









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-02-00140-CV

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IN THE INTEREST OF J.D.S., A CHILD








On Appeal from the 6th Judicial District Court

Fannin County, Texas

Trial Court No. 33188







Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter


O P I N I O N


I. Factual and Procedural Background
	Larry Sessums, Jr., appeals an order terminating the parent-child relationship between him
and his son, J.D.S.  On appeal, Sessums raises eight points of error.  Sessums was incarcerated and
was not present for the trial.  We only need to address the first issue:  whether the trial court erred
in denying Sessums' request for a bench warrant. (1)
	Sessums and Jennifer Wallace are the parents of J.D.S.  The two divorced on January 19,
1999.  Sessums and Wallace were appointed joint managing conservators of J.D.S., with Sessums
having the right to establish the primary residence of the child.  As part of the divorce decree,
Sessums was required to supervise J.D.S. at all times when in the presence of Sessums' father, Larry
Sessums, Sr.
	The Department of Protective and Regulatory Services first began its investigation into the
well-being of J.D.S. in July 1999 on a referral from Wallace that her husband's stepfather, Charles
Ray Woods, had sexually abused J.D.S.  At that time, J.D.S was five years old and was living with
Larry Sessums, Jr.  During the investigation, J.D.S. made an outcry against Larry Sessums, Sr., for
sexual assault.  The Department placed J.D.S. in the custody of his maternal grandparents, James and
Elizabeth Hale. 
	Before March 29, 2000, J.D.S. made an outcry against both Larry Sessums, Jr., and Larry
Sessums, Sr., for sexual assault.  Both were indicted for sexual assault of J.D.S.  Sessums (2) was also
indicted on a separate charge for sexual assault involving a woman in his apartment complex.  Later,
as part of a negotiated plea agreement, Sessums pled guilty to the sexual assault of the woman at his
apartment complex, and the charges against him relating to J.D.S. were dismissed.  The trial court
sentenced Sessums to fourteen years in prison.  From that time forward, Sessums was housed at the
Choice Moore Transfer facility in Bonham, Texas. 
	Thereafter, the Department sought to terminate the parental rights of both Wallace and
Sessums to J.D.S. under the procedures provided in Chapter 161 of the Texas Family Code.  See
Tex. Fam. Code Ann. §§ 161.001-.211 (Vernon 2002). Wallace voluntarily relinquished her
parental rights to J.D.S.  On August 16, 2002, in Bonham, Texas, a bench trial was conducted to
terminate Sessums' parental rights to J.D.S.  Sessums was not present at the termination hearing. 
The trial court agreed with two of the Department's alleged grounds for termination and terminated
Sessums' rights to J.D.S.  Sessums now appeals.
II.  Discussion

