E. N. v. Tex. Dep't of Family & Protective Servs.
| Decision Date | 17 June 2021 |
| Docket Number | NO. 03-21-00014-CV,03-21-00014-CV |
| Parties | E. N., Appellant v. Texas Department of Family and Protective Services, Appellee |
| Court | Court of Appeals of Texas |
FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-007423, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
E.N. (Father) appeals from a final judgment terminating his parental rights to his son, Charles.1 He argues that the district court abused its discretion by denying his motion for a continuance until an in-person trial was possible and that insufficient evidence supports the jury's findings. We will affirm.
BACKGROUND2
Father began a relationship with V.N. (Mother) when he was thirty-four and she was sixteen years old. Mother moved in with him when she was seventeen and refused to return to her parents' home. The Department of Family and Protective Services obtained temporaryconservatorship over her, but the record reflects no further developments in that case before Mother reached the age of majority. Mother and Father eventually married, and Charles was born in February 2014. Approximately three months after Charles's birth, Father was convicted and incarcerated on federal charges of manufacturing and selling cocaine. Mother, Charles, and John—Charles's half-brother—moved in with Mother's parents (Grandparents).3
In July 2018, the Department opened an investigation when police found marijuana in Mother's vehicle during a traffic stop with one of her children present. In the following four months, the Department received additional referrals alleging that Mother had left one of her children in the care of a person smoking marijuana and, on two occasions, injured Charles while disciplining him. Mother was hospitalized for suicidal ideation in November 2018, and the Department obtained temporary custody of Charles and John shortly thereafter. The Department filed this suit affecting the parent-child relationship and sought to terminate the rights of both parents. Charles and John remained in the care of Grandparents.
Mother subsequently executed a mediated settlement agreement consenting to termination of her parental rights so that Grandparents could adopt the children. The district court set the Department's case against Father for a jury trial in December 2020, which was to be conducted by remote videoconference because of the COVID-19 pandemic. Father filed written objections arguing that a remote jury trial violated his due process rights and moved for a continuance until an in-person trial was possible. The district court overruled Father's objections and denied the motion.
Trial began on December 15, 2020, over Father's renewed objections. Father participated by videoconference from a federal penitentiary in South Carolina. The jury heard testimony from the Department caseworker, Grandparents, Charles's counselor, Father, Father's sister (Aunt), and Charles's guardian ad litem. Father denied parentage of John and argued against severing his relationship with Charles. He acknowledged that he will likely be imprisoned until 2025 and agreed that Charles should remain in Grandparents' care. Grandparents testified that they intend to adopt both children if Father's and Mother's rights are terminated. The Department's caseworker and the guardian ad litem testified in support of their plans.
After the close of evidence, the district court granted a directed verdict that Father is not John's parent. The remainder of the case was submitted to the jury. With respect to Charles, the jury found that the Department had proven three predicate grounds for termination and that termination was in Charles's best interest. See Tex. Fam. Code § 161.001(b)(1)(E), (N), (Q), (b)(2). Consistent with the settlement agreement, the jury found that the Department had proven that Mother's actions or inactions satisfied one statutory ground for termination with respect to each child and that termination is in the children's best interest. Father timely appealed.
CONTINUANCE
Father initially argues that the district court abused its discretion by denying his motion for a continuance because a remote jury trial violates his due process rights. The Department responds that there was no abuse of discretion under the circumstances. We agree with the Department.
We review the denial of a motion for a continuance for an abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A trial court "abuses its discretion if it acts without reference to guiding rules and principles such that the ruling is arbitrary or unreasonable." Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020). In addition, a trial court abuses its discretion "if it clearly fails to correctly analyze or apply the law." In re State, 556 S.W.3d 821, 827 (Tex. 2018) (orig. proceeding) (citing In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)).
Trial courts may not grant a continuance "except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251. Father argues that the law required a continuance here because holding a remote jury trial would violate his due process rights. "Due process at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Mosley v. Texas Health & Human Servs. Comm'n, 593 S.W.3d 250, 265 (Tex. 2019) (citing University of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex. 1995)). We measure what process is due under a "flexible standard" that depends "on the practical requirements of the circumstances." Id. In conducting this analysis, we weigh (1) the private interests at stake; (2) the risk of an erroneous deprivation through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See id.; In re State, 556 S.W.3d at 829.
At the time the district court set the Department's case for trial, courts were subject to several emergency orders issued by the Supreme Court of Texas regulating court proceedings during the COVID-19 pandemic. The relevant order provided:
[A]ll courts in Texas may in any case, civil or criminal . . . without a participant's consent . . . allow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means[.]"
Twenty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 135, 135 (Tex. 2020) (order).4 The order allowed courts to conduct remote jury proceedings under certain circumstances. "In criminal cases where confinement in jail or prison is a potential punishment," remote jury proceedings could "not be conducted without appropriate waivers and consent obtained on the record from the defendant and prosecutor." Id. at 137. Remote jury proceedings were permissible "[i]n all other cases" if the court had "considered on the record any objection or motion related to proceeding" with a remote trial. See id. at 136-37.
Father argues that due process requires treating parties facing termination of their parental rights the same as those facing loss of liberty. Yet the right of criminal defendants to be physically present stems from the Sixth Amendment's Confrontation Clause, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend VI. The right of confrontation includes "the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, absent a waiver of that right through defendant's own conduct." Scott v. State, 555 S.W.3d 116, 125 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd) (citing Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985)). TheConfrontation Clause does not apply to parental-termination cases, which are civil proceedings. See J.T. v. Texas Dep't of Fam. & Protective Servs., No. 03-15-00286-CV, 2015 WL 6459607, at *4 n.4 (Tex. App.—Austin Oct. 23, 2015, no pet.) (mem. op.) ( that Sixth Amendment "applies only to 'criminal prosecutions,' and therefore does not apply to parental-rights-termination cases, which are civil proceedings" (internal citation omitted)); see also In re A.V., 113 S.W.3d 355, 360 (Tex. 2003) (). Generally, test discussed above. In re M-I L.L.C., 505 S.W.3d 569, 576 (Tex. 2016) (orig. proceeding) (internal citation omitted); see, e.g., In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003) (); In re T.B., 594 S.W.3d 773, 776-77 (Tex. App.—Waco 2019, no pet.) (applying same analysis in context of person removed from mental-health commitment proceeding).
However, Father is correct that the private interest at stake in a termination proceeding is entitled to heightened consideration. "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,'" In re D.S., 602 S.W.3d 504, 518 (Tex. 2020) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)), and is "consequently governed by special rules," In re E.R., 385 S.W.3d 552, 555 (Tex. 2012). Due process requires proof by "clear and convincing evidence" that termination is warranted and in the...
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