In the Interest of T.L.B., No. 07-07-0349-CV (Tex. App. 12/17/2008)

• Court: Texas Court of Appeals
• Writing for the Court: James T. Campbell
• Decision Date: 17 December 2008
• Docket Number: No. 07-07-0349-CV.,07-07-0349-CV.
• Citation: In the Interest of T.L.B., No. 07-07-0349-CV (Tex. App. 12/17/2008), No. 07-07-0349-CV. (Tex. App. Dec 17, 2008)
• Parties: IN THE INTEREST OF T.L.B., A Child.

Page 1

IN THE INTEREST OF T.L.B., A Child.

No. 07-07-0349-CV.

Court of Appeals of Texas, Seventh District, Amarillo.

December 17, 2008.

Appeal from the County Court at Law No. 2 of Potter County, No. 72,293, Honorable Pamela Sirmon, Judge.

Panel B: Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

JAMES T. CAMPBELL, Justice.

Appellant Levohn H. Brown, an inmate in the Indiana Department of Correction appearing pro se, appeals the judgment of the trial court terminating his parental rights to his son T.L.B. Finding the trial court abused its discretion by denying Brown an opportunity to participate in the termination hearing and the error harmful, we will reverse and remand.

Background

T.L.B. and M.L.B. were the children born to the marriage of Brown and appellee Shanda L. Vance. On their divorce in 1998, the court appointed Brown and Vance joint managing conservators of the two children. A 1999 modification order gave Brown the right to determine the primary residence of the children. Both children were living with Brown in Indiana in February 2000 when M.L.B. died as a result of injuries caused by Brown. He was convicted of her murder and incarcerated by the Indiana Department Correction at its Pendleton, Indiana facility. T.L.B. has lived with Vance since July 2000.

This is Brown's second appeal of an order of the trial court terminating his parental relationship with T.L.B. By petition filed in 2006, Vance sought termination of the parent-child relationship between Brown and T.L.B. on the ground that Brown had "been convicted for being criminally responsible for the death of a child, his daughter, under section 19.03 of the Texas Penal Code."¹ Following a hearing in August 2006, the trial court signed a judgment terminating Brown's parental rights to T.L.B. The order recited Brown "did not appear and wholly made default."

On Brown's appeal, we reversed the 2006 termination order, finding that he was denied notice of the hearing and an opportunity to be heard. In re T.L.B., No. 07-06-0371, 2007 WL 763802, 2007 Tex.App. Lexis 1991 (Tex.App.-Amarillo, March 14, 2007, no pet.) (mem. op.). Our opinion remanded the cause "for further proceedings affording Brown a reasonable opportunity to be heard on the merits of the termination proceeding." 2007 WL 763802, at *3.

Retrial was set for June 13, 2007. The clerk's record before us on this second appeal does not contain notice to Brown of the date for retrial but, in a document entitled "Motion for Hearing by Video Teleconference" filed by Brown on May 14, 2007, he acknowledged awareness of the date. By his motion, Brown also stated his desire to participate in the hearing.²

Brown did not personally appear at the hearing nor did he appear by attorney.³ Vance was the only witness. Questioned by her attorney and the attorney ad litem for T.L.B., Vance agreed that it was in the best interests of T.L.B. to terminate Brown's parental rights and change T.L.B.'s surname to Vance; T.L.B. was present "when his younger sister was abused and subsequently murdered"; T.L.B. desired to sever all ties with Brown; Brown was serving a life sentence without parole in an Indiana prison; and Brown murdered M.L.B. At the conclusion of Vance's testimony, the court admitted as petitioner's exhibit one, a certified copy of a "Chronological Case Summary" from the Huntington County, Indiana circuit court in a case entitled, State v. Levohn Harrison Brown. The document, which appears in the form of a printed docket sheet, chronicles judicial events in the Indiana murder prosecution of Brown up to his adjudication of guilt following the jury's verdict on March 15, 2001.

On receipt of petitioner's exhibit one, the court rendered judgment terminating the parental rights of Brown to T.L.B. The court's judgment of termination, signed on June 13, recites that Brown "made a general appearance and was duly notified of trial but failed to appear and defaulted." Brown timely filed notice of appeal.

Issues

Brown raises five issues on appeal: (1) he did not receive a copy of this court's "order" reversing and remanding the case following the first trial in 2006; (2) the trial court made no reply to his motion for hearing by video teleconference and to represent himself at trial; (3) the trial court was prejudiced by a letter in the clerk's record from Vance's fiancé; (4) the trial court clerk did not respond to a letter from Brown inquiring of the status of his motion for hearing by video teleconference; and (5) Brown was denied due process and due course of law.

Discussion

We begin with Brown's second and fifth issues, and will discuss them jointly. Liberally construing his brief,⁴ we interpret Brown's complaint to be that the trial court erroneously denied his motion for hearing by video teleconference and to participate at the hearing, and in so doing denied him due process of law under the United States Constitution⁵ and due course of law under the Texas Constitution.⁶

We review a trial court's determination to deny a prisoner's request to appear at a termination hearing for abuse of discretion. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (addressing a bench warrant request). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Discretion is not abused, however, simply because a trial court decided an issue within its discretion differently than would the reviewing appellate court. Id. at 242.

By his May 14 motion, Brown requested the hearing of Vance's petition for termination be conducted by video teleconference and that he be permitted to participate in the hearing. The motion contained a proper certificate of service indicating service by mail on counsel for Vance. In his brief in this court, Brown contends by denying his requested appearance by video teleconference he was denied the right to cross-examine Vance and any witnesses she called.

Prior to taking evidence at the June 13 hearing, the court noted Brown's absence and inquired about his notice of the hearing. It then instructed its bailiff to call Brown's name three times in the hall. The court then noted Brown's motion and without argument or discussion ruled: "There is a motion for hearing by video teleconference that was filed by Levohn Brown May 14th of '07. An order was not included with the motion but the motion is denied."

In analyzing a claim of deprivation of procedural due process, we apply a two-part test: (1) whether the complaining party has a liberty or property interest entitled to protection; and (2) if so, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982); Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). "[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377-78, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971).⁷ Status as a prison inmate does not strip a person of his constitutional right of reasonable access to the courts. See Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (prison inmates may petition government for redress of grievances which includes reasonable access to courts). A parent's "right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (internal quotation marks and citation omitted). Here, Brown possessed an interest entitled to protection.

To assess what process was Brown due, we weigh three factors: (1) the private interest affected by the proceeding or official action; (2) the countervailing governmental interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of that interest due to the procedures used. In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)); see In re J.O.A., 262 S.W.3d 7, 20-21 (Tex.App.-Amarillo 2008, pet. granted).

The first factor carries great weight in this case. A termination decree is "complete, final, irrevocable [and] divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit." Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); Tex. Fam. Code Ann. § 161.206(b) (Vernon Supp. 2008) (child retains right to inherit from and through the terminated parent unless court orders otherwise). "A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." Santosky, 455 U.S. at 758-59, 102 S.Ct. at 1397 (termination sought by state); cf. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky in private termination action for requirement of proof by clear and convincing evidence). Moreover, the private interest encompasses the child as well. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). For example, essential to termination under section 161.001 is proof by clear and convincing evidence that the decision is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1) & (2) (Vernon Supp. 2008). Brown sought participation in the hearing but under the circumstances leave rested exclusively with the trial court.

In a proceeding for termination of the parent-child relationship, the State has a compelling parens patriae interest in preserving and promoting the welfare of the child. Rodarte v. Cox, 828 S.W.2d 65, 79 (Tex.App.-Tyler 1991, writ denied) (citing Santosky, 455...