Affirmed in Part; Reversed and Remanded in Part; and Majority Opinion and
Concurring and Dissenting Opinion filed January 31, 2019.




                                      In The

                      Fourteenth Court of Appeals

                               NO. 14-18-00691-CV

             IN THE INTEREST OF L.N.C & K.N.M., CHILDREN


                     On Appeal from the 314th District Court
                              Harris County, Texas
                       Trial Court Cause No. 2017-03776J

                          MAJORITY           OPINION


      This appeal arises from the termination of the parental rights of D.D.C.
(“Father”) to his daughter, L.N.C. (“Laura”). 1 The parental rights of Laura’s mother
(“Mother”) to Laura and her brother, K.N.M. (“Kevin”), and the parental rights of
Kevin’s father, K.J.M. (“James”), also were terminated. Mother and James are not
parties to this appeal.


      1
         We use pseudonyms to refer to the parties involved. See Tex. Fam. Code Ann.
§ 109.002(d); Tex. R. App. P. 9.8.
      Father was incarcerated at the time of trial on June 19, 2018. On appeal, Father
challenges the judgment terminating his parental rights to Laura in four issues:
(1) he was denied due process of law by the trial court’s denial of his request for a
continuance, when he was timely bench-warranted to appear at trial; (2) the evidence
was factually insufficient to support the predicate finding under Tex. Fam. Code
§ 161.001(b)(1)(E); (3) the evidence was legally and factually insufficient to support
the predicate finding under subsection Tex. Fam. Code § 161.001(b)(1)(N); and (4)
the evidence was legally and factually insufficient to support the finding that
termination was in Laura’s best interest under Tex. Fam. Code § 161.001(b)(2). For
reasons stated below, we conclude Father’s due process rights were violated, reverse
the trial court’s judgment, and remand for a new trial. Because a finding of legal
insufficiency would result in greater relief, we must first address Father’s claims of
legal insufficiency. See In Interest of J.E.M.M, 532 S.W.3d 874, 891–92 (Tex.
App.—Houston [14th Dist.] 2017, no pet.) (rendering judgment denying the
Department’s request to terminate Mother’s parental rights to her children); see also
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (holding rendition of judgment in favor
of parent generally required if there is legally insufficient evidence).

      Because Father does not claim the evidence is legally insufficient as to
endangerment, he would not be afforded greater relief by a determination that there
is   no   evidence     of   constructive   abandonment.     See   Tex.     Fam.   Code
§§ 161.001(b)(1)(E) and (N), respectively. We therefore do not reach the merits of
issues two or three.

      We do, however, consider that part of Father’s fourth issue contending there
is legally insufficient evidence to support the best-interest finding because a
determination in Father’s favor would afford greater relief. See Tex. Fam. Code
§ 161.001(b)(2).

                                           2
                                 I.     BEST INTEREST

      Termination must be in the child’s best interest. Tex. Fam. Code
§ 161.001(b)(2). There is a strong presumption that the best interest of a child is
served by keeping the child with the child’s parent. Id. § 153.131(b); see alsoIn re
R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re U.P., 105 S.W.3d 222,
230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The Department of Family
and Protective Services (the “Department”) carries the burden of rebutting that
presumption. U.P., 105 S.W.3d at 230. Prompt, permanent placement of the child in
a safe environment is also presumed to be in the child’s best interest. See Tex. Fam.
Code § 263.307(a). Proof of acts or omissions under section 161.001(b)(1) are
probative of the issue of the child’s best interest. See In re S.R., 452 S.W.3d 351,
366 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

A.    Burden of Proof and Standard of Review

      Only one predicate finding under Tex. Fam. Code § 161.001(b)(1), along with
the best-interest determination, is necessary to support termination. In re A.V., 113
S.W.3d 355, 362 (Tex. 2003). In a termination case, the State seeks not just the
limitation of parental rights, but to erase them permanently—to divest the parent and
child of all legal rights, privileges, duties, and powers normally existing between a
parent and child, except the child’s right to inherit. Tex. Fam. Code § 161.206(b);
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State
seeks to sever permanently the relationship between a parent and a child, it must first
observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex.
2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796,
802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

                                          3
      Parental rights can be terminated if clear and convincing evidence shows
(1) the parent committed an act described in Tex. Fam. Code § 161.001(b)(1), and
(2) termination is in the best interest of the child. Tex. Fam. Code § 161.001(b)(2).
Clear and convincing evidence is that measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established. Tex. Fam. Code § 101.007. This heightened
burden of proof results in heightened standards of review for sufficiency of the
evidence.

