Opinion filed June 11, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-08-00235-CV
                                         __________

                      IN THE INTEREST OF E.M.C., A CHILD


                              On Appeal from the 90th District Court

                                     Stephens County, Texas

                                  Trial Court Cause No. 29,383


                              MEMORANDUM OPINION

       This is an accelerated appeal from the trial court’s order terminating appellants’ parental
rights. We affirm.
                                        Background Facts
       Otis Collins and Sonya Lee Elliott Collins, appellants, are the parents of E.M.C. The
Department of Family and Protective Services filed an “Original Petition for Protection of a Child,
for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship” on
March 12, 2007. The Department filed the petition after a fire occurred on February 19, 2007, at a
trailer house occupied at the time by E.M.C., his paternal grandfather, and a 15-year-old babysitter.
E.M.C.’s grandfather and the babysitter died in the fire, and E.M.C. suffered severe burns and smoke
inhalation.
       The State Fire Marshall’s Office determined that the fire started accidentally by a heating
lamp placed in a doghouse located near the front door of the trailer house. The occupants of the
trailer house were unable to escape the fire because of the manner in which both doors to the trailer
were locked. The front door of the trailer was locked with a combination lock from the inside. The
occupants were unable to escape through the front door because of the lock and the proximity of the
door to the fire’s point of origin. The occupants were unable to escape through the back door
because it was locked with a padlock from the outside.
       Otis Collins was E.M.C.’s father. E.M.C. was in Otis’s care at the time of the fire because
E.M.C.’s mother, Sonya Lee Elliott Collins, was incarcerated in Florida. Otis resided at the trailer
house with E.M.C. and his father, Russell Max Collins. Otis told a CPS investigator that he kept the
trailer house locked in this manner because of burglaries. Donald Turk of the State Fire Marshall’s
Office testified that the manner in which the trailer house was locked created a dangerous situation.
Based upon the circumstances surrounding the fire, the Department concluded that Otis’s supervision
of E.M.C. was neglectful.
       After a bench trial, the court entered a written order terminating both Otis’s and Sonya’s
parental rights to the child. The trial court found by clear and convincing evidence in its written
order that Otis:
       (1)     knowingly placed or knowingly allowed the child to remain in conditions or
               surroundings which endanger the physical or emotional well-being of the
               child [TEX . FAM . CODE ANN . § 161.001(1)(D) (Vernon 2008)];

       (2)     engaged in conduct or knowingly placed the child with persons who engaged
               in conduct which endangers the physical or emotional well-being of the child
               [TEX . FAM . CODE ANN . § 161.001(1)(E) (Vernon 2008)]; and

       (3)     constructively abandoned the child who has been in the permanent or
               temporary managing conservatorship of the Department of Family and
               Protective Services or an authorized agency for not less than six months and:
               (1) the Department or authorized agency has made reasonable efforts to
               return the child to the father; (2) the father has not regularly visited or
               maintained significant contact with the child; and (3) the father has
               demonstrated an inability to provide the child with a safe environment [TEX .
               FAM . CODE ANN . § 161.001(1)(N) (Vernon 2008)].




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The trial court further found by clear and convincing evidence that Sonya:
        (1)     engaged in conduct or knowingly placed the child with persons who engaged
                in conduct which endangers the physical or emotional well-being of the child
                [TEX . FAM . CODE ANN . § 161.001(1)(E) (Vernon 2008)];

        (2)     constructively abandoned the child who has been in the permanent or
                temporary managing conservatorship of the Department of Family and
                Protective Services or an authorized agency for not less than six months and:
                (1) the Department or authorized agency has made reasonable efforts to
                return the child to the mother; (2) the mother has not regularly visited or
                maintained significant contact with the child; and (3) the mother has
                demonstrated an inability to provide the child with a safe environment [TEX .
                FAM . CODE ANN . § 161.001(1)(N) (Vernon 2008)]; and

        (3)     knowingly engaged in criminal conduct that has resulted in the mother’s
                conviction of an offense and confinement or imprisonment and inability to
                care for the child for not less than two years from the date of filing the
                petition [TEX . FAM . CODE ANN . § 161.001(1)(Q) (Vernon 2008)].

