incarcerated within Texas. I don’t believe
      that I have the ability to get someone from Arkansas here.

      As stated above, Father was incarcerated in Arkansas at the time of trial

and he was represented by counsel during the trial.          The trial court heard

evidence about the successful steps Father took to comply with the service plan,

and the DFPS conservatorship supervisor admitted that she did not know if

S.N.C. had “bonded” with Father. However, the trial court also heard evidence of

the physically and mentally abusive relationship between Father and Mother and

that they repeatedly negligently supervised S.N.C. S.N.C. was doing well in her

placement with B.M., and B.M. planned to adopt S.N.C.

      We conclude Father failed to meet his burden to justify the necessity of his

presence. Many of the arguments raised in his motion for a bench warrant to

justify the necessity of his presence at trial were addressed at trial by his

counsel. Father did not ask to attend the trial by phone, deposition, or other

means, and any testimony regarding his partial compliance with the service plan

would have been cumulative of the admitted evidence. Additionally, Father failed

to provide factual information establishing why his interest in appearing

outweighed the impact on the correctional system. The trial court did not abuse

its discretion in denying Father’s motion for a bench warrant. See, e.g., id.; In re

                                         6
R.F. III, 423 S.W.3d 486, 490–91 (Tex. App.—San Antonio 2014, no pet.); In re

R.S., 252 S.W.3d 550, 553–54 (Tex. App.—Texarkana 2008, no pet.); In re

E.M.C., No. 11-08-00235-CV, 2009 WL 1653028, at *6 (Tex. App.—Eastland

June 11, 2009, no pet.).

      For these reasons, we overrule Father’s sole issue and affirm the trial

court’s judgment. See Tex. R. App. 43.2(a).




                                               /s/ Lee Gabriel

                                               LEE GABRIEL
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DAUPHINOT, J., concurs without opinion.

DELIVERED: July 10, 2014




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