### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00627- CV

Ted Larson, Ap pellant

v. Jack Gie senschlag, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 22ND J UDICIAL DI STRICT NO. C2010 -00 71A, H ONO RAB LE CHARLES A. STEP HENS II , JUDGE P RESIDING

O P I N I O N

I n this re s tricted appea l, appellant Ted L arson challeng es the trial court’s order
t erminating his pare ntal rig hts to his child, R.L ., in a private termination suit filed by R

. L

. ’s
materna l g randf

ather

. See Tex. Fam. Code Ann. § 101.032(a) (West 2008) (pr oviding that suit to terminate pare ntal rig hts is suit aff ecting pare nt-child rela tionship), § 102.003(a )( 9 ) (W est Supp. 2011) (providing that su i t aff ecting pare nt-child rela tionship may be filed by person, other than foster pare nt , wh o has had actua l car e, control, and possession of child for at least six months). L arson, who was incar cer ated at the time, did not a ppear or otherwise participa te in the bench trial that resulted in the t ermination of his pare ntal rig hts. I n two poin ts of error, L arson contends that the trial court err ed in fa i l i n g t o m ake an express, independe nt finding that appointment of an attorney ad litem wa s require d and that the trial court err ed in f ailing to a llow him to pa

rticipate in the trial. Be cause we conclude that the trial court abused its discretion in deny ing L arson’ s reque stto pa

rticipate, we reve rse the order of the trial court and rema nd for further proce eding s consistent with this opi nion.

BACK GR OUND

L arson is the fathe r of R.L ., born in Fe bruar y 2007. L arson’ s wife and R.L .’s mother, Amy L arson, died of pneumonia in Dec ember 2009, when R.L was just two y ear s old. At the time 1 of hi s wife’ s death, L arson was serving a two-y ear sentenc e in the Tex as Department o f C ri m i nal J ustice and had thirteen months rem ai n i n g o n his sentenc e. I n J anuar y 2010, J ack Giesensc hlag , R

. L .’s materna l g randf

ather , filed an orig inal petition in a suit aff ecting the pare nt- ch i l d rela tionship, seeking termination of L arson’ s pare ntal rig hts and ap p o i n tment as sole manag ing

conser vator of R.L

. See id

. § 102.003(9). L inda Giesensc hlag Br ower , R.L .’s materna l g randmother and Giese nschlag ’s ex-wife, inter vened in the suit, see king g randpa rent a cce ss to or possession of R.L

. See id . § 154.433 (West Supp. 2011).

On J une 28, 2010, the t ri al co urt commence d a bench trial on the matter. Neither Br ower nor L arson was repr esented by counsel, and no attorney ad litem had been appointed to repr esent the interests of R.L

. L arson did not appea r, and Br ower appea

red pro se. Prior to the prese ntation of any evidenc e, Br ower orally reque sted that the trial court g rant a continuance of the trial. She informed the court that she had been unsucce ssfully “asking to have an attorney ad litem by CASA for [R .L .’s] benef it” and “try

ing very hard to find repr esenta tion for the child.” She also

Unless otherwise noted, the fac ts rec ited here in are taken from the testimony and exhibi ts 1 at trial. 2told the court that she soug ht to “g ive [L arson], the biologica l fathe r, wh o ’s i n carce rate d at the

moment, to have pro bono le g al advice to stand up for his rig ht.”

I n response , the trial court informed Br ower that L arson was not e ntitled to a courtappointed attorney beca

use it was “not a criminal matter” and then eng ag ed in the following exchang e with counse l for Giese nschlag :
THE COURT: [There] are only two instances, I ’m awa re o f, i f he wants to have a prese nce in the matter. Has he made that known to us, [counsel] ? COUNSEL : Actually , J udg e, he filed some sort of pleading and in that

pleading does not ask for a bench war rant, nor does he reque st to ap p ea r b y telephone, nor does he reque st to appea r by aff idavit. He aske d for the c ase to be postponed.

