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Opinion filed July 30,
2009

In The

Eleventh Court
of Appeals

__________

No.
11-08-00294-CV

_________

IN THE INTEREST OF D.H., S.H., & B.H., CHILDREN

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 6471-CX

M E M O R A N D U M   O P I N I O N

In this appeal, appellant challenges the termination of
his parental rights to his minor children, D.H., S.H., and B.H.  In
doing so, he presents four issues that, he asserts, reveal the trial court
reversibly erred in terminating his parental rights.  In those
issues, he contends that (1) the evidence was legally and factually
insufficient to support the court=s finding that he had
knowingly engaged in criminal conduct that resulted in his conviction of
an offense and confinement or imprisonment and inability to care for the
children for not less than two years from the date of the filing of the
petition, (2) the evidence was legally and factually insufficient to
support the court=s finding that the
termination of the parent-child relationship between himself and the
children the subject of this suit would be in the best interest of the
children, (3) the court abused its discretion in denying his application
for a bench warrant to allow him to be present in the trial court at the
time of the hearing on the termination proceeding, and (4) the denial of
his application for a bench warrant to be present at trial constituted a
denial of the due process guaranteed him under the United States and Texas
Constitutions.  Disagreeing that reversible error is shown, we
affirm.

In
any consideration of the termination of parental rights, the reviewing
court must bear in mind that the natural right existing between a parent
and child is of constitutional dimension and the involuntary termination
of parental rights interferes with a fundamental constitutional
right.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).  Consequently,
termination proceedings should be strictly construed in favor of
preserving the relationship.  Holick, 685 S.W.2d at 20.
Parental rights are so important that, for a trial court to terminate
those rights, there must be clear and convincing evidence that establishes
one statutory ground for the termination and that the termination is in
the child=s best
interest.  Tex. Fam. Code
Ann. '
161.001 (Vernon 2008); Holick, 685 S.W.2d at 20.  The A[c]lear and
convincing evidence@ requirement  is
statutorily defined as Athe measure or degree
of proof that will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be
established.@  Tex. Fam. Code Ann. ' 101.007 (Vernon
2008).

In cases such as this one, in which both the legal and
factual sufficiency of the evidence must be reviewed, there is a fine line
in distinguishing between the two questions, but a different analysis must
be applied in determining each question.  In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002).  In both instances, we ask whether the
evidence is such that a factfinder could reasonably form a firm belief or
conviction about the truth of the matter on which the State bears the
burden of proof.  Id. at 265-66.  However, as we have
noted, the body of evidence is approached differently in conducting the
legal and factual sufficiency reviews.

When reviewing legal sufficiency, we traditionally
look at the evidence in the light most favorable to the finding.  In
the clear-and-convincing context, this means we must assume that the
factfinder resolved disputed facts in favor of its finding, if a
reasonable factfinder could do so.  Id. at 266.
We must disregard all evidence that a reasonable factfinder could have
disbelieved or found incredible.  Id.  We may not,
however, disregard undisputed facts that do not support the finding.
Id.

When reviewing factual sufficiency, we must give Adue
consideration@
to any evidence the factfinder could reasonably have found to be clear and
convincing.  Id. This means that we must look at the disputed
evidence and determine if a reasonable factfinder could have resolved the
evidence in favor of the finding.  The evidence is factually
insufficient if, in light of the entire record, the disputed evidence that
a reasonable factfinder could not have credited in favor of the
finding is so significant that the factfinder could not have reasonably
formed a firm belief or conviction.  Id.

Because of the essential similarity of the matters
presented by appellant=s first two issues,
we will consider them together. Appellant=s parental rights
were terminated under Section 161.001(1)(Q).   That
subsection allows termination of parental rights when clear and convincing
evidence shows that a parent Aknowingly engaged in
criminal conduct that has resulted in the parent=s:  (i)
conviction of an offense; and (ii) confinement or imprisonment and
inability to care for the child for not less than two years from the date
of filing the petition.@
Section 161.001(1)(Q).  Subsection Q is applied
prospectively.  See In re A.V., 113 S.W.3d 355, 360 (Tex.
2003).  Even so, incarceration for the requisite period by itself
does not justify termination.  In re Caballero, 53 S.W.3d 391,
398 (Tex. App.CAmarillo 2001, pet.
denied).  The evidence must also show the parent=s inability to care
for the child for the two years.  In re B.M.R., 84 S.W.3d 814,
818 (Tex. App.CHouston [1st. Dist]
2002, no pet.).  A factor to be considered when deciding if there is
an inability to provide care is the availability of financial and
emotional support from the incarcerated parent.  Id.

