Opinion filed May 15 , 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00 3 26

- C V

__________ IN THE INTEREST OF K.D

. , A CHILD

On Appeal from the 266 t h District Court

Er ath County, Texas
Trial Court Cause No. CV32067

M E M O R A N D U M O P I N I O N This is an appe al from an order in which the trial court terminat ed the parental rights of the father of K.D

. K.D.’s father timely filed an appeal. In two issue s on appeal, he challenges the trial court’s denial of an application for a bench warrant and the trial court’s denial of a motion to dismiss the attorney ad litem’s cross

petition s

. We affirm

. I. Background Facts To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in2

Section 161.001(1)(A)

– (T) and that termination is in the best interest of the child.
T EX

. F AM

. C ODE A

NN . § 161.001 (Wes t 2014) . In this case, the trial court found that Appellant had committed five of the acts listed in Section 161.001(1)

— those found in subsections (D), (E), (N), (O), and (Q). Specifically, the trial court found that Appellant had knowingly placed or kno wingly allowed the child to remain in conditions or surroundings that endangered the child’s physical or emotional well

being , that Appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child ’s physical or emotional
well

- being , that Appellant had constructively abandoned the child , that Appellant had failed to comply with the provisions of a court order that specifically established the actions necessary for h im to obtain the return of the child , and that Appellant knowingly engaged in criminal conduct that resulted in a conviction and
confinement that has caused him to be unable to care for the child for not less than two years from the date the petition was filed. The trial court also fou nd, pursuant to Section 161.001(2), that termination of Appellant’s parental rights would be in the
best interest of the child. Appellant does not c hallenge any of these findings.
II. Analysis
A. Due Process: Denial of Bench Warrant In his first issue, Appel lant contends that the trial court a bused its discretion and violated Appellant’s right to due process when it summarily denied his application for a bench warrant. The proceedings in a suit to termina te parental rights must comport with procedural due p rocess. In re B.L.D. , 113 S.W.3d 340, 351

– 52 (Tex. 2003). Procedural due process requires, at a minimum, notice and an opportunity t o be heard at a meaningful time and in a meaningful manner. Tex. Workers ’ Comp. Comm ’ n v. Patient Advocates of Tex. , 136 S.W.3d 643, 658 (Tex. 2004) (citing Mathews v. Eldridge , 424 U.S. 319, 333 (1976))

. Thre e factors to be consider ed in determining3

what process is due in a particular proceeding are (1) the private int erest affected by the proceeding, (2) the risk of an er roneous deprivation of that interest due to the procedures used , and (3 ) the countervailing governmental interest

. Mathews , 424
U.S. at 335. The private interest affected by a termination case is the parent ’ s fundamental liberty interest in the care, cus tody, and control of his child. In re
B.L.D. , 113 S.W.3d at 352. The governmental interest s in a termination proceeding include promoting the best interest of the child and bring ing the case to an end so
that a child is not left in limbo. Id. at 353. The risk of erroneously depriving a parent of his interest in the care, custody, and control of his child could be affected by the refusal to allow the parent to appear in person at trial. A l i tigant 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). H owever , an inmate does not have an absolute right to appear in person in every court proceeding , including a suit affecting the i nmate’s parental rights

. Id. An inmate ’ s right of access to the courts must be weighed against the protection of the correctional system ’ s integrity. Id. W hen considering an inmate ’ s request for a bench warrant , Texas courts generally consider the following factors: whether transporting the inmate to
the courtroom would be cost ly and inconvenien t ; whether the inmate presents a security threat ; whether the inmate’ s claims are substantial; whether the resolution
of the matter can reasonably be delayed until the inmate’ s release; whether the
inmate can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; whether the
inmate’ s presence is important in judging his demeanor and credibility; whet her the trial is to the court or a jury; and whether the inmate is likely to succeed on the merits

. Id. at 165

– 66. The inmate has the burden to establish his right to relief. Id. at 166. Appellant filed an application for a bench warrant on April 9, 201 4, to secure his presence at trial. The record shows that a trial date of April 15, 2014, had been4

set since February 4, 2014. In his application, Appellant asserted that his presence at trial was necessary and vital to his defense. The trial court conv ened on April 15, denied Appellant’s application for a bench warrant, and postponed the trial date to May 1 to give Appellant and his attorney “plenty of opportunity to submit [Appellant’s] testimony by way of affidavit.” At trial, Appellant’s attorney of fered six exhibits into evidence. All six were admitted without objection. Three of the exhibits were affidavits that had not yet been signed by Appellant. Two of the exhibits were handwritten documents in which Appellant explained his position and

pres ented evidence, including a certificate of completion for an anger conflict resolution course and a certificate of completion for a men’s life

- skills course. The
other exhibit contained a recent picture of Appellant. At the time of the final hearing, Appe llant was incarcerated in Lubbock County. His attorney explained that he had obtained a narrative from Appellant and had prepared affidavits using Appellant’s narrative. The affidavits were sent to Appellant to sign, but because of a delay caused by Appe llant’s transfer from Bell County to Lubbock County, Appellant’s attorney had not received the signed copies at the time of the May 1 trial date. Appellant’s attorney informed the court that he had talked to Appellant and that Appellant said he had signed the affidavits and had
had them notarized. T he trial court permitted the affidavits to be admitted into evidence based upon Appellant’s attorney’s representations that the affidavits had been signed by Appell ant and notarized.
Our review of the record re veals that Appellant was provided with notice and an opportunity to be heard at a meaningful time and in a meaningful manner

. Appellant did not meet his burden of establish ing the necessity of a bench warrant. Furthermore, a lthough A ppellant was not able to appear in person, the trial court provid ed a meaningful method whereby A ppellant could make his position known
to the trial court. T he risk of an erroneous deprivation of Appellant’s interest was5

minimized by the procedures used a s a substitution for his personal appearance. We hold that, when it overruled Appellant’s request for a bench warrant, the trial court did not abuse its discretion or violate Appellant’s right to due process

. Appell ant’s
first issue is overruled.
B. Denial of Motion to Dismiss In his second issue, Appellant complains that the trial court abused its
discretion when it denied Appellant’s motion to dismiss the attorney ad litem’s cross

petitions , in which the attorney ad litem sought to terminate the parent

- chi ld relationship between Appellant and K.D . Appellant’s complaint is based upon the newly appointed guardian ad litem’s failure to interview Appellant and timely provide Appellant with a copy of the guardian ad litem’s report. See F AM

. § 107.002(b), (g). We note that the child was not without a guardian ad litem prior to the appointment of the substitute guardian ad litem ; the attorney ad litem had previously been appointed in the dual capacity of attorney ad litem and guardian ad litem as permitted by Se ction 107.0125 of the Family Code. Appellant has cited no authority, and we can find none, to support hi s contention that any failure on the part of the guardian ad litem to comply with Section 107.002(b) or (g) constitutes grounds for the dismissal of th e petition to terminate his parental rights

. We overrule Appellant’s second issue.
III. This Court’s Ruling
We affirm t he order of the trial court

.

MIKE WILLSON May 15 , 2015 JUSTICE
Panel consists of: Wright, C.J., Willson , J., and Bailey

, J.