      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00779-CV



                                  Ulysses Sinai Lopez, Appellant

                                                  v.

                     Max Kushner and Sara Kathryn Kushner, Appellees


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
      NO. B-05-0203-J, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this accelerated appeal, Ulysses Sinai Lopez appeals pro se from a judgment

terminating his parental rights to his child, S.A.L., and granting S.A.L.’s adoption by a stepparent.1

See Tex. Fam. Code Ann. §§ 102.005, 161.001(1), 162.001(b) (West Supp. 2007).2 Lopez raises

various procedural issues but does not challenge the sufficiency of the evidence. For the reasons that

follow, we affirm the judgment.3


       1
           Lopez filed his notice of appeal more than twenty days after the judgment was signed, but
the notice was filed within the fifteen-day grace period and Lopez filed a motion to extend the
deadline for filing. See Tex. R. App. P. 26.1(b), 26.3. We grant the motion and extend the deadline
for filing his notice of appeal.
       2
          We cite the current version of the applicable statutes throughout the opinion unless
substantive changes to the applicable statute were made to issues relevant to the appeal.
       3
          Lopez also filed a motion to strike appellees’ brief on appeal on the ground that it contains
an attack on a fellow prisoner who assisted Lopez in the preparation of his brief. We do not construe
appellees’ argument as an attack on Lopez or his fellow prisoner but we disregard any factual matters
                S.A.L., the child who is the subject of this suit, was born to Sara Kathryn Kushner

and Lopez on December 26, 1997. At the time of their divorce in January 2004, Sara Kathryn was

named sole managing conservator and Lopez was named possessory conservator. Sara Kathryn

married Max Kushner in May 2005, and S.A.L. has resided with them since that date. The couple

has a two-year-old daughter who also resides with them.

                On May 12, 2005, following a jury trial, Lopez was convicted of two counts of

aggravated sexual assault of a child and sentenced to thirty-one years’ confinement in the Texas

Department of Criminal Justice, Institutional Division, where he remains confined. He was accused

of molesting a child from the approximate age of ten until she was thirteen. The convictions were

affirmed in 2006 and Lopez’s petition for discretionary review was dismissed as untimely in January

2007.4 As part of the judgments, Lopez was ordered to comply with sex offender registration

requirements. The court found that his confinement would be in excess of two years. See Tex. Fam.

Code Ann. § 161.001(1)(Q).

                On August 5, 2005, Sara Kathryn and Max Kushner filed a petition for termination

and adoption, requesting that Lopez’s parental rights be terminated and that Max Kushner be

permitted to adopt S.A.L. As grounds for termination, the Kushners alleged that Lopez (i) 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; (ii) failed to support the child in accordance with his


raised for the first time in the briefs on appeal, considering only those factual matters already in the
record. We, therefore, overrule the motion.
        4
         Lopez v. State, No. 05-05-00881-CR, 2006 Tex. App. LEXIS 2548 (Tex. App.—Dallas
March 30, 2006, pet. ref’d) (not designated for publication), appeal dismissed, No. PD-1227-6, 2007
Tex. Crim. App. LEXIS 29 (Tex. Crim. App. Jan. 10, 2007).

                                                   2
ability during a period of one year ending within six months of the date of the filing of the petition;

and (iii) knowingly engaged in criminal conduct that resulted in his conviction of an offense and

confinement or imprisonment and his inability to care for the child for not less than two years from

the date the petition was filed. See id. § 161.001(1)(E), (F), (Q). Lopez appeared pro se, filing an

answer and various motions.5

               In September 2006, the termination and adoption proceeding was tried before the

court. Lopez participated in the hearing by telephone. After hearing the evidence, including Lopez’s

testimony by telephone and Kushner’s testimony, the judge found by clear and convincing evidence

that Lopez knowingly engaged in criminal conduct that resulted in his conviction of an offense and

his imprisonment and inability to care for S.A.L. for not less than two years from the date of filing

of the petition, that termination of the parent-child relationship between Lopez and S.A.L. was in the

child’s best interest, and that Kushner’s adoption of S.A.L. was in the child’s best interest.

