in the Interest of P.L., a Child

• Court: Court of Appeals of Texas
• Decided: August 23, 2018
• Docket: 07-18-00157-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00157-CV

IN THE INTEREST OF P.L., A CHILD

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2016-523,382, Honorable Edward Lee Self, Presiding

August 23, 2018

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

Following a jury trial, the trial court signed a judgment in accordance with the jury

verdict that terminated the parent-child relationship between “Cody” and his son, “Peter.”1

Raising two issues, Cody contends that the trial court erred in denying his request for a

mistrial and challenges the legal and factual sufficiency of the evidence supporting the

jury’s predicate grounds and best interest findings to support termination of his parental

rights. We affirm.

1 To protect the privacy of the parties involved, we will refer to the appellant father as “Cody,” the

mother of the child as “Veronica,” and the child the subject of this appeal as “Peter.” See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). Veronica’s parental rights were terminated following a trial on November 29, 2017. She does not appeal. Factual and Procedural Background

In November 2016, the Texas Department of Family and Protective Services filed

its petition for protection, conservatorship, and termination of the parental rights of Cody

and Veronica as to their three-month-old son, Peter. Peter was removed after the

Department received a report that Veronica was incarcerated after her arrest for

possession of drug paraphernalia and methamphetamine. Cody was serving a forty-six-

month federal sentence for possession of methamphetamine and aiding and abetting at

the time of the removal and he has remained incarcerated throughout this case.

A bench trial before the associate judge was held on November 29, 2017. Cody

appeared by telephone and his court-appointed counsel was present at trial. The parental

rights of Cody and Veronica were terminated. Cody then requested a de novo jury trial.

The trial judge authorized Cody’s telephonic appearance for the jury trial. The

written authorization was faxed to the prison facility two times before the jury trial

commenced. 2 On the first day of trial, Cody appeared telephonically for the first half of

jury selection. The federal prison where Cody is incarcerated did not permit him to

participate after the morning session of trial. Cody’s attorney moved for a mistrial as soon

as she learned of the federal facility’s lack of cooperation in allowing Cody to appear by

telephone. Since he was unavailable as a witness, the trial court admitted portions of

Cody’s testimony from the termination trial before the associate judge.

2 Cody’s brief refers to a bench warrant authorizing Cody’s appearance by telephone, but there is

no request for a bench warrant in the record or an order authorizing a bench warrant. There are, however, two letters signed by the trial judge and addressed to the federal facility requesting that Cody be allowed to participate in the jury trial by telephone. The first letter is dated April 13, 2018, and the second letter is dated April 23, 2018, the morning jury selection began. Both letters appear to have been sent by facsimile.

2 The jury returned a verdict terminating Cody’s parental rights to Peter on the

grounds of endangering conditions, endangerment, constructive abandonment, and

failure to comply with the provisions of a court order necessary to retain custody of the

child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O) (West Supp. 2017).3

The jury also found that termination was in Peter’s best interest. See § 161.001(b)(2).

Applicable Law

A parent’s rights to the “companionship, care, custody, and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural

parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may

forfeit his or her parental rights by his or her acts or omissions, the primary focus of a

termination suit is protection of the child’s best interests. See id.

In a case to terminate parental rights by the Department under section 161.001 of

the Family Code, the Department must establish, by clear and convincing evidence, that

(1) the parent committed one or more of the enumerated acts or omissions justifying

termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear

3 Further references to provisions of the Texas Family Code will be by reference to “section__” or “§ __.”

3 and convincing evidence is “the 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.” § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both

elements must be established and termination may not be based solely on the best

interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—

Amarillo 2009, pet. denied). “Only one predicate finding under section 161.001[(b)](1) is

necessary to support a judgment of termination when there is also a finding that

termination is in the child’s best interest.” In re A.V., 113 S.W.3d at 362.

Analysis

Issue One

In his first issue, Cody argues that the trial court violated his rights under the U.S.