The trial court then asked Br ower why she now wanted to postpone the trial. Br ower responde d that she had filed affidavits on b ehalf of herself and L arson and that she needed a twowee k continuance so that she co u l d prepa re for the proce eding and so that the aff idavits could be used in the hear ing. Br ower explained that, while she was not an attorney , she was doing “the best [she c ould] to stand up for [her] daug hter and for [her] son-in-law ’s rig hts not to ha ve an adoption of his child.” The trial court then de nied her reque st f or a continuance

. Br ower indicated that she did not want to participate in the hear ing a nd left the c ourtroom. The trial court then proce eded to hear the case on its merits. The only witness, Giesensc hla g te s ti f

ie d in s u p p o r t of his reque st for termination and introduced documentar y evidenc e of L arson’ s criminal history , including a conviction for assault family violence. See Tex. Penal Code

3Ann. § 22.01(b)( 1) (West 2011). During the prese ntatio n o f Giesensc hlag ’s testimony , the trial

court interr

upted to ask Giese nschlag ’s counse l ag ain about L arson:

THE COURT:

. . . . There was no–I don’t think the Court has rec eived any thing but a letter from Mr. L arson. Did he re ceive notice of this hea ring ? COUNSEL : Yes, he did, Your Honor. THE COURT: Has there been a reque st by Mr. L arson–he ’s in prison at this

point? COUNSEL : He is, Your H onor. THE COURT: H a s th e r e b e e n a r e q u e s t b y M r . L a

r s o n to ma

k e a n a p p e a r a n c e in any way , shape, or

form? COUNSEL : Only reque st he made was to pos t pone this hear ing. He did

not reque st a bench war

rant, or reque st a phone call [nor] did he reque st to appea

r by aff idavit. Howeve r, if t h e Court would like to use his letters and response s as evidenc e in this case , subject to objections or hear say , et cete ra, I would not be opposed to letting the J udg e consider those for his testimony

. THE COURT: W el l , I t h i n k at this point in time I ’ll consi d er t h em fo r

purposes of an answe r, but my question rea lly was to the issue of whether or not there had been a reque st by Mr. L arson to be ava ilable in some form. You’ re te lling me he has not. COUNSEL : The o nly spot I see that he has reque sted at the very end he

say s it is Respondent’s reque st that the Court pursue one or all of the following g rant intervenor temp o rar y sole manag ing conser vator of the child, to postpone the proce eding until he’s able to actively pursue and participa te in proceed ings with counsel. I would rea d that as a reque st to postpone not to be prese nt at this hearing at this tim e.

At the conclusion of the trial, the trial court enter ed an order termi n at i n g L ar son’s pare ntal rig hts and deny ing B rowe r g randpa rent a cce ss and visitation. Though no f indings of fac t
4or conclusions of l aw were reque sted or i ssued, t he trial cour t ’s order rec ites that the court found,

by clea r and convincing evidenc e, that L arson (1) knowing ly place d or knowing ly allowed the child
to remai n in conditions or surroundings that endang er the phy sical or emotional well-be ing of the ch i l d , an d (2 ) eng ag ed in conduct or knowing ly place d the child with persons who eng ag ed i n conduct that endang ers the phy sical or emotional well-be ing of the child. See Tex. Fam. Code Ann. § 161.001(1)( D), (E) (West Supp. 2011). I n addition, the order states that “[t] he court [found] that J ack Giesensc hlag has no adver se interest to the child the subject of this suit and would adequately repr esent the interest of the child. No attorney ad litem or amicus attorney was nece ssary , and none

was appointed.” Id

. § 107.021(a- 1) (West 2008) (appointment of attorney ad l i t em i s mandatory unless “the court finds that the interests of the child will be repr esente d adequately by a party to the suit whose interests ar e not in conflict with the c hild’s interests”). T his appea l followed.

DISCUSSIO N Restr icte d app eal

A restric ted appea l is a direc t attack on the judgme nt and aff ords a party who did
not participa

te at trial with an opportunit y to co rr ect err or i n the j udg ment. Appellate review of a restric ted appea l is the same scope of revie w as an ordinary appea l, that is, it is a revie w of the entire

case . Norman Commc’ns v. Texas Eastman Co. , 955 S.W .2d 269 , 270 (Tex. 1997). I n order to preva il on a restric ted appea l, the appellant must show that (1) he filed a notice of appea l within six months of the date the judgme nt was signe d, (2) he was a party to the underly ing lawsuit, (3) he did
not participa

te in the hear ing that resulted in the judgme nt or timely file any post-judgme nt motions