               The trial court terminated the parent-child relationship and granted the adoption by

Kushner. See id. § 161.001(1)(Q). In its order, the court found by clear and convincing evidence

that Lopez had been incarcerated since April 2004 and convicted on two separate counts of

aggravated sexual assault against a child for which he was sentenced to thirty-one years on both

counts, that he would be confined and unable to care for S.A.L. for not less than two years from the


       5
         Lopez is before this court pro se. We are obligated to construe the rules of appellate
procedure reasonably, yet liberally, so that the right to appeal is not lost. See In re Baby Boy R.,
191 S.W.3d 916, 921 (Tex. App.—Dallas 2006, pet. denied). Likewise, we are obligated to liberally
construe the points raised in Lopez’s brief. See Anderson v. Gilbert, 897 S.W.2d 783, 784
(Tex. 1995). However, a pro se litigant is held to the same standards as licensed attorneys and must
comply with applicable laws and rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444
(Tex. 2005).

                                                  3
date of filing of the petition, that termination of the parent-child relationship between Lopez and

S.A.L. would be in the child’s best interest, and that adoption by Kushner would be in S.A.L.’s best

interest. This appeal followed.


                                             DISCUSSION

                Following his conviction in May 2005, Lopez continued to be confined in prison, and

the petition for termination was filed in August 2005. Texas Family Code section 161.001(1)(Q)

provides that a trial court may order termination of the parent-child relationship if the court finds by

clear and convincing evidence that the parent knowingly engaged in criminal conduct that has

resulted in the parent’s (i) conviction of an offense, and (ii) confinement or imprisonment and

inability to care for the child for not less than two years from the date of filing the petition. Id. The

evidence is clear and convincing when the proof is such that it produces in the mind of the trier of

fact a firm belief or conviction of the truth of the allegations sought to be established. In re C.H.,

89 S.W.3d 17, 25-26 (Tex. 2002). The family code permits a termination and adoption proceeding

to be combined as here. Tex. Fam. Code Ann. §§ 102.005, 162.001(b). The court must make

separate findings that the termination is in the best interest of the child and that the adoption is in the

best interest of the child. Id. § 162.016 (West 2002).

                In nine issues, Lopez challenges various procedural aspects of the proceeding. Except

to urge at the time of his final hearing that he was hopeful to overturn his convictions on appeal,

Lopez does not challenge the court’s findings that he was convicted on two counts of aggravated

sexual assault against a child for which he received thirty-one year sentences, and that he would be

confined for not less than two years from the date of petitioners’ filing of the petition.

                                                    4
                Apart from the jurisdictional issue raised, the standard of review for the remaining

issues is whether the trial court abused its discretion. The test for an abuse of discretion is whether

the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The fact that the trial court decided the issue

differently than the reviewing court would have does not indicate an abuse of discretion. Id. Nor

does a mere error in judgment rise to such a level. Id.


Jurisdiction

                Lopez first contends that the trial court did not have jurisdiction because at the time

of the hearing, the Kushners were living in Hawaii where Kushner was serving in the United States

Air Force. In a termination and adoption proceeding, and in the absence of continuing jurisdiction

in another court, a court has jurisdiction in the county of the child’s residence. See Tex. Fam. Code

Ann. §§ 103.001, 155.001 (West 2002). In their petition, the Kushners alleged that the court had

acquired and retained continuing, exclusive jurisdiction of the suit and of the child as a result of prior

proceedings. Kushner testified that, at the time the petition was filed, the child that was the subject

of the petition, and the Kushners were residing in Tom Green County and had been residing there

since February 2005. The court found that it had jurisdiction and that no other court had continuing,

exclusive jurisdiction of the case. The record reflects Lopez’s challenge is without merit. We

overrule Lopez’s first issue.