      When reviewing the legal sufficiency of the evidence, we consider all the
evidence in the light most favorable to the finding to determine whether a reasonable
fact finder could have formed a firm belief or conviction that its finding was true. In
re J.F.C., 96 S.W.3d at 266. We assume the fact finder resolved disputed facts in
favor of its finding, if a reasonable fact finder could do so, and disregard all evidence
a reasonable fact finder could disbelieve. Id.

      The fact finder assesses the credibility and demeanor of the witnesses. In re
A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 209 S.W.3d 105, 109 (Tex.
2006) (per curiam). We may not second-guess the fact finder’s resolution of a factual
dispute by relying on disputed evidence or evidence the fact finder could easily have
rejected as not credible. In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).

B.    Relevant Evidence

      Father claims the evidence is legally insufficient to support the trial court’s
finding that termination of his parental rights was in Laura’s best interest. The
Department responds that the best-interest finding is supported by the evidence.

      Laura was four years old at the time of trial; Kevin was two and a half. The
children came into care due to neglectful supervision by Mother and James. At that


                                           4
time, Father was incarcerated for assaulting Mother when she was five and a half
months pregnant. Pursuant to a plea bargain, Father pled guilty to second-degree
assault and was sentenced to two years in prison in 2017. The Department’s
caseworker, Kirby Clark, testified Father would complete his sentence on January 6,
2019.

        The Department introduced additional convictions into evidence. In 2016,
Father was convicted of assault of a family member, a class A misdemeanor, and
sentenced to twenty days in county jail. In 2012, Father was adjudicated guilty of
third-degree possession of a prohibited weapon and sentenced to two years in prison.
In 2010, Father was convicted of trespass and possession of marijuana, both class B
misdemeanors and sentenced to thirty days and ten days, respectively, in county jail.
In 2009, Father was convicted of evading arrest, a class B misdemeanor, and theft,
a class A misdemeanor, and sentenced to sixty days in county jail in each case. In
2008, Father was convicted of assault, a class A misdemeanor, and sentenced to
ninety days in county jail. In 2007, Father was convicted of unlawfully carrying a
weapon, a class A misdemeanor, and criminal trespass, a class B misdemeanor, and
sentenced to ten days in county jail in each case.

        Clark agreed that Father’s pattern of incarceration posed a danger to Laura. A
family service plan (“FSP”), tailored to what Father could do in prison, was
implemented. Pursuant to the FSP, Clark asked Father to contact Clark each month,
inform her what services he was able to complete while incarcerated, provide the
names of family members that he would like to have Laura placed with, sign a
release of information, and maintain contact with Laura by mail. According to Clark,
Father did all of these things. Clark agreed that Father had completed everything
asked of him under the FSP. Although not requested, Father had acquired a general
education diploma (“GED”). Clark agreed that Father showed a deep interest in

                                           5
Laura, loves her, and has written her on numerous occasions, including on her
birthday and at Christmas. Father has not sent any gifts or money for Laura’s benefit.
Clark acknowledged that Father was not the reason Laura came into care. Clark also
testified that Father has not demonstrated any ability to parent Laura. She agreed
that Father’s incarceration was part of the reason the children came into care.

      Clark stated that during this case Father communicated with Clark by letter,
and requested Laura be placed with his parents. Clark agreed the paternal
grandparents are available for support and are willing to provide a stable
environment and financial assistance. While Father was in prison, his parents
attended court hearings to support Laura. The paternal grandmother told Clark that
they have a relationship with Laura and a bond with her. The paternal grandparents
are willing and able to take Laura into their care and have a stable home
environment. Their home study was approved. A criminal background check of the
paternal grandparents was negative, and they have no history with the Department.
Clark agreed that “everything has been approved” for Laura to be placed with the
paternal grandparents.

      Clark also testified that Kevin, James’ son and Laura’s half-brother, have been
together since Kevin’s birth and have a sibling bond. When Clark contacted the
paternal grandmother, she only wanted Laura placed with her. Father has not
provided an alternative relative for placement. According to Clark, a decision had to
be made whether to separate Laura and Kevin when the paternal grandparents were
approved. Clark testified it would be detrimental to separate Laura and Kevin
because they were “really attached to each other.” Clark testified Laura wants to stay
with Kevin. Clark and the Child Advocate, Renee LeBas, agreed that the bond
between Laura and Kevin was more significant and the children would be kept
together.

