In the INTEREST OF D.W., a Child
498 S.W.3d 100
Tex. App.2016Background
- Dept. filed suit June 2014 seeking temporary conservatorship and, if reunification failed, termination of Mother (C.E.) and Father (S.W.) rights to D.W., born 2014; child placed in foster care and later with paternal uncle.
- Allegations included parents' meth involvement, Mother arrested in Galveston then extradited to Pennsylvania; Father later extradited to Pennsylvania on drug charges.
- Trial originally set May 2015; continuance at Mother’s request moved trial to Nov. 30, 2015 to avoid statutory dismissal deadline under Tex. Fam. Code §263.401.
- Mother sought a bench warrant to attend trial in person; court denied bench warrant but allowed her to participate by videoconference from the Pennsylvania facility; she testified by video.
- Father’s appointed trial counsel was replaced shortly before trial; substitute counsel had not conferred with Father, could not locate him until shortly before trial, and was unable to secure his meaningful participation (telephone or video) due to jail logistics and the court’s refusal to delay trial.
- Jury found termination appropriate as to both parents; appellate court reversed as to Father on due-process grounds and remanded; affirmed as to Mother.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father was denied procedural due process by being prevented from meaningful participation at trial | Father: denial of continuance and refusal to permit telephone/video participation deprived him of meaningful opportunity to be heard and to confer with counsel | Dept.: Father was represented by counsel; delay/telephonic participation would jeopardize statutory timelines and father waived complaint by late request | Court: Father was denied due process; trial court should have considered telephonic participation or brief continuance; reversal as to Father and remand |
| Whether trial court abused discretion by denying Mother's bench warrant and forcing video appearance | Mother: in-person presence necessary; video appearance (projected on screen in jail uniform) prejudiced her and impeded communication | Dept.: Mother could testify by video and presented testimony addressing the issues; Mother failed to show necessity or security/costs favoring transport | Court: No abuse of discretion; alternative (video) sufficed and Mother failed to preserve some appellate complaints |
| Whether trial court improperly limited voir dire on conservatorship topics | Mother: voir dire restrictions prevented jury from understanding possible conservatorship outcomes relevant to best interest inquiry | Dept.: conservatorship was not litigated/submitted to jury; line of questioning inappropriate | Court: Error not preserved—Mother did not make specific questions part of record; no reversible error found |
| Whether Department made incurable improper jury argument in closing | Mother: Department used facts not in evidence and made improper appeals during closing | Dept.: trial court sustained objections and no motion for new trial made | Court: Complaints waived/preserved not adequate (no request to instruct jury to disregard, no motion for new trial); issue overruled |
Key Cases Cited
- Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (two-part due-process inquiry: liberty/property interest and required process)
- Boddie v. Connecticut, 401 U.S. 371 (1971) (due process requires meaningful opportunity to be heard)
- Santosky v. Kramer, 455 U.S. 745 (1982) (parental rights are fundamental liberty interests)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (balancing test for what process is due)
- Richardson v. City of Pasadena, 513 S.W.2d 1 (Tex. 1974) (importance of cross-examination in fair adjudication)
- In re M.S., 115 S.W.3d 534 (Tex. 2003) (parent and child interests in accurate termination determinations and importance of timeliness)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (children’s interest in finality and permanency in termination cases)