Bench Warrant
	In his first point of error, Sessums contends the trial court erred by denying his legitimate
request to be present at his termination hearing.  We agree.
	Sessums requested a bench warrant in a letter mailed to the trial court on January 10, 2002. 
In the letter, Sessums stated that he loved J.D.S. and that he "should, at least, have input as to where
[J.D.S.] is placed for the time being."  (Emphasis added.)  In the same letter, however, Sessums also
requested to be "physically present" at "any and all proceedings" (emphasis added) concerning J.D.S. 
On January 17, 2002, an annotation written on Sessums' letter indicates the trial court denied
Sessums' request for a bench warrant.  No explanation for the denial was given.
	The Department contends Sessums' letter was not a valid request to be present at his
termination hearing.  Rather, the Department insists Sessums wrote the January 10, 2002, letter in
anticipation of a permanency hearing scheduled for February 1, 2002.  The Department contends that
this interpretation of the letter is supported by:  (1) the fact that Sessums' letter contained a "Power
of Attorney" in which he ostensibly conferred on Jessica McElroy the authority to represent him in
all things concerning the custody, care, and well-being of J.D.S.; and (2) that, in his letter, Sessums
stated he wanted to be present in order to provide input on where J.D.S. would be placed "for the
time being."  (Emphasis added.)  Even if the Department is correct that Sessums wrote his letter in
anticipation of the February 1, 2002, hearing, the letter also contained a request to be physically
present at "any and all proceedings" (emphasis added) involving J.D.S.  We interpret this as a valid
request to be present at his termination hearing.  
	The parent-child relationship is recognized and protected by law to such a degree that it is
of federal constitutional dimensions.  Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (holding that
the parent-child relationship is "far more precious than any property rights").  The termination of
parental rights is final and ends all legal ties between the parent and child, except the child's right
of inheritance.  Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985).  Because termination of parental rights is such a drastic remedy and is of such weight and
gravity, due process requires the petitioner to justify termination by a heightened burden of proof of
"clear and convincing evidence."  See Tex. Fam. Code Ann. § 161.001.  Appellate courts must
carefully scrutinize judgments terminating the parent-child relationship because of the importance
of the relationship.  In re K.R., 63 S.W.3d 796, 800 (Tex. 2001).  The absence of a parent at the trial
to terminate his or her parental rights is prejudicial to the parent.  The parent's absence could leave
the fact-finder with the impression that the proceeding is not important to the parent.  Furthermore,
because of the obvious negative connotations associated with a parent who is incarcerated, it is
important for the fact-finder to witness the demeanor and credibility of the parent.  In short, the
presence, or nonpresence, of the parent in the courtroom at his or her termination hearing is vital to
the fact-finder's decision to terminate a parent's rights to his or her child. 
	Having concluded Sessums made a valid request to be present at his termination hearing, we
then review the trial court's decision to deny his request for an abuse of discretion.  In re I.V., 61
S.W.3d 789, 797 (Tex. App.-Corpus Christi 2001, no pet.).
	A prisoner has a constitutional right of access to the courts and may not be denied access
merely because he is an inmate.  Id. at 796; see Hudson v. Palmer, 468 U.S. 517, 523 (1984);
Armstrong v. Randle, 881 S.W.2d 53, 56-57 (Tex. App.-Texarkana 1994, writ denied).  But the right
of access is not absolute; it is a qualified right.  In re Z.L.T., 82 S.W.3d 100, 101 (Tex. App.-San
Antonio 2002, no pet.); In re B.R.G., 48 S.W.3d 812, 819 (Tex. App.-El Paso 2001, no pet.).
	In determining whether an inmate should personally attend civil court proceedings, the trial
court must balance the interest of the State in preserving the integrity of the correctional system with
the inmate's interest in access to the courts, with a goal of achieving a balance that is fundamentally
fair.  Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.-Houston [1st Dist.] 2000, no pet.).  Factors to
consider in weighing these two interests include, but are not limited to:  (1) the cost and
inconvenience of transporting the inmate; (2) the security risk presented by the inmate; (3) the
substance of the matter; (4) the need for witnessing the inmate's demeanor; (5) whether the trial is
before the jury or judge; and (6) the possibility of delaying trial until the inmate is released.  I.V., 61
S.W.3d at 796. 
	Acting on a request by summarily denying the request without weighing the State's interest
against an inmate's interest is also an abuse of discretion.  See In re D.S., 82 S.W.3d 743, 746 (Tex.
App.-Corpus Christi 2002, no pet.) (the trial court must weigh the interest of the plaintiff in
presenting his or her testimony in person against the interest of the State in maintaining the
confinement of the prisoner); see also I.V., 61 S.W.3d at 797. 
	Because Sessums' right to be present during court proceedings was a qualified right, the trial
court should have weighed the relevant factors and had a reason for denying a bench warrant before
it decided not to allow him to participate in person at the hearing.  See B.R.G., 48 S.W.3d at 819-20
("If, after considering these factors, the trial court determines that the prisoner is not entitled to
appear personally, then the trial court should permit him to proceed by affidavit, deposition,
telephone, or other effective means."); see also Nichols v. Martin, 776 S.W.2d 621, 623 (Tex.
App.-Tyler 1989, no writ) (concluding the trial court must make pertinent inquiries regarding an
appellant's request to appear); cf. Nance v. Nance, 904 S.W.2d 890, 892 (Tex. App.-Corpus Christi
1995, no writ) (the order reflects various findings demonstrating that the trial court did not arbitrarily
refuse to issue the requested bench warrant).  The record does not show that the trial court considered
any relevant factors, but rather merely denied Sessums' request.  The trial court's decision not to
weigh any relevant factors was an abuse of discretion. 
	Sessums' first point of error is sustained, and the judgment is reversed and the cause is
remanded to the trial court for a new trial.  See Tex. R. App. P. 44.1; Taylor v. Taylor, 63 S.W.3d
93, 98 (Tex. App.-Waco 2001, no pet.).



 Jack Carter
						Justice

Date Submitted:	July 11, 2003
Date Decided:		July 17, 2003
1. Because the bench warrant issue is dispositive in this case, we do not reach the merits of
Sessums' other points of error.  However, with regard to Sessums' second point of error-his claim
of ineffective assistance of counsel-we recognize that the Texas Supreme Court recently held that
a parent has a constitutional right to effective assistance of counsel in parental termination cases. 
See In re M.S., No. 02-0509, 2003 Tex. LEXIS 108, at *26-29 (July 3, 2003).
2. All further references to "Sessums" are to Larry Sessums, Jr., unless otherwise stated.