                                           Issues on Appeal
        Otis raises five issues on appeal. In his first issue, he challenges the sufficiency of the
evidence supporting the termination of his parental rights. He asserts in his second issue that the trial
court erred in allowing the trial to occur without him being physically present. In his third and fourth
issues, Otis contends that the trial court erred in admitting into evidence an audiotape of a telephone
call and a police report. Otis contends in his fifth issue that the trial court erred in failing to enter
requested findings of fact and conclusions of law. Sonya raises three issues. She challenges the
sufficiency of the evidence supporting the termination of her parental rights in her first issue. In her
second issue, Sonya asserts that the trial court erred in allowing the trial to occur without her being
physically present. In her third issue, she contends that the trial court erred in admitting out-of-state
judgments into evidence.
                                               Analysis
        At the outset, we must address the Department’s position that neither Otis nor Sonya filed
a statement of points on appeal as required under the provisions of TEX . FAM . CODE ANN . § 263.405
(Vernon 2008). The statute requires that a statement of points on which a party intends to appeal be
presented to the trial court within fifteen days after the signing of a final order terminating parental


                                                   3
rights. Section 263.405(b). The statute further provides that an appellate court is to consider only
those issues presented to the trial court in a timely filed statement of points. Section 263.405(i).
       Neither Otis nor Sonya filed a document entitled “statement of points” within fifteen days
after the trial court signed the final order terminating their parental rights. Otis, however, filed a
motion for new trial approximately eleven days after the trial court entered the termination order.
As stated in the motion, Otis sought a new trial based upon the following grounds:
               A new trial should be granted to Movant because the evidence is legally and
       factually insufficient to support this Court’s judgment. Specifically, the evidence is
       legally and factually insufficient to support this Court’s judgment based on the
       following: Respondent is incarcerated in a State facility in Florida and was unable
       to make a personal appearance. Appearance by telephone was not sufficient to allow
       proper presentation of his case, position or to allow the Court to properly consider
       Mr. Collins as a person, as to his appearance, demeanor and other relevant aspects
       relevant to such an important evaluation. The fact that Mr. Collins was incarcerated
       in Florida, and it was impossible for Court[-]appointed counsel to visit in person with
       Mr. Collins, the ability to properly prepare for trial and to have the assistance of
       Mr. Collins to fully and properly prepare for trial prevented a full and fair trial.

              Further, the evidence as it relates to Mr. Collins amounted to no more than
       rumor, speculation and innuendo, and the State clearly failed to meet the burden of
       proof by clear and convincing evidence to warrant termination of such a cherished
       right.

Section 263.405(b-1) of the statute provides that a statement of points may be combined with a
motion for new trial. Given the fact that Otis filed a motion for new trial that contained various
grounds for overturning the termination order within fifteen days of the termination order, we
conclude that Otis’s motion for new trial satisfied the requirement for a statement of points.
       Having determined that Otis’s motion for new trial sets out his statement of points to be
appealed, we may only consider the complaints presented in the motion as appellate issues. Otis
presented two points for review in the motion for new trial: (1) a complaint about the trial occurring
without him being personally present for it and (2) a general allegation that the evidence was legally
and factually insufficient to support the termination. We are permitted to consider Otis’s personal
appearance allegation set out in his second appellate issue because he presented this complaint in the
motion for new trial.