Constitution by denying his request for a mistrial because he was not allowed to

participate beyond the first morning of jury selection.

We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.

In re J.A., 109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied). Under an abuse

of discretion standard, an appellate court may reverse the trial court’s ruling only if the

trial court acted without reference to any guiding rules and principles, such that its ruling

is arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985). Merely because a trial court may decide a matter within its discretion

in a different manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id. at 242.

4 A litigant cannot be denied access to the courts simply because he is incarcerated.

In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). However, an inmate’s presence at trial is

not absolute and must be weighed against the protection of our correctional system’s

integrity. Id. In evaluating the need for an inmate’s presence at trial, courts have

considered the following factors: 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 the prisoner’s

probability of success on the merits. Id. at 165-66. The burden is on the inmate to justify

the necessity of his presence by producing evidence of the factors. See id. at 166.

To preserve a constitutional claim for appellate review, a party must raise the issue

in the trial court. TEX. R. APP. P. 33.1; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003)

(holding that, to preserve argument for appellate review, including constitutional

arguments, party must present it to trial court by timely request, motion, or objection, state

specific grounds therefor, and obtain ruling). We may not consider a complaint that was

not ruled on by the trial court. As explained by the Texas Supreme Court:

[A]llowing appellate review of unpreserved error would undermine the Legislature’s intent that cases terminating parental rights be expeditiously resolved, thus ‘promoting the child’s interest in a final decision and thus placement in a safe and stable home.’

5 In re L.M.I., 119 S.W.3d at 711 (quoting In re J.F.C., 96 S.W.3d at 304 (Schneider, J.,

dissenting)). An issue is waived when the objection on appeal does not comport with the

objection made at trial. In re R.L.T., No. 07-02-00332-CV, 2003 Tex. App. LEXIS 5289,

at *7 (Tex. App.—Amarillo June 24, 2003, no pet.) (mem. op.).

When Cody could not be reached by phone following the noon recess on the first

day of trial, his attorney moved for a mistrial “because the federal system will not put him

on the telephone.” The judge stated, “Counsel has done everything she can to have

[Cody] participate by telephone during the jury selection, that he was able to participate

by telephone during the morning session, but we have been unable to reach him again

on the telephone for the afternoon session.”

The next day, prior to opening statements, Cody’s attorney again moved for “a

continuance and/or a mistrial based on the federal government’s lack of cooperation in

procuring my client’s presence telephonically.” The trial court responded, “[W]e’ve done

everything we can to have [Cody] participate. We’ve been unsuccessful. So I’ll deny

your motions.”

Later that day, Cody’s counsel made a record of her due diligence to secure his

telephonic appearance.4 During a discussion about admitting Cody’s testimony from the

hearing before the associate judge, Cody’s attorney stated, “without [Cody’s] participation

telephonically, the jury is robbed from hearing his voice and his demeanor. And,

4 Outside the presence of the jury, Cody’s counsel put the following on the record: “I have

exercised due diligence in procuring [Cody’s] participation telephonically. I had the Court Coordinator for the 364th Court draft a letter over your signature, and it was sent to them. Two different letters were sent to them effectively. One signed, I believe by you, and then it was edited, and the second edition was signed by you yesterday. And I’ve had lack of cooperation with the federal penitentiary, and they are refusing to allow [Cody] to participate telephonically regarding this termination lawsuit. That’s all I have.”

6 therefore, you know, reading a straight, dry read of a transcript is biased.” Finding the

prior testimony admissible, the trial court stated:

I understand, but I, of course, concur with your statement earlier that the federal authorities are not willing to cooperate with us. They have refused to take our telephone calls, and all attempts at trying to get [Cody] today where he could participate personally have been unsuccessful. And so far as I know, we have tried everything possible to get him here. So I concur with your statement that you’ve exercised all due diligence to get him here. And, therefore, he would be a witness who is unavailable today. His prior testimony under oath with all counsel and parties present will be admissible.