5or req u es t s for finding s of fac t or conclusions of law, and (4) err or is appar ent on the fac e of

the re cord Id

. I n this case , L arson and Br ower filed a pro se notice of appea l on September 3, 2010,

more than two months afte r the trial court enter ed its order terminating L arson’ s pare ntal rig hts and deny ing Br ower g randpa

rent acc ess. Giesensc hlag then moved to dismiss the appea l on the g round that L arson and Br ower had failed to timely file their notice of appea l. See Tex. R. App. P. 26.1(b) (to perf ect a cce lera ted appe al, notice of appea l must be filed within twenty day s after

judgme nt or order is signe d); see also Tex. Fam. Code Ann. § 109.002 (W es t 2008) (providing that appea ls in

s u it s f o r te r mi n a ti o n o f p a r e n t- c h il d r e la

ti o n s h ip a r e tr e a te d a s a c c e le r a

te d a p p e a ls )

. O n M a

y 2 6 , 2 0 1 1 , this Court issued an o rd er g ranting Giesensc hlag ’s motion to dismiss with respe ct to Br ower and dismiss ing her appea l for lack of jurisdiction. Howeve r, we denied Giesensc hlag ’s m o t i on with respe ct t o L arson, co n cl u d i n g t hat L arson’ s appea l could proceed as a restricted appeal. See Tex. R. App. P. 26.1(c) (to perf ect restric ted appea l , n o t i ce o f appea l must be filed within six

m o nths afte r judgme nt or order is signe d). Acc ording ly , the only rema ining issue is whether the

err or L arson complains of in this appea l is appar ent on the fac e of the rec ord, which consists of all paper s on file in this appeal, including the re porter’ s rec ord. See id

.

I n this restric ted appea l, L arson challeng es the trial court’s order on g rounds that the trial court err ed in (1) faili n g t o m ak e an independe nt, express finding that R.L

. was adequately

r e p r e s e n te d a

n d th a t n o a tt o r n e y a d li te m o r a

mi c u s a tt o r n e y w a s r e q

u ir e d o r , a lt e r

n a ti v e ly , c o n c lu d in g that the evidenc e supported such a finding , and (2) failing t o all ow L arson some means of participa tion in the trial terminating his pa renta l rig hts.

6Inmat e partic ipation We first addre ss whether the trial court err ed in failing to allow L arson to participa te in the hearing that resulted in the t ermination of his parenta l rig hts. L arson contends that the t rial
court e rre d in deny ing him an a lternative me ans by which to pa rticipate in the termination hea ring and, as a result, violated his constitutional due proce ss rig hts. We revie w a trial court’s decision on

a n in ma te ’ s r e q u e s t to p a r ti c ip a te , e it h e r p e r s o n a ll y o r b y a lt e r

n a ti v e me a n s , f o r a n a b u s e o f d is c r e ti o n . In re A.W

. , 302 S.W .3d 925, 928 (Tex. App.—Dal l as 2010, no pet.); see also In re M.A.R. , No

. 0 3-10-00444- CV, 2012 Tex. App. L EXI S 1484, at *11 (Tex. App.—Austin Fe b. 23, 2012, pet. denied) (mem. op.). When a trial court’s failure to act on an inmate’s reque st for participa tion, in person or by other means, eff ectively b ars the inmate from prese nting his case , the trial court abuses its discre tion. In re B.R.G

. , 48 S.W .3d 812, 820 (Tex. App.—El Paso 2001, no pet.).

All litigants who are forc ed to settle disputes throug h t h e j u d icial proce ss have a fundame nt al ri gh t under the fede ral constitut ion to be heard at a meaningf ul time in a meaningf

ul

manner . Dodd v. Dodd , 17 S

. W

. 3 d 7 1 4, 717 (Tex. App.—Houston [1st Dist.] 2000, no pet.), disapproved on other grounds , In re Z.L.T

. , 124 S.W .3d 163, 166 (Tex. 2003). L itigants may not be denied rea sonable acc ess to the courts simply beca use they are inmates. In re Z.L.T

. , 124 S.W .3d
at 166; Boulden v. Boulden , 133 S. W

. 3 d 8 8 4, 886 (Tex. App.—Dallas 2004, no pet.). Howeve r, this does not mean that an i n m at e h as an absolute rig ht to persona lly appea r in ever y proce eding