                                                    5
Interviewing the Child

               Lopez next urges that the trial court abused its discretion by failing to interview the

child. Lopez contends that the court was statutorily required to interview S.A.L. and refused to do

so. We disagree.

               Section 153.009 of the family code provides for the interview of the child by the court

in a nonjury trial. Id. § 153.009(a) (West Supp. 2007). That section specifies that the court “shall”

interview in chambers a child twelve years or older and “may” interview a child under the age of

twelve. At the time of the hearing, S.A.L. was eight years old. The court denied Lopez’s motion for

an interview, explaining,


       I may choose to interview the child if I feel I need to, if it’s in the best interest of the
       child, but right now I am going to rule that I am not required to interview the child
       by law, but I may if I so decide to, okay?


Lopez does not show in what respect the court abused its discretion and we cannot say the trial court

abused its discretion in denying Lopez’s motion. We overrule Lopez’s second issue.


Recusal of Trial Judge

               Lopez argues on appeal that he moved to recuse Judge Gossett but that Judge Gossett

“refused to recuse himself or obtain a ruling from another judge.” On September 6, 2006, Lopez

filed a motion seeking to recuse the trial judge. At the time Lopez filed his motion, he complained

that the “sitting judge” in the proceedings was biased against him and sought his recusal. The

“sitting judge” who had signed orders in his case on January 25 and March 20, 2006, prior to

the final hearing, was Judge Woodward. At the beginning of the hearing on September 8, 2006,


                                                    6
Judge Gossett denied the motion to recuse, explaining that Judge Woodward would not be hearing

the case and that Judge Gossett would hear the case. Lopez did not renew his motion as to Judge

Gossett and the record does not show any reasons given or grounds for recusal.6 We overrule

Lopez’s third issue.


Request for Jury Trial

                Lopez contends in his fourth issue that the trial court abused its discretion by denying

his request for a jury trial. Texas Rule of Civil Procedure 216 provides that a request for a jury trial

must be in writing and filed a reasonable time before the date set for trial of the cause, “but not less

than thirty days in advance.” Tex. R. Civ. P. 216(a).

                By order dated June 6, 2006, the final hearing was reset for July 7. On June 22,

Lopez moved to reset the date of the hearing from July 7 until August 7 or thereafter. On July 6, the

court reset the hearing for September 8, 2006. Despite the continuances, Lopez did not file a motion

for jury trial until September 6, 2006, two days prior to the final hearing. Because this request

was untimely, the trial court did not abuse its discretion in denying the motion. Lopez’s fourth issue

is overruled.




       6
          Following the hearing, on October 17, 2006, Lopez filed a motion to recuse Judge Gossett
for requiring him to appear by telephone and for the conduct of the hearing. A judge may be recused
where the judge’s impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(2)(a). Other
than ruling against him at the September 8 hearing, Lopez does not state the basis for his request for
recusal.



                                                   7
Appearance by Telephone

                Lopez does not challenge the decision of the trial judge to decline to grant a bench

warrant allowing him to appear in court. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Rather,

he complains that the trial court did not allow him to participate fully in the hearing and that he was

excluded from the hearing after he testified.

                Litigants cannot be denied access to the courts simply because they are inmates. See

Hudson v. Palmer, 468 U.S. 517, 523 (1984); In re Z.L.T., 124 S.W.3d at 166 (holding inmate does

not have an absolute right to appear in person in every court proceeding). A prisoner in Texas has

a constitutional right of access to the courts, but only a qualified right to appear personally in a civil

proceeding. Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.—Houston [1st Dist.] 2000, no pet.),

disapproved on other grounds, 124 S.W.3d 163, 166 (Tex. 2003). If an inmate is not allowed to

participate in a proceeding in person, particularly if the merits can be determined without his

presence, a trial court should afford the inmate the opportunity to proceed by affidavit, deposition,

telephone, or other effective means. In re Buster, 115 S.W.3d 141, 144 (Tex. App.—Texarkana