                                          6
       The children were then placed in a foster home in February 2018. Clark
testified the foster home was intended to be permanent. The children were bonded
with the foster parents. The foster mother testified the children have been with her
for four and a half months. Initially, Laura was a little aggressive. Laura has
completed play therapy and now has speech therapy. The foster mother testified that
she has not received any support through the Department from the parents. Clark
testified to her belief that termination of the parental rights of all three parents was
in the children’s best interest.

       After the children were placed in foster care, a relative of Kevin, K.M.
(“Karen”), came forward. Karen is James’ second cousin and lives in Delaware with
her husband and a child of their own. Karen and her husband have gainful
employment. Clark testified the Department was now considering Karen as a
placement for the children. Karen’s preliminary home study was approved. Karen
had never met the children and had no prior relationship with them. Clark testified
the Department wanted to wait until the home study was complete and her supervisor
had reviewed it before making any recommendations. The Department also wanted
to observe visitation between Karen and the children.

       LeBas testified Laura and Kevin were well bonded and Laura takes care of
Kevin. She recommended the children stay in their current placement during Karen’s
evaluation. LeBas agreed that Father’s criminal history and current incarceration
pose a concern and that he is a danger to the children. LeBas stated it was a concern
that Father assaulted a pregnant woman. LeBas testified it was Child Advocate’s
position that parental rights be terminated and that termination was in the children’s
best interest.




                                           7
C.       Analysis

         The considerations the trier of fact may use to determine the best interest of
the children, known as the Holley factors, include: the desires of the child; the
present and future physical and emotional needs of the child; the present and future
emotional and physical danger to the child; the parental abilities of the persons
seeking custody; the programs available to assist those persons seeking custody in
promoting the best interest of the child; the plans for the child by the individuals or
agency seeking custody; the stability of the home or proposed placement; acts or
omissions of the parent that may indicate the existing parent-child relationship is not
appropriate; and any excuse for the parents’ acts or omissions. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976); In re U.P., 105 S.W.3d at 230; see also Tex. Fam.
Code § 263.307(b) (listing factors to consider in evaluating parents’ willingness and
ability to provide the children with a safe environment). This list of factors is not
exhaustive and a best-interest finding does not require proof of any unique set of
factors, nor does it limit proof to any specific factors. See Holley, 544 S.W.2d at
371–72. Evidence is not required on all the factors to support a finding that
termination is in the child’s best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). A trial court may infer that past
endangering conduct may occur again in the future if the child is returned to the
parent. In re J.B., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no
pet.).

         1. Desires of the child.

         Laura has articulated her wish to remain with her brother, Kevin. There is no
evidence as to her desires regarding her parents. Testimony indicates that Laura has
been well-cared for by her foster mother and bonded with her. The trial court was



                                            8
entitled to find that this factor weighed in favor of terminating Father’s parental
rights.

          2. Present and future physical and emotional needs of the child.

          The record reflects that Laura had neither permanency nor security before
coming into care. In the previous ten years, Father was convicted nine times. During
Laura’s lifetime, Father was twice incarcerated for family violence. The last offense
was committed before Laura turned three. Accordingly, Father’s acts resulted in his
absence from Laura’s life and his failure to provide for her physical and emotional
needs. The trial court was entitled to find that this factor weighed in favor of
terminating Father’s parental rights.

          3. Present and future emotional and physical danger to the child.

          Father’s domestic abuse of Laura’s mother when she was two years old
endangered Laura emotionally and presents a risk of physical danger. The trial court
was entitled to find that this factor weighed in favor of terminating Father’s parental
rights.

          4. Parental abilities of the person(s) seeking custody.

          With the assistance of his parents, Father is able to provide a safe and secure
home for Laura. Father completed his FSP plan and obtained a GED. The record is
silent as to whether Father ever took care of Laura. However, Father twice
committed domestic abuse before Laura was three years old and was imprisoned for
both convictions. The trial court was entitled to find that this factor weighed in favor
of terminating Father’s parental rights.




                                             9
          5. Available assistance programs.

          The record reflects Father completed his FSP and acquired his GED while
incarcerated. Accordingly, this factor weighed against terminating Father’s parental
rights.