In support of its petition seeking termination, the
State presented the testimony of Elizabeth Pallarez, an employee of the
Department of Family and Protective Services (the Department).
Pallarez averred that she became the assigned caseworker with the children
in June 2007.  She said that appellant had been incarcerated since
March 31, 2006, after having been convicted on two counts of
robbery.  His projected release date would be on March 13,
2030.  She stated that she had reviewed the prior history of
appellant as revealed by the Department=s file; and nothing
there showed that appellant had been involved with the children, had
supported them, or had a bond with them.  She testified that
appellant had neither kept in regular contact with the Department nor
actively worked the parts of a service plan the Department had forwarded
to him in prison, a part of which requested him to maintain regular
contact with the Department.

Pallarez averred that she had been sending appellant
monthly communications regarding the progress of the children but that
appellant had never responded to those reports.  She also noted that,
although she believed the children knew who their father was, they had
never asked for him and, to her knowledge, they had no bond with
him.  She further reported that they were Adoing very good@ in their current
placement and knew the couple as their family and that the couple hoped to
adopt the children.  She commented that the children came into
supervision because of Aneglectful
supervision, mom was a prostitute, and there [were] drugs in the home and
domestic violence in the home.@

Under cross-examination, she said that she was familiar
with the fact that an affidavit filed with the papers in the case averred
that the children had lived in ten different places in the last five years
and that appellant was not involved with the children in any of those
moves.  She admitted that appellant=s release date was
based upon his serving the entire sentence and that there was a
possibility he would be paroled although he had been denied parole
once.  She also admitted that she did not know if appellant actually
knew where the children were during the period of time their mother was
moving them around.  She agreed that appellant had no ability to pay
any kind of child support because of his incarceration.  She also did
not personally know of any parenting or counseling classes available to
appellant in prison, although the chaplain at the prison had orally told
her that appellant would not attend counseling classes.

The witness said that the couple with whom the children
were placed had advised her that appellant had not contacted the
children.  She also admitted that, because of his incarceration,
Ain some
senses,@ he had
been unable to complete the service plan submitted by the Department to
him and that she did not know if he even knew what his service plan
was.  She also admitted that she did not personally know what kind of
relationship appellant may have had with the children or his ability to
support them in earlier years prior to his incarceration.

When questioned by the attorney ad litem, Pallarez
testified that the children were doing well in school, they were healthy
and participated in school activities, and they had bonded with the couple
in whose home they were placed and who hoped to adopt them.  She also
averred that appellant was not making any effort to communicate with the
children or their placement couple and that there was no indication that
he had any bond with the children.

Appellant, through his attorney, submitted four letters
B three from him
and one from a friend of his.  The evidence is undisputed that
appellant=s
scheduled release date was March 13, 2030.  In a letter dated April
13, 2008, appellant admitted that he would not be eligible for parole for
two more years from that date.  He had been denied parole in December
2007.  Assuming that appellant=s proffered testimony
in his letters concerning the possibility of parole is relevant, even if
he was successful in obtaining parole the next time he was eligible, it
would be more than two years from the date of the filing of the petition
to terminate.  Additionally, parole decisions are inherently
speculative and even though appellant might have taken positive steps to
improve his chances of obtaining parole and while all inmates doubtless
hope such steps may improve their odds for a favorable decision, the
courts have noted that such matters rest entirely within the parole
board=s
discretion.  In re H.R.M., 209 S.W.3d 105, 109 (Tex.
2006).

It is undisputed that appellant did not arrange for a
caregiver for his children before going to prison.  In his letters,
appellant stated that the children=s mother was an unfit
mother and that he wanted to keep them away from her, but he did nothing
to protect them while he was still out of prison and, indeed, left them in
her care when he went to prison.  Moreover, although appellant stated
in his letters that it was because of his incarceration he could not
support his children or take care of them, the evidence was sufficient to
justify the trial court in determining that he had neither supported the
children nor been involved in their lives during the time since the
Department had become involved in 2001.  In sum, the evidence is
sufficient to justify the trial court in its evident conclusion that
appellant was unable to care for the children while he was
incarcerated.

Having reached that conclusion, it now becomes our task to
determine if the evidence is sufficient to sustain a conclusion that the
termination of appellant=s parental rights is
in the best interest of the children.  In making that decision, there
are numerous factors to be considered.  Among others, the trier of
fact may consider the desires of the children, the present and future
emotional and physical needs of the children, the present and future
emotional and physical danger to the children, the parental abilities of
the persons who may be seeking custody, the programs available to assist
those seeking custody, and any excuse for the acts or omissions of the
parents.  See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976).  All of those factors are directed at the best interest of the
children, not that of the parent.  Dupree v. Tex. Dep=t of Protective &
Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.CDallas 1995, no
writ).