While Cody’s counsel moved for mistrial, at no time during the trial did counsel

move for mistrial or object to proceeding with trial specifically on constitutional grounds

nor was a constitutional argument raised in a motion for new trial. Accordingly, Cody has

failed to preserve his alleged constitutional violation for appellate review. See In re A.G.,

No. 07-17-00298-CV, 2018 Tex. App. LEXIS 243, at *5 (Tex. App.—Amarillo Jan. 9, 2018,

pet. denied) (mem. op.); In re A.S.D., No. 02-10-00255-CV, 2011 Tex. App. LEXIS 9205,

at *31-32 (Tex. App.—Fort Worth Nov. 17, 2011, no pet.) (mem. op.) (failure to raise

constitutional complaints at trial fails to preserve them for appeal).

Even if Cody had properly preserved the issue, he would not prevail. The trial

court granted Cody’s request to appear by telephone and the trial court twice sent letters

authorizing his participation by teleconference to the federal facility where Cody was

incarcerated in the days leading up to the jury trial. However, the trial court lacked the

authority to compel Cody’s attendance because he was incarcerated in a federal facility

in another state. See In re C.P.V.Y., 315 S.W.3d 260, 269-71 (Tex. App.—Beaumont

2010, no pet.) (father appeared telephonically on first day of termination trial but could not

do so on the second day due to a lockdown at the prison; no violation of father’s

7 constitutional right to be present at trial where trial court granted father’s request for writ

of habeas corpus but lacked authority to compel attendance because father was

incarcerated in federal facility in another state and federal government refused to honor

trial court’s order.).

We do not find any indication in the record that Cody sought a bench warrant or

produced evidence of the In re Z.L.T. factors explaining why Cody’s presence was

necessary. See In re Z.L.T., 124 S.W.3d at 165-66. The trial court admitted Cody’s

testimony from the trial before the associate judge which occurred only a few months

before the jury trial and involved identical parties and representation. Cody’s attorney

was present throughout the jury trial to mount a defense on his behalf, including

presenting evidence, cross-examining witnesses, and giving argument. Incarcerated

throughout the case, Cody does not argue that his circumstances have changed between

the time that trial was held before the associate judge and the jury trial, or that his

testimony would have been different. Finding the trial court did not abuse its discretion in

denying the motion for mistrial, we overrule Cody’s first issue.

Issue Two

In his second issue, Cody challenges the legal and factual sufficiency of the

evidence to support the predicate grounds for termination and the best interest finding.

However, we are not shown nor do we find any record indication that Cody preserved his

legal and factual sufficiency complaints in the trial court. See TEX. R. APP. P. 33.1(a).

“Important prudential considerations underscore our rules on preservation. Requiring

parties to raise complaints at trial conserves judicial resources by giving trial courts an

8 opportunity to correct an error before an appeal proceeds.” In re B.L.D., 113 S.W.3d 340,

350 (Tex. 2003).

To preserve a legal sufficiency challenge on appeal following a jury trial, an

appellant must have: (1) moved for an instructed verdict; (2) moved for judgment

notwithstanding the verdict; (3) objected to the submission of a jury question; (4) moved

to disregard the jury finding; or (5) moved for a new trial. In re S.R.-B., No. 02-15-00301-

CV, 2016 Tex. App. LEXIS 629, at *3 (Tex. App.—Fort Worth Jan. 21, 2016 no. pet.)

(mem. op.); In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11 (Tex.

App.—Amarillo Oct. 7, 2014 no pet.) (mem. op). After a jury trial, factual sufficiency

challenges must be raised in a motion for new trial. TEX. R. CIV. P. 324(b)(2), (3); In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003); In re D.J.J., 178 S.W.3d 424, 427 (Tex. App.—

Fort Worth 2005, no pet.).

Cody took none of the above actions necessary to preserve his sufficiency

complaints and therefore has preserved nothing for our review. We overrule Cody’s

second issue.

Conclusion

Having overruled both of Cody’s issues, we affirm the trial court’s judgment.

Judy C. Parker Justice