          6. Plans for the child by those individuals or by the agency seeking custody.

          Father requested Laura be placed with her paternal grandparents. However,
the Department did not consider that placement a viable placement because
separating Laura from Kevin would not be in her best interest. Yet the Department
did not have a permanent plan for Laura at the time of trial. The foster placement,
which was originally intended to be permanent, was in limbo while the Department
considered whether both children should be placed with Karen. The trial court was
entitled to find that this factor weighed neither for nor against terminating Father’s
parental rights.

          7. Stability of home or proposed placement.

          Father’s proposed placement of Laura with the paternal grandparents provided
a stable and secure home. The home study of the paternal grandparents was approved
and they have no criminal history or history with the Department. Although the
foster home is stable, Laura has been there four months and the Department did not
recommend she be placed there permanently. Accordingly, this factor weighed
against terminating Father’s parental rights.

          8. Acts or omissions of the parent.

          Father has a ten-year criminal history. Although several of the offenses are
misdemeanors, the two most recent charges of domestic abuse are evidence of
endangerment to Laura. The trial court was entitled to find that this factor weighed
in favor of terminating Father’s parental rights.

                                              10
          9. Any excuse for the acts or omissions of the parent.

          Father did not appear at trial or participate by any other means. The record is
therefore silent as to any excuse for his acts or omissions. The trial court was entitled
to find that this factor weighed neither for nor against terminating Father’s parental
rights.

          Applying the applicable Holley factors to the evidence, we conclude that
legally sufficient evidence supports the trial court’s finding that termination of
Father’s rights is in Laura’s best interest. See In re U.P., 105 S.W.3d at 230–32. We
overrule Father’s fourth issue, in part.

          As noted above, it is unnecessary to address Father’s claims of factual
insufficiency as it would afford no greater relief. We now turn to Father’s claim that
his right to due process was violated.

                                       II.     DUE PROCESS

          The record reflects a bench warrant was signed by the trial court on March 29,
2018, to deliver Father for trial on June 19, 2018, at 9:00 a.m. When trial commenced
on June 19, Father’s counsel orally requested a continuance, stating, “Judge, before
we begin, I’d like to move for a continuance so my client has an opportunity to be
here. I properly bench warrant [sic] him but for some reason, he wasn’t able to be
here today. I would like to give him the opportunity to be present at trial.”2 The trial
court denied the continuance.3 On appeal, Father claims he was not afforded the

          2
        The record reflects that on July 5, 2018, the trial court directed Sheriff Ed Gonzales of
Harris County to return Father to his unit of confinement.
          3
          James’ counsel also requested a continuance, stating he had been incarcerated and was
released in April but counsel did not know his current whereabouts. That request also was denied.
The record reflects that James appeared after the close of evidence and counsel asked to reopen
“for the purposes of offering irrevocable affidavit of voluntary relinquishment of parental rights to
the Department of Family and Protective services that my client has just signed.” The trial court
refused to accept the affidavit but offered for counsel to put on evidence. Counsel rested.

                                                 11
opportunity to participate at trial in a meaningful manner in violation of his right to
due process under the United States Constitution and the Texas Constitution. See
U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § 19.4

       We first address the Department’s response questioning whether Father’s oral
motion, without supporting facts or argument, established his presence at trial was
necessary to preserve his right to due process. Citing our decision in In re T.D.N.,
No. 14-07-00387-CV, 2008 WL 2574055 (Tex. App.—Houston [14th Dist.] June
26, 2008, no pet.) (mem. op.), the Department points out that no written motion for
continuance was filed in accordance with the requisites of Rule 251. See Tex. R. Civ.
P. 251. For the reasons stated below, T.D.N. is distinguishable from the case at bar.
2008 WL 2574055, at *1.

       Generally, a party complaining on appeal must have obtained an adverse
ruling on the appellate complaint in the trial court or objected to any alleged refusal
to rule. Tex. R. App. P. 33.1(a). In T.D.N., the trial court did not rule on the movant’s
oral motions for continuance and no objection was made to the failure to rule. 2008
WL 2574055, at *1. We held the alleged error was not preserved. Id. Here, the record
shows the trial court ruled on the oral motion. See Tex. R. App. P. 33.1(a).5

       We also stated that because appellant did not comply with Rule 251, the trial
court did not abuse its’ discretion by failing to grant a continuance. T.D.N., 2008
WL2574055, at *1. In support of that statement, we cited In the Interest of B.S.W.,


       4
        For claims of procedural due process, as here, the Supreme Court of Texas has found no
meaningful distinction between Texas’ due-course-of-law protection and the federal constitution’s
due process guarantee. Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).
       5
         Because we found the error was not preserved in accordance with Rule 33.1(a), it was not
reversible regardless of whether the movant complied with Rule 251. See USAA Texas Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 505 (Tex. 2018).