2003, no pet.); In re Taylor, 28 S.W.3d 240, 249 (Tex. App.—Waco 2000, orig. proceeding),

disapproved on other grounds, 124 S.W.3d 163, 166 (Tex. 2003); Pedraza v. Crossroads Sec. Sys.,

960 S.W.2d 339, 343 n.3 (Tex. App.—Corpus Christi 1997, no pet.); Byrd v. Attorney General,

877 S.W.2d 566, 569 (Tex. App.—Beaumont 1994, no writ), disapproved on other grounds,

124 S.W.3d 163, 166 (Tex. 2003). 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, 17 S.W.3d at 717. The right of a prisoner to have access to the courts



                                                    8
entails not so much his personal presence as his opportunity to present evidence and participate in

the proceedings. In re D.D.J., 136 S.W.3d 305, 313-14 (Tex. App.—Fort Worth 2004, no pet.);

Dodd, 17 S.W.3d at 717. An inmate, however, does not have the absolute right to present his case

in a civil matter in any manner he chooses. The trial court may determine the manner of

presentation. Byrd, 877 S.W.2d at 569. We review a trial court’s failure to act on a litigant’s request

to participate in a proceeding in person or through some other means for an abuse of discretion.

Dodd, 17 S.W.3d at 716; Birdo v. Holbrook, 775 S.W.2d 411, 414 (Tex. App.—Fort Worth 1989,

writ denied); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.—Dallas 1987, no writ).

               After finding that Lopez had failed to justify a personal appearance, the trial court

permitted Lopez to appear by telephone. Lopez appeared by telephone conference and also

submitted affidavits and exhibits which the trial court admitted into evidence. The court then ended

the telephone conference and allowed Kushner to testify. Kushner testified to the circumstances of

the adoption and introduced into evidence Lopez’s two judgments of conviction for aggravated

sexual assault of a child for which Lopez was convicted on May 12, 2005. After the hearing, Lopez

filed written objections to the telephone proceedings, objecting to not being allowed to be present

during the entirety of the proceedings and to the failure of the trial court to appoint an attorney

ad litem for S.A.L. and an attorney for himself. The trial court again held a hearing by telephone on

the objections, giving Lopez an opportunity to supplement the record with any evidence that was not

included in the record. The trial court asked Lopez whether he had any further evidence that “should

be on the record that you say is not on the record?” Lopez did not identify any evidence he wished

to offer nor did he thereafter submit any additional evidence.



                                                  9
               Nothing in the record shows that Lopez ever asked the trial court to allow him

to appear by telephone or other than in person. He failed to make any showing to support his request

to be present for trial. See In re Baby Boy R., 191 S.W.3d 916, 922 (Tex. App.—Dallas 2006,

pet. denied) (inmate waived appearance by telephone by not requesting). Nothing in the record

suggests that Lopez could not have offered admissible testimony by deposition, telephone, or some

other means. See In re A.H.L., 214 S.W.3d 45, 51 (Tex. App.—El Paso 2006, pet. denied). When

an appellant contends a trial court erroneously limited his cross-examination of a witness, he

must normally show he made an offer of proof of the excluded testimony to preserve any error. See

Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986); Canto-Deport v. State,

751 S.W.2d 698, 700 (Tex. App.—Houston [1st Dist.] 1988, writ ref’d). An offer of proof may be

made by some statement in the record sufficient to show what the intended testimony would have

been and the purpose of the testimony. Moosavi v. State, 711 S.W.2d 53, 55-56 (Tex. Crim. App.

1986). No offer of proof is necessary, however, if the substance of the exclusion is apparent from

its context. Canto-Deport, 751 S.W.2d at 700.

