                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00004-CV


IN THE INTEREST OF B.S. AND
B.S., CHILDREN

                                      ----------

          FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 231-533770-13

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      This is an appeal from a private termination of parental rights proceeding

filed by the children’s maternal grandmother and her husband. Appellant, the

children’s father, is presumed indigent; he was represented by appointed counsel

at trial, but is pro se on appeal. See Tex. Fam. Code Ann. § 107.021(a) (West

2014); Tex. R. App. P. 20.1(a)(3); In re D.L.S., No. 02-10-00366-CV, 2011 WL

2989830, at *2 (Tex. App.––Fort Worth July 21, 2011, no pet.) (mem. op.). In

three issues, he challenges (1) the sufficiency of the evidence to support the trial

      1
       See Tex. R. App. P. 47.4.
court’s best interest finding, (2) the trial court’s refusal to reschedule the trial or

make alternate arrangements so that appellant could better hear the

proceedings, which he attended via telephone, and (3) the effectiveness of his

appointed trial counsel. We affirm.

                                    Background

      Appellant’s youngest child, now five, has lived with appellees since

December 2010 when she was thirteen months old; his oldest child, now six, has

lived with them since April 2011 when he was two years old. Appellant lived at

appellees’ house with the children and their mother for about a month in 2011,

after moving to Texas from Wisconsin with the couple’s older child.               The

children’s mother passed away in 2012. Appellant has been incarcerated since

July 2011 for the offense of indecency with an unrelated child and was still

incarcerated at the time of trial. His projected release date is in May 2018. The

trial court appointed counsel for appellant at trial and allowed him to appear by

telephone.

                                     Sufficiency

      In his first issue, appellant contends that the trial court’s best-interest

decision was based upon false evidence given by appellees. He points to his

own testimony contradicting appellees’ assertions that neither he nor his family

had provided financial support for the children during his incarceration and that

he had engaged in family violence against the children’s mother. However, the

factfinder––here, the trial judge––is the sole judge of the credibility of witnesses


                                          2
and may choose to believe one witness over another. In re J.O.A., 283 S.W.3d

336, 346 (Tex. 2009). There is credible evidence that appellant kicked mother

out of their home in Wisconsin, with their youngest child, while she was pregnant

so that she was forced to return to Texas to live with her parents; that he hit the

children’s mother during an argument while she was undergoing cancer

treatments; that he is a convicted child sex offender; that the children do not have

a relationship with him or his family; that the children have been in appellees’

sole care for over two years and have lived with them for the majority of their

lives; and that the children have a good relationship with appellees and are doing

well in their care. See, e.g., Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). Because the evidence the factfinder could have chosen to believe is

sufficient under the appropriate standard of review to support a best interest

finding, we overrule this issue.        See Tex. Fam. Code Ann. § 101.007 (West

2014); State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

                              Fairness of Proceeding

      In his second issue, appellant contends that he did not receive a fair trial

because he could not hear or understand the proceedings as a result of

participating by telephone.

      Appellant did indicate an inability to hear the proceedings at several times

during the trial, as set forth below:

      THE COURT: [Appellant], were you able to hear the attorneys?

      [Appellant]: I -- barely, but I can make -- make of it.


                                            3
      THE COURT: All right. Let me ask the attorneys to pull the
      microphones right up to you and speak right into the microphones.

The trial court then asked appellant to state his name; he did so and then

responded to several questions without the need for them to be repeated. The

court had to remind a witness and lawyer to speak up:

      THE COURT [to the witness]: Please speak up . . . .

      THE WITNESS: Oh! I’m sorry.

      ....

      THE COURT: Speak up, please.

      ....

      THE COURT: All right.

      [Appellant], can you hear [your counsel] alright?

      [Appellant]: She needs to speak up just a little bit louder that’s all.

      THE COURT: If you’ll both -- both [attorneys], if you will pull the
      microphone where you are speaking right into the microphone,
      please.

      [Appellant’s counsel]: Yes, sir.

      After this exchange, appellant testified on direct for at least twenty-five

pages with no apparent problems, other than asking to repeat one question.

Appellant asked appellees’ counsel to repeat a question four times during his

cross-examination that lasted for eighteen pages. But each time, he was able to

answer when the question was repeated.




                                          4
      Appellant never objected to the lack of a bench warrant for his personal

appearance at the hearing, nor did he inform the trial court that he was unable to

adequately follow the proceedings. The record shows that appellant occasionally

had trouble hearing the proceedings.         But it also shows that when appellant

asked for a question to be repeated, he was able to answer it the second time.

Additionally, there are long periods of time in his own testimony that he was able

to respond to a series of questions without asking for them to be repeated, and

his answers are responsive to the questions asked. The trial court was diligent in

reminding the attorneys to speak into the microphone so that appellant could

hear, and appellant was able to engage in colloquy with the court as well.

Accordingly, we conclude and hold that to the extent this issue was preserved or

did not need to be preserved, the record does not show such an unfairness in the

proceedings as to undermine appellant’s right to due process. See Tex. R. App.

P. 33.1, 44.1(a); In re G.C., 66 S.W.3d 517, 525 (Tex. App.––Fort Worth 2002,

no pet.). We overrule appellant’s second issue.

                            Effectiveness of Counsel

      Appellant’s third issue relates to his appointed counsel. He contends that

she was unable to effectively prepare for trial because they could only

communicate via mail because of his incarceration, that she did not have enough

time to prepare, and that she was ineffective due to the small amount of time she

had to prepare appellant’s case for trial.




                                             5
        Appellant filed an answer to appellees’ suit––in which he requested

appointment of counsel––in April 2013. The trial court held a hearing regarding

the appointment of counsel in July 2013 but did not appoint counsel for appellant

until August 30, 2013. The trial court notified TDCJ by letter dated September 4,

2013 to make appellant available for the trial by phone. Although the trial was

originally scheduled for October 2, 2013, it was rescheduled to December 4,

2013.

        Thus, the record shows that appellant’s appointed counsel had at least

three months to prepare for trial. Nothing in the trial record shows that counsel

objected to the lack of preparation time, nor does the record show that counsel or

appellant made the court aware of any difficulties in communication about the

case. Appellant’s counsel attempted to introduce into evidence letters appellant

said he wrote to the children and sent to his sister for delivery. Counsel had

some difficulty authenticating the handwritten letters in appellant’s absence, but

the trial court ultimately admitted them for purposes of showing that appellant

had attempted to communicate with the children through his sister, whether or

not the letters were ultimately delivered to the children by appellees.

        Because of the absence of any evidence in the record showing that

appellant’s   trial   counsel   was   inadequately    prepared    or      had   trouble

communicating with appellant for the purpose of adequately presenting his case

to the trial court, we conclude and hold that appellant has not shown that his trial

counsel was inadequate under the appropriate standard of review. See In re


                                         6
C.S., No. 13-13-00095-CV, 2013 WL 3895818, at *8 (Tex. App.––Corpus Christi

July 25, 2013, no pet.) (mem. op.); In re J.W., 113 S.W.3d 605, 616 (Tex. App.––

Dallas 2003, pet. denied), cert. denied, 543 U.S. 965 (2004); see also Strickland

v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984); In re

H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). We overrule his third issue.

                                    Conclusion

      Having overruled all three of appellant’s issues, we affirm the trial court’s

order terminating appellant’s parental rights to his two children.



                                                    PER CURIAM

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

DELIVERED: December 18, 2014




                                          7