                                               12
No. 14-04-00496-CV, 2004 WL 2964015, at *4 (Tex. App.—Houston [14th Dist.]
Dec. 23, 2004, no pet.) (mem. op.), and Ohlhausen v. Thompson, 704 S.W.2d 434,
436-37 (Tex. App.—Houston [14th Dist.] 1986, no writ). In B.S.W., 2004 WL
2964015, at *4, we cited Ohlhausen, 704 S.W.2d at 436, along with Villegas v.
Carter, 711 S.W.2d 624, 626 (Tex. 1986), and In re E.L.T., 93 S.W.3d 372, 375
(Tex. App.—Houston [14th Dist.] 2002, no pet.), for the same proposition. But
Ohlhausen stated, “[w]here the terms and provisions of Rule 251 have not been
complied with, it will be presumed that the trial court had not abused its discretion
in denying continuance.” 704 S.W.2d at 436 (emphasis added). Likewise, in E.L.T.,
we stated that “[i]f a motion for continuance is not made in writing and verified, it
will be presumed that the trial court did not abuse its discretion in denying the
motion.” 93 S.W.3d at 375 (emphasis added) (citing Ohlhausen, 704 S.W.2d at 436).
Thus, it is presumed, but not a foregone conclusion, that the trial court did not abuse
its’ discretion in denying a motion for continuance when a movant fails to comply
with Rule 251. Villegas, 711 S.W.2d at 626 (emphasis added).

       In this case, counsel indicated in her motion that she did not know why Father
was not present since he had been properly bench warranted.6 The children’s
attorney ad litem echoed counsel’s lack of information when, after the close of
evidence, he stated to the trial court: “Judge, I believe there is an issue with the
outstanding -- with respect to his lack of presence here today. I believe it would be
appropriate, as he was bench warranted here, to have -- allow him to be present. I’m
not sure what happened with the bench warrant.” Father could not appear at trial
absent compliance with the bench warrant by the Harris County Sheriff’s Office.
Father’s non-appearance was clearly unanticipated, and counsel did not have


       6
          The fact that an order issued on July 5, 2018 to return Father to his unit of confinement
reflects the bench warrant was partially carried out.

                                                13
personal knowledge of the possible reason for Father’s failure to appear. Given these
facts, and the fundamental constitutional right at issue, we decline to apply the
presumption that arises from failure to comply with Rule 251. Cf. In re A.A., No. 05-
07-01698-CV, 2008 WL 2514346, at *3 (Tex. App.—Dallas June 25, 2008, no pet.)
(mem. op.) (deciding whether the failure to file a written motion for continuance
supported by affidavit was ineffective assistance). We therefore will consider, on the
merits, the question of whether the trial court abused its discretion by denying the
continuance.

      We first turn to the Department’s argument that Father failed to meet his
burden of showing sufficient cause because the motion was made without argument,
or reference to any facts establishing Father’s presence was necessary to preserve
his constitutional rights, or that his interest in being present outweighed the impact
on the correctional system of obtaining his presence. Thus, the Department contends
Father failed to demonstrate the trial court abused its discretion by denying the
continuance.

      The Department’s argument presumes that it is appropriate for this court to
reconsider whether the bench warrant should have been granted. Trial courts
consider a variety of factors when deciding whether to grant an inmate’s request for
a bench warrant. In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). These factors
include 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; 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

                                         14
the prisoner’s probability of success on the merits. Id. Because a prisoner has no
absolute right to be present in a civil action, the prisoner requesting a bench warrant
must justify the need for his presence. Id.