               Even if we were to decide Lopez was entitled to be present or to question Kushner,

we would conclude that any error was harmless. This is not a case in which the court summarily

denied Lopez any access to the court. See In re Z.L.T., 124 S.W.3d at 165-66; In re J.D.S.,

111 S.W.3d 324, 327-28 (Tex. App.—Texarkana 2003, no pet.). Lopez does not challenge any of

the findings made by the court, including the ground for termination. No offer of proof by bill of




                                                10
exceptions or otherwise appears in the record.7 Lopez made no complaint during the September 8

hearing that he was not allowed to present his evidence or exhibits. During the course of the hearing

on the bill of exceptions, Judge Gossett asked if Lopez wished to add or supplement his evidence

or expand on his case. Because Lopez failed to complain to the trial court of the existence of any

excluded evidence and obtain a ruling on his complaint, he has failed to preserve the issue for

review. Tex. R. App. P. 33.1(a)(1).

               On appeal, Lopez does not contend his testimony, affidavits, and exhibits were

insufficient to put his evidence before the court. See Birdo, 775 S.W.2d at 414. Moreover, we may

not reverse a judgment unless an error of law probably caused the rendition of an improper judgment

or probably prevented the appellant from properly presenting the case to the court of appeals. See

Tex. R. App. P. 44.1(a). Lopez has made no such showing. We overrule Lopez’s fifth issue.


Appointment of Counsel and Psychologist

               In his sixth, seventh, and eighth issues, Lopez complains of the failure of the trial

court to appoint an attorney ad litem for S.A.L.,8 a psychologist to examine S.A.L., and counsel for

himself. Lopez recognizes that these are discretionary matters with the court.




       7
          At the hearing on Lopez’s bill of exceptions, the court found that the “bill does not reflect
any complaints about any matter that would not otherwise appear in the record,” Lopez “is not able
to identify any other evidence which should be part of the record,” and the record contains “all
evidence, testimony, filed documents, pleadings, orders and findings.”
       8
          Although Lopez filed a motion requesting that an attorney ad litem be appointed for
himself, the record does not contain a motion requesting appointment of an attorney ad litem for
S.A.L.

                                                  11
               In suits in which the best interest of a child are at issue, other than a suit filed by a

governmental entity, family code section 107.021 allows for the discretionary appointment of an

attorney ad litem for the child. Tex. Fam. Code Ann. § 107.021(a) (West Supp. 2007). Section

107.021(a) provides that the court “may” appoint an attorney ad litem. Id. Subsection (a-1) provides

that, in a suit requesting termination of the parent-child relationship that is not filed by a

governmental entity, the court “shall, 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, appoint . . . an attorney ad litem.” Id. § 107.021(a-1).9

               At trial, Lopez asked the trial court, “[W]ho is the Attorney Ad Litem for the child?”

The trial judge explained that the court can dispense with an attorney ad litem for the child if the

interests of the petitioners and the child are not adverse. The court stated that he would appoint an

attorney ad litem should a conflict appear and that he might consider abating the proceedings, “but

right now it has not been shown to me that there is an adverse interest between the Petitioners and

the child, so one has not been appointed.” Because this petition to terminate parental rights was not

filed by a governmental entity, the court had discretion whether to appoint an attorney. Lopez did

not object further nor demonstrate that there was an adverse interest between the petitioners and the




       9
           Section 107.021 was amended in 2005 to add subsection (a-1). Act of May 12, 2005,
79th Leg., R.S., ch. 172, § 8, 2005 Tex. Gen. Laws 322, 325. The amendment applies to suits
affecting the parent-child relationship filed on or after the effective date of Sept. 1, 2005. Id. § 29,
2005 Tex. Gen. Laws at 329. Petitioners filed this suit prior to the effective date of the amendment
when the statute left the determination entirely in the trial court’s discretion, and Lopez does not
complain that the trial judge applied an incorrect version of the statute. Neither party refers to
subsection (a-1).

                                                  12
child so as to require the appointment of an attorney ad litem. In its order, the court found that the

interest of the child was adequately protected by petitioners.

