Larson v. Giesenschlag

• Decision Date: 11 May 2012
• Docket Number: No. 03–10–00627–CV.,03–10–00627–CV.
• Citation: 368 S.W.3d 792
• Parties: Ted LARSON, Appellant, v. Jack GIESENSCHLAG, Appellee.
• Court: Texas Court of Appeals

368 S.W.3d 792

Ted LARSON, Appellant,

v.Jack GIESENSCHLAG, Appellee.

No. 03–10–00627–CV.

Court of Appeals of Texas, Austin.

May 11, 2012.

Carlos Romo, appellant. Baker Botts LLP, Austin, TX, for appellant.

Deborah L. Wigington, New Braunfels, TX, for appellee.

Before Chief Justice JONES, JUSTICES PEMBERTON and HENSON.

OPINION

DIANE M. HENSON, Justice.

In this restricted appeal, appellant Ted Larson challenges the trial court's order terminating his parental rights to his child, R.L., in a private termination suit filed by R.L.'s maternal grandfather. SeeTex. Fam.Code Ann. § 101.032(a) (West 2008) (providing that suit to terminate parental rights is suit affecting parent-child relationship), § 102.003(a)(9) (West Supp. 2011) (providing that suit affecting parent-child relationship may be filed by person, other than foster parent, who has had actual care, control, and possession of child for at least six months). Larson, who was incarcerated at the time, did not appear or otherwise participate in the bench trial that resulted in the termination of his parental rights. In two points of error, Larson contends that the trial court erred in failing to make an express, independent finding that appointment of an attorney ad litem was required and that the trial court erred in failing to allow him to participate in the trial. Because we conclude that the trial court abused its discretion in denying Larson's request to participate, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

BACKGROUND

Larson is the father of R.L., born in February 2007. Larson's wife and R.L.'s mother, Amy Larson, died of pneumonia in December 2009, when R.L was just two years old.¹ At the time of his wife's death, Larson was serving a two-year sentence in the Texas Department of Criminal Justice and had thirteen months remaining on his sentence. In January 2010, Jack Giesenschlag, R.L.'s maternal grandfather, filed an original petition in a suit affecting the parent-child relationship, seeking termination of Larson's parental rights and appointment as sole managing conservator of R.L. See id. § 102.003(9). Linda Giesenschlag Brower, R.L.'s maternal grandmother and Giesenschlag's ex-wife, intervened in the suit, seeking grandparent access to or possession of R.L. See id. § 154.433 (West Supp. 2011).

On June 28, 2010, the trial court commenced a bench trial on the matter. Neither Brower nor Larson was represented by counsel, and no attorney ad litem had been appointed to represent the interests of R.L. Larson did not appear, and Brower appeared pro se. Prior to the presentation of any evidence, Brower orally requested that the trial court grant a continuance of the trial. She informed the court that she had been unsuccessfully “asking to have an attorney ad litem by CASA for [R.L.'s] benefit” and “trying very hard to find representation for the child.” She also told the court that she sought to “give [Larson], the biological father, who's incarcerated at the moment, to have pro bono legal advice to stand up for his right.”

In response, the trial court informed Brower that Larson was not entitled to a court-appointed attorney because it was “not a criminal matter” and then engaged in the following exchange with counsel for Giesenschlag:

THE COURT: [There] are only two instances, I'm aware of, if he wants to have a presence in the matter. Has he made that known to us, [counsel]?

COUNSEL: Actually, Judge, he filed some sort of pleading and in that pleading does not ask for a bench warrant, nor does he request to appear by telephone, nor does he request to appear by affidavit. He asked for the case to be postponed.

The trial court then asked Brower why she now wanted to postpone the trial. Brower responded that she had filed affidavits on behalf of herself and Larson and that she needed a two-week continuance so that she could prepare for the proceeding and so that the affidavits could be used in the hearing. Brower explained that, while she was not an attorney, she was doing “the best [she could] to stand up for [her] daughter and for [her] son-in-law's rights not to have an adoption of his child.” The trial court then denied her request for a continuance. Brower indicated that she did not want to participate in the hearing and left the courtroom.