       The trial court presumably considered the above factors and determined
Father had justified the need for his presence.7 Accordingly, the cases relied upon
by the Department are distinguishable from the case at bar. In both In re Z.L.T., 124
S.W.3d at 166, and In re C.P.V.Y., 315 S.W.3d 260, 269–70 (Tex. App.—Beaumont
2010, no pet.), the incarcerated father had not been granted a bench warrant. Because
the trial court in this case granted a bench warrant, counsel had every reason to
expect the Harris County Sheriff’s Office to deliver Father to court for trial as
ordered.8

       We now proceed to consider whether Father’s due process rights were
violated by the trial court’s denial of a continuance. In analyzing a claim of
deprivation of procedural due process, we determine: (1) whether the complaining
party has a liberty or property interest entitled to protection; and (2) if so, what
process is due. In re D.W., 498 S.W.3d 100, 112 (Tex. App.—Houston [1st Dist.]
2016, no pet.). (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct.
1148, 1153–54, 71 L.Ed.2d 265 (1982); Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d
926, 929 (Tex. 1995)). It is well-settled that in a proceeding to terminate parental
rights a prison inmate has an interest that is entitled to protection. In re D.W., 498
S.W.3d at 112, (citing Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198,
82 L.Ed.2d 393 (1984); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388,

       7
          The fact that an order issued on July 5, 2018 to return Father to his unit of confinement
reflects the bench warrant was partially carried out.
       8
         Thus, there was no reason for counsel to seek Father’s participation by other means, such
as an affidavit or telephonic conference and we reject the Department’s attempt to distinguish In
re D.W., 498 S.W.3d at 116, on that basis.

                                                15
1394–95, 71 L.Ed.2d 599 (1982); In re R.M.T., 352 S.W.3d 12, 17 (Tex. App.—
Texarkana 2011, no pet.); In re T.L.B., No. 07–07–0349–CV, 2008 WL 5245905, at
*2 (Tex. App.—Amarillo Dec. 17, 2008, no pet.) (mem. op.); and Martinez v. Tex.
Dep’t of Protective & Regulatory Servs., 116 S.W.3d 266, 271 (Tex. App.—El Paso
2003, pet. denied)). In such a proceeding, due process requires, at a minimum, notice
and an opportunity to be heard at a meaningful time and in a meaningful manner. Id.
(citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18
(1976)). We determine what process is due based upon the practical requirements of
the circumstances. Id. (citing Mathews, 424 U.S. at 334, 96 S.Ct. at 902). Three
factors are weighed: (1) the private interest affected by the proceeding or official
action; (2) the countervailing governmental interest supporting use of the challenged
proceeding; and (3) the risk of an erroneous deprivation of the private interest due
to the procedures used. Id. (citing In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003);
Eldridge, 424 U.S. at 335, 96 S.Ct. at 903)); see also City of Los Angeles v. David,
538 U.S. 715, 717, 123 S.Ct. 1895, 1896, 155 L.Ed.2d 946 (2003).

      The private interests of both the parent and the child in the accuracy and
justice of the decision to permanently end their relationship, weighs heavily in favor
of providing Father with an opportunity to participate in the proceedings and
communicate with his attorney during trial. See D.W., 498 S.W.3d at 113 (citing In
re M.S., 115 S.W.3d 534, 547–48 (Tex. 2003)). Accordingly, the first factor weighs
in favor of finding that under the circumstances in this case, Father did not receive
due process.

      The Department’s interest is to protect the best interest of the child and is best
served by “an accurate determination” as to whether Father “can and will provide a
normal home.” Id. quoting M.S., 115 S.W.3d at 548–49; see also B.L.D., 113 S.W.3d
at 353. Additionally, to avoid negative psychological effects on a child left “in

                                          16
limbo,” the Department has an interest in an accelerated timetable and final decision.
Id.; see also M.S., 115 S.W.3d at 54849; B.L.D., 113 S.W.3d at 353. The expeditious
determination of termination cases serves the child’s strong interest in a final
decision on termination so that adoption to a stable home or return to the parents is
not unduly prolonged. Id.; see also Tex. Fam. Code § 263.401(a) (providing a
deadline for parental termination suits). However, in this case the record does not
reflect that granting the motion for continuance would have greatly harmed Laura’s
or the Department’s interest.

      Trial was held on June 19, 2018 and the anniversary of the date the petition
was filed was not until July 17, 2018. The case was not at risk for dismissal.

      Nor does the record show that granting the motion for continuance would have
created a conflict between Laura’s need for permanency and stability and Father’s
right to reasonable access to the court. At the time of trial, the Department had not
decided upon a permanent placement for Laura.

      The record also does not demonstrate Laura’s best interest was promoted by
denying the motion for continuance since Laura’s placement at the time of trial was
stable and satisfactory.