               Although Lopez urges in his seventh issue that the family code contains a provision

that requires the appointment of a psychologist to assess any harm caused by the termination of the

parent-child relationship, he fails to cite to any such requirement, and we are not aware of any such

requirement in this context.

               Lopez next contends in his eighth issue that the court failed to appoint an attorney

ad litem to represent him. The record shows that, in January 2006, the trial court entered an order

directing Lopez to file an affidavit with the court providing information to justify his request for an

appointment of an attorney and his presence at the hearing, and concerning the charges for which

Lopez was incarcerated, the length of his sentence, and his expected release date. At a hearing on

March 15, 2006, the court entered an order finding that Lopez had not responded to his prior order,

and had thus failed to justify the appointment of an attorney and his presence at the trial. The trial

court denied Lopez’s motion for an appointment of an attorney and for a bench warrant to secure his

presence at trial. Thereafter, Lopez moved for a continuance and for reconsideration of his request

for an attorney. At the September 8 hearing, the trial court declined to reconsider Lopez’s motion.

               There is no constitutional right to appointed counsel in every termination proceeding.

Lassiter v. Department of Social Services, 452 U.S. 18, 27-32 (1981). Rather, an indigent parent’s

constitutional right to counsel under the Fourteenth Amendment’s Due Process Clause must be made

on a case-by-case basis. Id. Texas has adopted a higher standard by mandating the appointment

of an attorney ad litem for an indigent parent who opposes the termination of the parent-child



                                                  13
relationship in a suit filed by a governmental entity. Tex. Fam. Code Ann. § 107.013(a)(1)(West

Supp. 2007). Because this petition to terminate parental rights was not filed by a governmental

entity, the court had discretion whether to appoint an attorney. Even had Lopez preserved the issue

for our review, he has not shown how the court abused its discretion or how he was harmed when

the case proceeded to trial.

                The trial court did not abuse its discretion when it denied Lopez’s inquiry about

S.A.L’s attorney ad litem, and Lopez’s motions for a psychologist to interview S.A.L. and for an

attorney. In any event, Lopez has not shown how these rulings caused the rendition of an improper

judgment. See Tex. R. App. P. 44.1(a)(1). We overrule Lopez’s sixth, seventh, and eighth issues.


Motion for Continuance

                In his final issue, Lopez complains that the court abused its discretion in failing

to grant a continuance. The decision to grant a continuance rests within the sound discretion of

the trial court. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). We review

the circumstances before the court at the time of the denial to determine whether the decision was

so arbitrary as to violate due process. See Guerrero-Ramirez v. Texas State Bd. of Med. Examiners,

867 S.W.2d 911, 916 (Tex. App.—Austin 1993, no writ) (citing Ungar v. Sarafite, 376 U.S. 575,

591 (1964)).

                Lopez contends that he was not allowed meaningful access to the prison library and

that he was unable to properly prepare for trial. But Lopez filed a motion for continuance on June

22, 2006, seeking a trial setting on “August 7, 2006 or thereafter.” The trial court reset the trial date

for September 8. There is no further request in the record for an additional continuance. The trial

                                                   14
court did not abuse its discretion because it gave Lopez the relief he requested. In any event, Lopez’s

motion contained no statement as to the testimony Lopez expected to offer as required by the rules

of civil procedure. See Tex. R. Civ. P. 252. Lopez has not shown how the failure to grant any

further continuance caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1);

In re Baby Boy R., 191 S.W.3d at 922-23. We overrule Lopez’s ninth issue.


                                           CONCLUSION

                The trial court did not err by finding that clear and convincing evidence established

that Lopez engaged in criminal conduct that resulted in his conviction of an offense and confinement

or imprisonment and his inability to care for the child for not less than two years from the date the

petition was filed, that termination of Lopez’s parental rights is in the best interest of the child, and

that adoption by Kushner is in the best interest of the child. Having overruled Lopez’s issues, we

affirm the judgment of the trial court.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: February 13, 2008




                                                   15