The trial court then proceeded to hear the case on its merits. The only witness, Giesenschlag testified in support of his request for termination and introduced documentary evidence of Larson's criminal history, including a conviction for assault family violence. SeeTex. Penal Code Ann. § 22.01(b)(1) (West 2011). During the presentation of Giesenschlag's testimony, the trial court interrupted to ask Giesenschlag's counsel again about Larson:

THE COURT:.... There was no-I don't think the Court has received anything but a letter from Mr. Larson.

Did he receive notice of this hearing?

COUNSEL: Yes, he did, Your Honor.

THE COURT: Has there been a request by Mr. Larson-he's in prison at this point?

COUNSEL: He is, Your Honor.

THE COURT: Has there been a request by Mr. Larson to make an appearance in anyway, shape, or form?

COUNSEL: Only request he made was to postpone this hearing. He did not request a bench warrant, or request a phone call [nor] did he request to appear by affidavit. However, if the Court would like to use his letters and responses as evidence in this case, subject to objections or hearsay, et cetera, I would not be opposed to letting the Judge consider those for his testimony.

THE COURT: Well, I think at this point in time I'll consider them for purposes of an answer, but my question really was to the issue of whether or not there had been a request by Mr. Larson to be available in some form. You're telling me he has not.

COUNSEL: The only spot I see that he has requested at the very end he says it is Respondent's request that the Court pursue one or all of the following grant intervenor temporary sole managing conservator of the child, to postpone the proceeding until he's able to actively pursue and participate in proceedings with counsel. I would read that as a request to postpone not to be present at this hearing at this time.

At the conclusion of the trial, the trial court entered an order terminating Larson's parental rights and denying Brower grandparent access and visitation. Though no findings of fact or conclusions of law were requested or issued, the trial court's order recites that the court found, by clear and convincing evidence, that Larson (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child, and (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. SeeTex. Fam.Code Ann. § 161.001(1)(D), (E) (West Supp. 2011). In addition, the order states that “[t]he court [found] that Jack Giesenschlag has no adverse interest to the child the subject of this suit and would adequately represent the interest of the child. No attorney ad litem or amicus attorney was necessary, and none was appointed.” Id. § 107.021(a–1) (West 2008) (appointment of attorney ad litem is mandatory unless “the court finds that the interests of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child's interests”). This appeal followed.

DISCUSSION

Restricted appeal

A restricted appeal is a direct attack on the judgment and affords a party who did not participate at trial with an opportunity to correct error in the judgment. Appellate review of a restricted appeal is the same scope of review as an ordinary appeal, that is, it is a review of the entire case. Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). In order to prevail on a restricted appeal, the appellant must show that (1) he filed a notice of appeal within six months of the date the judgment was signed, (2) he was a party to the underlying lawsuit, (3) he did not participate in the hearing that resulted in the judgment or timely file any post-judgment motions or requests for findings of fact or conclusions of law, and (4) error is apparent on the face of the record Id.

In this case, Larson and Brower filed a pro se notice of appeal on September 3, 2010, more than two months after the trial court entered its order terminating Larson's parental rights and denying Brower grandparent access. Giesenschlag then moved to dismiss the appeal on the ground that Larson and Brower had failed to timely file their notice of appeal. See Tex.R.App. P. 26.1(b) (to perfect accelerated appeal, notice of appeal must be filed within twenty days after judgment or order is signed); see alsoTex. Fam.Code Ann. § 109.002 (West 2008) (providing that appeals in suits for termination of parent-child relationship are treated as accelerated appeals). On May 26, 2011, this Court issued an order granting Giesenschlag's motion to dismiss with respect to Brower and dismissing her appeal for lack of jurisdiction. However, we denied Giesenschlag's motion with respect to Larson, concluding that Larson's appeal could proceed as a restricted appeal. See Tex.R.App. P. 26.1(c) (to perfect restricted appeal, notice of appeal must be filed within six months after judgment or order is signed). Accordingly, the only remaining issue is whether the error Larson complains of in this appeal is apparent on the face of the record, which consists of all papers on file in this appeal, including the reporter's record. See id.

In this restricted appeal, Larson challenges the trial court's order on grounds that the trial court erred in (1) failing to make an independent, express finding that R.L. was adequately represented and that no attorney ad litem or amicus attorney was required or, alternatively, concluding that the evidence supported such a finding, and (2)...