      Given the novel facts here, that Father was bench warranted and in the
sheriff’s custody but not brought to court, the Department’s interest in resolving the
case in a single day cannot be given more weight than the interests of Laura and
Father in a just and accurate result. See M.S., 115 S.W.3d at 548; see also In re
T.L.B., No. 07–07–0349–CV, 2008 WL 5245905, at *3 (Tex. App.—Amarillo Dec.
17, 2008, no pet.) (mem. op.) (“[C]oncerns for efficiency and economy are inferior
to the private interest at stake as well as the risk of an erroneous termination
decision.”). Therefore, the second factor also weighs in favor of finding that Father
did not receive due process.
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      The Department suggests the risk of erroneously depriving Laura and Father
of their parent-child relationship is not adequate to find the trial court abused its
discretion because Father, through his counsel, had the opportunity to present
evidence and cross examine witnesses. The right to cross examination is vital to a
fair trial and it includes the right of rebuttal. Id. (citing Richardson v. City of
Pasadena, 513 S.W.2d 1, 4 (Tex. 1974)). Father’s absence at trial meant that his
counsel was unable to communicate with him regarding strategy for cross-examining
witnesses or rebutting the Department’s evidence. Id. Accordingly, the third factor
also weighs in favor of finding Father did not receive due process.

      Considering all the above factors, we hold that Father was denied a
meaningful opportunity to participate in the proceedings in violation of his right to
procedural due process.

      To obtain reversal of a judgment based on trial court error, an appellant must
show that the error probably caused rendition of an improper judgment or probably
prevented the appellant from properly presenting the case to the appellate court. Tex.
R. App. P. 44.1(a). All litigants forced to settle disputes through the judicial process
have a constitutional right to be heard at a meaningful time in a meaningful manner.
Larson v. Giesenschlag, 368 S.W.3d 792, 796–97 (Tex. App.—Austin 2012, no
pet.). A prisoner’s right of access “entails not so much his personal presence as his
opportunity to present evidence or contradict the evidence of the opposing
party.” Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.—Houston [1st Dist.] 2000,
no pet.), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex.
2003). If the trial court determines that the inmate’s personal appearance is not
warranted, then the trial court should allow the inmate to proceed by affidavit,
deposition, telephone, or other effective means. In re R.C.R., 230 S.W.3d 423, 426
(Tex. App.—Fort Worth 2007, no pet.); Boulden v. Boulden, 133 S.W.3d 884, 886–

                                          18
87 (Tex. App.—Dallas 2004, no pet.); see also Parker v. Parker, No. 14-16-00098-
CV, 2017 WL 924529, at *2 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no
pet.)

        In determining whether the denial of procedural due process to Father was
harmful error, this case varies from those cases where the alleged denial of an
inmate’s due process rights in a parental-termination proceeding is based upon the
trial court’s refusal to issue a bench warrant. Here, the trial court determined Father’s
personal appearance was necessary and issued a bench warrant. Thus, Father had no
reason to seek participation by other means. When Father was not delivered to trial,
the trial court refused the request for a continuance. The trial court did not allow
Father to proceed by affidavit, deposition, telephone, or any other means. As a result,
Father was foreclosed from presenting evidence to counter that offered by the
Department. Thus, we hold that the denial of procedural due process in this case
“probably prevented [Father] from properly presenting the case” on appeal. See Tex.
R. App. P. 44.1(a)(2); see also T.L.B., 2008 WL 5245905, at *5 (holding, in
termination-of-parental-rights case, that trial court’s denial of father’s meaningful
participation in trial violated his due-process rights and probably prevented him from
properly presenting case on appeal).

        The underlying suit in this case was brought to terminate the parental rights
of Father, an incarcerated individual. The method of allowing his meaningful
participation at trial was secured by the request and granting of a bench warrant.
When Father was not brought to trial in accordance with that warrant, he was
precluded from meaningful participation in the trial that resulted in the termination
of his parental rights. In this case, the denial of procedural due process probably
prevented Father from properly presenting his case on appeal. Under these particular



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circumstances, we conclude the trial court abused its’ discretion by failing to grant
the requested continuance. Father’s first issue is sustained.

                                   III.    CONCLUSION

      Having addressed every issue raised that it is necessary to final disposition of
the appeal, we reverse the trial court’s judgment terminating the parental rights of
Father to Laura and remand that issue to the trial court for further proceedings. See
Tex. R. App. P. 47.1. In all other respects, the judgment of the trial court is affirmed.




                                          /s/    Margaret “Meg” Poissant
                                                 Justice



Panel consists of Justices Christopher, Hassan and Poissant. (Christopher, J.,
dissenting).




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