. In re Z.L.T

. , 124 S.W .3d at 166. An inmate’s rig ht to acc ess “enta ils not so much his p er s o n al prese nce as his opportunity to prese nt evidenc e o r contradict the evidence of the oppos ing party .” D o d d , 1 7 S. W. 3 d a

t 7 1 7

. T h u s , w h e n a

n in ma te r e q u e s ts a b e n c h w a

r r a n t f o r h is p e r s o n a l a

p p e a r a n c e ,

7he must include fac tual information demonstrating the nece ssity of his appea ring at the proce eding

. In re Z.L.T

. , 127 S

. W

. 3 d at 1 6 3

. Howeve r, if a pro se inmate is not allowed to participa te in a proce eding in pe rson, a trial court should ne verthe less aff ord the inmate an opportunity to proce ed by aff idavit, deposition, telephone, or other eff ective means. In re R.C.R ., 230 S.W

. 3 d 423, 427 (Tex. App.—For

t Worth 2007, no pet.); Sweed v. City of El Paso , 139 S.W .3d 450, 452 (Tex. App.—El Paso 2004, no pet.); Boulden , 133 S.W .3d at 866; s ee also In re M.A.R. , 2012 Tex. App. L EXI S 1484, at *12-13.

Giesensc hlag does not dispute that L arson had a rig ht to participa te in the termination proce eding

. I nstead, Gie senschlagcontends that L arson ne ver r equeste d to participate in the trial,

e it h e r p e r s o n a ll y o r th

r o u g h a lt e r

n a ti v e me a n s . Wh il e L a

r s o n d o e s n o t d is p u te th a

t h e n e v e r r e q

u e s te d

a bench war

rant, he contends that he made at least three specific reque sts to participa te by alterna

tive

means. Upon revie w of the entire rec ord, we ag ree that L arson re quested that he be allowed to participa te by

alterna tive means. The rec ord in this case show s t h at p ri o r to trial, L arson had filed at least five documents with the trial court protesting Giesensc hlag ’s petition, ass er ting various fac ts in opposition to Giesensc hlag ’s petition, expressing conce rn for the safe ty of R.L

. with Giesensc hlag , and informing the court that he expected to be rele ased from p ri s o n n o later than J anuar y 2011. Fur ther, in sever al of these documents, L arson specific ally asked the trial court to take actions which would potentially allow for the prese ntation of his case . First, on May 10, 2010, L arson submitt ed

a pleading to the co u rt o u t l i n i n g his basic objections to the suit and asking that the trial court “postpone these proce eding s until [he is] able to actively pursue and participa te in the proce eding s with counsel.” Ag ain, on J une 25, 2010, L arson filed with the court a document entitled “motion 8and aff

idavit to support the dismiss al and judgme nt f or the responde nt.” I n this doc ument, L arson “beg s the court to g rant a continuance so that [L arson] and [Browe r] can g ain competent counsel to repr esent them in this matter
. . . . Bo t h are without funds to do so at this time.” I n addition, just befor e the termination hear ing, Br ower informed the trial court that she had previously filed aff idavi t s on behalf of herse lf and L arson, and she reque sted a continuance so that the aff idavits

c o u ld b e u s e d in th e h e a

r in g . T h e tr ia l c o u

r t d e n ie d B r o w e r ’ s r e q

u e s t f o r a c o n ti n

u a n c e a n d e xp la in e d that the af

fidavits wer e not admissible as evide nce. I n a simil ar case , our sister cour t o f appea ls found that a trial court abused its discretion when it failed to allow a p ro s e i n mate, Robert Daug htery , to participa te in his divorce proce eding s. In re Daughtery , 42 S.W .3d 331, 336 (Tex. App.—Texarkana 2001, no pet.). Whil e Daug htery had not specific ally reque sted a bench war rant, he had reque sted in a motio n for continuance that the trial court consider “an alterna tive dispute resolution by means of a confe renc e call.” Id