                                                  4
          With respect to Otis’s first appellate issue that challenges the sufficiency of the evidence
supporting termination, Section 263.405(i) provides that a claim that a judicial decision is contrary
to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to
preserve an issue for appeal. The evidentiary claims in Otis’s motion for new trial are insufficient
under Section 263.405(i) because they are general in nature. Accordingly, we are prohibited from
considering his first appellate issue. See In re K.C.B., 251 S.W.3d 514, 515 (Tex. 2008). Moreover,
even if we were able to consider Otis’s evidentiary challenges, there is an additional basis that
precludes him from overturning the termination order on evidentiary grounds. In his brief, Otis only
alleges that there was insufficient evidence to terminate his parental rights under subsections (D),
(E), and (O) of Section 161.001(1). As set forth above, the trial court found in its written order that
the termination of Otis’s parental rights was appropriate under subsections (D), (E), and (N) of
Section 161.001(1).1 Thus, Otis has not challenged the sufficiency of the evidence supporting
termination under subsection (N) of Section 161.001(1). “Only one predicate finding under
[S]ection 161.001(1) is necessary to support a judgment of termination.” In re A.V., 113 S.W.3d
355, 362 (Tex. 2003). Accordingly, the unchallenged finding that Otis committed acts prohibited
by Section 161.001(1)(N) is sufficient to support the trial court’s judgment. See Perez v. Tex. Dep’t
of Protective & Regulatory Servs., 148 S.W.3d 427, 434 (Tex. App.—El Paso 2004, no pet.);
In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Otis’s first issue
is overruled.
          We are also not permitted to consider Otis’s third, fourth, or fifth appellate issues because
he did not present these allegations in his motion for new trial. Accordingly, Otis’s third, fourth, and
fifth issues are overruled.




          1
             The discrepancy between the termination grounds enumerated in Otis’s brief and those set out in the termination order
apparently are the result of an inconsistency between the trial court’s oral pronouncement at the end of the termination hearing and
its subsequent written termination order. In the event of an inconsistency of this nature, the written judgment or order controls over
a trial court’s oral pronouncement of judgment. See, e.g., Ex parte Mathis, 822 S.W.2d 727, 732 (Tex. App.—Tyler 1991, no writ);
Gasperson v. Madill Nat’l Bank, 455 S.W.2d 381, 387 (Tex. Civ. App.—Fort Worth 1970, writ ref’d n.r.e.).

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         Sonya filed a document entitled “Judicial Acts to be Reviewed” six days prior to the entry
of the written termination order.2 She stated as follows in the document:
                COMES NOW, the Defendant/the Natural Mother, Sonya Lee Elliott
         Collins, pro se, hereby designates the following judicial acts to be reviewed:

                   1.        The State of Texas has failed in its duty to assure the “best
                             interest” of the child.

                   2.        The State of Texas is in error to terminate Natural Mother’s
                             Parental Rights being incarcerated. [sic]

                   3.        The State of Texas is in error to terminate Natural Mother’s
                             Parental Rights without any formal charges of neglect or
                             abuse to minor child by the mother.

By its express terms, this document sets out matters occurring in the trial court that Sonya sought
to be reviewed. We conclude that it satisfies the requirement for a statement of points on appeal.
The fact that Sonya filed the document prior to the entry of the written termination order does not
make the document untimely. TEX . R. APP . P. 27.2.
         Having determined that Sonya filed a statement of points to be appealed, we may only
consider the complaints presented in the statement as appellate issues. Sonya presented three matters
in her statement of points: (1) a challenge to the trial court’s “best interest” of the child finding;
(2) an apparent complaint about the trial occurring without her being personally present for it; and
(3) a complaint that her parental rights cannot be terminated if formal charges of neglect or abuse
have not been filed against her. The second complaint set out in Sonya’s statement of points is
consistent with the complaint presented in her second appellate issue. Accordingly, we are permitted
to consider Sonya’s second issue.
         With respect to Sonya’s first appellate issue that challenges the sufficiency of the evidence
supporting termination, her statement of points does not contain a sufficiency complaint.
Accordingly, we are prohibited from considering her first appellate issue. Moreover, even if we were
able to consider Sonya’s evidentiary challenges, she also does not challenge one of the termination


         2
            Approximately one month elapsed between the trial court’s oral pronouncement of judgment on August 7, 2008, and the
entry of the written termination order on September 8, 2008.