Although appellant does claim a relationship, the
testimony shows that the children have not bonded with him and, as he
admits, do not reply to his letters.  The evidence shows that, for a
majority of their lives, the children were allowed to stay with their
mother, who appellant now admits was not a proper custodian.  The
testimony also shows that the children now are happy and well-adjusted,
are in a stable environment, and are placed with a relative who plans to
adopt them.  Considered in its entirety, we can only conclude that
the trial evidence was sufficient to show clearly and convincingly that
appellant is not able to meet the emotional and physical needs of the
children and was also sufficient to clearly and convincingly support the
trial court=s
decision to terminate appellant=s parental
rights.  Appellant=s first two issues
are overruled.

It now becomes our task to consider appellant=s third and fourth
issues.  As we noted above, in those issues, he asserts that the
trial court abused its discretion in denying a bench warrant to allow his
in-court presence during the trial and that, by denying the bench warrant,
the trial court denied him the due process to which he was entitled under
the United States and Texas
Constitutions.
In the seminal case of In re
Z.L.T., 124 S.W.3d 163 (Tex. 2003), the court had occasion to
explicate the factors to be considered in determining whether a trial
court reversibly erred in refusing to grant a  bench warrant to bring
a penal inmate to the hearing of a parental termination proceeding.
In some detail, the high court explained that, although an inmate cannot
be denied access to the courts simply because he is an inmate, an inmate
does not have an absolute right to appear in person in every court
proceeding.  Rather, that right to appear must be weighed against the
protection of our correctional system=s integrity.
124 S.W.3d at 165.  Factors to be weighed in determining whether a
bench warrant should be issued include the cost and inconvenience of
transporting the prisoner to the courtroom; the security risk the prisoner
presents to the court and public; whether the prisoner=s claims are
substantial; whether the matter=s resolution can
reasonably be delayed until the prisoner=s release; whether
the prisoner can and will offer admissible, non-cumulative testimony that
cannot be effectively presented by deposition, telephone, or some other
means; whether the prisoner=s presence is
important in judging his demeanor and credibility; whether the trial is to
the court or a jury; and the prisoner=s probability of
succeeding on the merits.  Id. at 165-66.  The trial
court=s ruling
on the denial of a bench warrant is reviewed under an  abuse of
discretion standard.  Id. at 165.    A trial
court abuses its discretion if it acts arbitrarily and unreasonably or
without reference to guiding principles.  Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  We are also
reminded that, when reviewing matters related to the trial court=s discretion, we may
not substitute our judgment for that of the trial court.  Bowie
Mem=l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

The trial court allowed appellant, through his attorney,
to submit anything he wished the court to consider.  He submitted
four letters B
three from him and one from his friend.  In his letters, he iterated
in detail and in a comprehensive manner his contentions and his past
history as well as the reasons for that history and the matters he wished
the court to consider in making its decision.

The undisputed evidence showed that appellant=s presently scheduled
release date is March 13, 2030.  He admitted in his April 13,
2008 letter that he did not expect another parole hearing for two more
years.  Although he raised the possibility of parole, the granting of
such parole is so speculative that the trial court would be justified in
concluding that appellant=s release was not
probable in the near future.  Additionally, appellant=s letters indicated
that he had no ability to care for the children while he was incarcerated,
and he gave no indication that he had made arrangements for anyone to care
for the children while he was incarcerated.  He admitted that the
present caretakers of the children were good but asserted that they should
only be given temporary custody.  The trial court could reasonably
assume that appellant=s presence at the
hearing would only result in testimony similar to that he had given in
writing.  The record shows that appellant was represented by counsel
at the hearing and that the State=s testimony was
thoroughly and ably tested by cross-examination and by
argument.

The trial court stated on the record its reasons for
denying the bench warrant.  It specifically found that (1) the cost
and inconvenience to the court would be great, (2) appellant would be a
security risk, (3) the resolution of the grounds alleged did not require
appellant=s
presence to witness his demeanor or credibility, and (4) the time of
appellant=s
release was not imminent.

Our review of the record shows that the trial court did
not abuse its discretion in making its ruling and that the evidence was
both legally and factually sufficient to support the termination of
appellant=s
parental rights.  Therefore, appellant=s third and fourth
issues are overruled.

In sum, there being no reversible error, the trial
court=s order
must be, and is hereby, affirmed.

JOHN T. BOYD

SENIOR JUSTICE

July 30,
2009

Panel consists of:
Wright, C.J.,

McCall, J., and Boyd,
S.J.[1]

[1]John T. Boyd, Retired Chief Justice, Court of
Appeals, 7th District of Texas at Amarillo, sitting by
assignment.