. at 336. The court of appea ls held that the context of Daug htery ’s reque st established that h e w a s “ r e q

u e s ti n g a n o p p o r tu n it y to p a r ti c ip a te in th e tr ia l in s o me ma

nn e r . ” I d

. T h e c o u

r t o f a p p e a ls explained that the trial court was not limit ed to allowing Daug htery to participa te by confe renc e call and could have chosen another method to prese nt his case ; howeve r, by ref using to allow Daug htery to participate in the trial in some meaning ful way , the cour t abused its discretion. Id

. As in Daughtery , it is clea r fro m t h e contex t of L arson’ s reque st for a continuance until his rele ase, his reque st for appointment of counsel, as well as his numerous attempts to prese nt his case from prison throug h objections and aff idavits, that he soug ht to participa te in the termination proce eding in some manner . See id. ; see also Urquidez v. Urquidez , 2004 Tex. App. L EXI S 7993, * 11 (Tex. App.—El Paso Aug

. 31 2004, no pet.) (mem. op.) (holding that t ri al co urt abused its 9discretion by failing to allow inmate to participa te by alterna tive means, noting that he had proposed

sever al alterna tive means such as “appointment of an attorney ad litem or a continuance until he was rele ased from p r is o n” and “submitting four aff idavits of his testimony ”). Neve rtheless, the trial court proce eded to deter

mine L arson’ s pare ntal rig hts without him, implicitl y deny ing his req u es t fo r a continuance

. See In re A.W

. , 302 S.W .3d at 925 (holding that by signing divorce d ec re e without addre ssing reque st to appea r by bench war

rant or by alterna tive means, the trial court implicitl y denied reque sts). I n addition, the rec ord shows that none of L arson’ s aff idavit testimony or written response s wer e considere d by the trial court. Dodd , 17 S.W .3d at 717 (“Should the court find that the pro se plaintiff inmate in a civil action is not entitled to leave p ri s o n t o ap p ea r persona lly in court, then t h e p ri soner should be allowed to proce ed by aff idavit, deposition, telephone or other eff ective me ans.”) . Finally , despite deny ing L arson’ s proposed mea ns of par ticipation, nothing in the rec ord sug g ests that the court offe red L arson any other eff ective means by which to participa te. See In re A.W

. , 302 S.W .3d at 930 (explaining t h at t ri al court’s denial of request to participa te by alterna tive means is abuse of discretion unless court allows inmate t o p ro ce ed by some other eff ective me ans).

The natura l rig ht that exis ts betwee n pare nts and their children is one of constit u t i o n al dimension. Holick v. Smith , 685 S.W .2d 18, 20 (Tex. 1985); W illiams v. W

illiams , 150 S.W .3d 436, 442-43 (Tex. App.—Austin 2004, pet. denied)

. A pare nt’s interest in the acc urac y and jus tice of the decision to terminate his or her pare ntal status is, there fore , a commanding one. In re M.S. , 115 S.W .3d 534, 547 (Tex. 2003). I n this case , L arson had a rig ht to be hear d in this suit seeking to te rminate his pa renta l r ights. Whil e the trial court was not oblig ated to allow L arson to participa te in any particula r manner , it was ob l i gat ed t o all ow L arson to participa te in some

10meaning ful manner . See Daughtery , 42 S.W .3d at 336. Be cause L arson was not allowed to

participa te in any manner , his fundame ntal rig ht to pare nt his child was terminated without his input. Ba sed on this rec ord, we conclude that the trial court abused i t s d i s cr et ion by deny ing L arson’ s reque st to participa te, eff

ectively barr ing him from prese nting his case at trial. We sustain L arson’ s second point of err or on appea l , an d we rema nd this case for the trial court to decide how L arson may participa te eff

ectively

. See Tex. R. App. P. 44.1(a)(2 ); s ee also Taylor , 63 S.W .3d at 98 (holding that harm re quirement unde r rule 44.1( a) w as met whe n trial court failed to allow inmate
to participa te in any manner ). I n order to avoid issuing an advisory opinion, we do not rea ch the merits of L arson’ s first point of err or on appea l. Tex. R. App. P. 47.1 (cour ts of appea ls must hand down opinions that are as brief as possible wh i l e addre ssing those issues nece ssary to final dispositi on of appe al).

CONCLUSION

We reve rse the trial court’s judgme nt and rema nd this cause for further proce eding s consistent with this opi nion.

__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Reverse d and Remande d Filed: May

11, 2012

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