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grounds determined to exist by the trial court in the written termination order. Specifically, Sonya
has not challenged the sufficiency of the evidence supporting termination of her parental rights under
subsection (E) of Section 161.001(1). The unchallenged finding that Sonya committed acts
prohibited by Section 161.001(1)(E) is sufficient to support the trial court’s judgment terminating
her parental rights. See In re A.V., 113 S.W.3d at 362. Sonya’s first issue is overruled.
          We are also not permitted to consider Sonya’s third appellate issue because she did not
present this issue in her statement of points. Accordingly, Sonya’s third issue is overruled.
                                              Personal Appearance at Trial
          Otis and Sonya assert in their second issues that the trial court erred in permitting the case
to proceed to trial without them being physically present. Otis and Sonya were incarcerated in
Florida on the day of trial. In addition to being represented by appointed counsel at trial, Otis and
Sonya participated in the trial by telephone. At the beginning of trial, Otis’s trial counsel made the
following motion to the trial court:
                 Judge, I’d like to make a motion on behalf of Mr. Collins that he objects to
          the matter being heard today without him being able to be present in person and
          would ask that the matter be continued until he could be bench warranted or
          otherwise allowed to be present at trial.

Sonya’s trial counsel joined in this request on her behalf. The trial court overruled their requests.3
Sonya testified at trial by telephone. Otis declined to offer testimony at trial by invoking his Fifth
Amendment privilege against self-incrimination.
          Otis and Sonya argue on appeal that the case should not have proceeded to trial in their
absence because the case involved the termination of their parental rights. They contend that the trial
court should have granted their requested continuance until such time as they could personally appear
for trial. The denial of a continuance motion is reviewed under an abuse of discretion standard.
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A trial court abuses its
discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985).

          3
           The trial court stated as follows in announcing the ruling: “Well, I’d prefer that they be here, but we’re doing the best we
can under the circumstances. Motions are overruled.”

                                                                  7
          From a procedural standpoint, Otis and Sonya did not file written motions for continuance.
An oral motion for continuance does not comply with the requirements of the applicable rule of civil
procedure. TEX . R. CIV . P. 251; see In re Estate of Alexander, 250 S.W.3d 461, 463 (Tex. App.—
Waco 2008, pet. denied). If a continuance motion does not comply with Rule 251, we presume that
the trial court did not abuse its discretion in denying the motion. 250 S.W.3d at 463.
          As incarcerated civil litigants, Otis’s and Sonya’s request to be physically present at trial
involves many of the same issues that are involved in the consideration of a request for a bench
warrant.4 Litigants cannot be denied access to the courts simply because they are inmates.
In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). However, an inmate does not have an absolute right
to appear in person in every court proceeding. Id. The inmate’s right of access to the courts must
be weighed against the protection of our correctional system’s integrity. Id. Trial courts are required
to consider several factors when deciding whether to grant an inmate’s request for a bench warrant,
including: (1) the cost and inconvenience of transporting the prisoner to the courtroom; (2) the
security risk the prisoner presents to the court and public; (3) whether the prisoner’s claims are
substantial; (4) whether the matter’s resolution can reasonably be delayed until the prisoner’s release;
(5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be
effectively presented by deposition, telephone, or some other means; (6) whether the prisoner’s
presence is important in judging his demeanor and credibility; (7) whether the trial is to the court or
a jury; and (8) the prisoner’s probability of success on the merits. Id. at 165-66.
          A litigant requesting a bench warrant bears the burden of establishing his right to relief, and
he must provide factual information demonstrating his need to appear. Id. at 166. Other than
presenting an oral request for the trial court to continue the trial, Otis and Sonya did not present any
evidence that their participation at trial by telephone would be insufficient for presenting their
defenses to the requested termination. They also did not present any information to remove the
uncertainties necessarily associated with speculating when individuals incarcerated in another state
might be available for trial. In response to their requests, the Department pointed out to the trial



          4
          Otis and Sonya acknowledge that the trial court lacked authority to issue a bench warrant requiring their attendance at trial
because they were incarcerated in another state. Had a bench warrant been a viable option, the trial court’s ruling on the request
would also be reviewed for abuse of discretion. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).

                                                                  8
court that the deadline for completing the termination proceeding would soon be reached. TEX . FAM .
CODE ANN . § 263.401(a), (b) (Vernon 2008). The trial court did not abuse its discretion in denying
their motions for continuance under these circumstances. Otis’s and Sonya’s second issues are
overruled.
                                        This Court’s Ruling
       The order of the trial court is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE


June 11, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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