In the INTEREST OF D.W., a Child

Opinion issued May 17, 2016

In The

Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-01045-CV
———————————
IN THE INTEREST OF D. W., A CHILD

On Appeal from the 306th District Court
Galveston County, Texas
Trial Court Case No. 14CP0057

OPINION

Following a jury trial, the trial court signed a judgment terminating the

parent-child relationship between two-year-old D.W. and his parents, C.E.

(“Mother”) and S.W. (“Father”). On appeal, Mother raises three issues in which

she contends (1) the trial court erred when it denied her request for a bench warrant

to attend trial; (2) the trial court abused its discretion “when it disallowed” her

“argument and presentation as to conservatorship issues,” and (3) the Department
of Family and Protective Services (“the Department”) was permitted to make

improper jury argument. Father presents four issues in which he asserts (1) he was

denied due process; (2) the trial court abused its discretion when it denied his

motion for continuance; (3) he received ineffective assistance of counsel at trial;

and (4) the trial court erred because it did not timely appoint appellate counsel to

represent Father.

We reverse and remand in part and affirm in part.

Background

On June 10, 2014, the Department filed suit, requesting the trial court to

issue a temporary order appointing it as the temporary sole managing conservator

of seven-month-old D.W. If family reunification could not be achieved, the

Department sought to terminate Mother’s and Father’s parental rights to D.W. To

support its petition, the Department offered the affidavit of its representative,

Constance George, an investigator with the Department’s Child Protective

Services.

George stated that, on June 7, 2014, the Department received a report of

“neglectful supervision” of D.W. by Mother and Father. On that day, the

Galveston police had been called to the Children’s Center, a homeless shelter. The

report alleged that Mother and Father, who had been staying at the shelter with

D.W., were using crystal meth.

2
 Also on that day, the police and ambulance services were called to a local

Galveston business because Mother was “causing a scene” at the business. D.W.

was with Mother and bystanders were concerned that D.W. appeared dehydrated.

At the scene, Mother admitted to the responding police officer that she had

used meth that week. She also admitted to manufacturing meth. George stated in

the affidavit that Mother was arrested because the police found crystal meth on

Mother.1

D.W. was taken to the hospital. George stated that D.W. was found to be “a

little dehydrated.” D.W. also had mosquito bites “all over his body” and had “been

exposed to too much sun for his age.” George also stated in her affidavit that

Father had not been located and that D.W. was ready to be discharged from the

hospital.

George also averred that, on June 9, 2014, she spoke with Mother, who was

in the Galveston County Jail. Mother told George that she was originally from

Pennsylvania. Mother indicated that she and Father left Pennsylvania because she

was “facing a possibility of 10 to 20 years in jail [there], and she wanted to have

enough time with [D.W.]” before she was sentenced. Mother told George that they

passed through a number of states before arriving in Texas. They lived in Houston

for about one month before coming to Galveston.

1
The responding police officer testified at trial that the substance found on Mother
field-tested positive for cocaine, not crystal meth.

3
 Mother told George that, one month earlier, she, Father, and D.W. had come

to Galveston, planning to spend the weekend. They had gotten a ride to Galveston

with some friends from Houston. Mother said that they had an argument with the

friends, and the friends forced them out of the car. Mother, Father, and D.W. were

stranded in Galveston. Mother told George that they lived under a bridge for one

week before going to the Children’s Center homeless shelter.

Mother told George that she was not a meth user, however, she admitted to

being a “cooker” of meth; that is, someone who manufactured meth.2 Mother said

that, as part of her job as a cooker, she had to taste the meth to ensure that it was

safe to sell. Mother stated that she had not cooked meth in D.W.’s presence. She

told George that another couple at the shelter had agreed to sell the meth, if Mother

and Father cooked it. Mother said that they had hoped the money they earned from

the meth would help them get out of the shelter. Mother acknowledged that the

police had recovered items used in manufacturing meth from their room at the

shelter. Mother told George that she did not know where Father was.

George also stated in her affidavit that she had learned from police in

Pennsylvania that Mother had pending charges in that state for marijuana

possession and for manufacturing meth. She also had been told by Pennsylvania

police that Mother may be extradited to Pennsylvania for the pending charges.

2
Mother also admitted to George that she occasionally used marijuana.

4
 On June 10, 2014, the trial court signed emergency temporary orders,

naming the Department as D.W.’s temporary sole managing conservator. Because

Mother and Father had no family in Texas, D.W. was placed in foster care.

The trial court appointed separate counsel to represent Mother and Father.

As ordered by the trial court, Mother and Father and their counsel appeared at

mediation on June 18, 2014. As a result of the mediation, they signed and agreed

to follow a family service plan, which the trial court approved. Father also

provided the name of his brother, C.W., who lived in Ohio, as a family member

who could care for D.W.

Mother remained in jail in Galveston on charges of illegal drug possession.

In August 2014, Mother pleaded guilty in Galveston County district court to the

reduced charge of misdemeanor possession of drug paraphernalia and was

sentenced to 140 days in jail. In September 2014, Mother was extradited to

Pennsylvania on charges relating to the manufacturing of meth.

D.W. remained in foster care in Texas for five months. The Department

determined that Father’s brother, C.W., was a suitable placement for D.W., and

D.W. went to live with C.W. in November 2014. D.W. remained in C.W.’s care

during the pendency of the case.

Trial was set for May 18, 2015. On April 8, 2015, Mother filed a motion for

continuance and to extend the statutory dismissal date for the suit. She averred that

5
she was incarcerated in Pennsylvania but hoped to be released by the end of 2015

to attend trial in Galveston. On April 16, 2015, the trial court granted Mother’s

motion, setting a new trial date of November 30, 2015. The order also provided

that, pursuant to Texas Family Code section 263.401(b)(1), the suit would be

dismissed unless a final order was rendered by December 12, 2015.

Although no order is contained in the record, on June 26, 2015, the trial

court coordinator made a notation in the case-summary record, indicating that

Father’s counsel, who had been appointed in June 2014, was “removed from the

case” and that new counsel was appointed to represent Father.

On August 13, 2015, a permanency hearing was held, which was attended by

Mother’s and Father’s counsel. During the first year of the case, Father had

attended mediation, a status hearing, two permanency hearings, and pre-trial

mediation with his previous counsel; however, Father did not attend the August 13

permanency hearing with his newly appointed counsel.

Father was arrested in Galveston County on October 16, 2015. He waived

extradition to Pennsylvania on October 21, 2015, to face charges related to

manufacturing and possession of a controlled substance.

Mother filed a motion for bench warrant on November 3, 2015, stating that

she was incarcerated in Pennsylvania and wished to be present for the jury trial on

November 30, 2015. Mother asserted that her “presence is necessary to assure due

6
process in the proceeding.” She requested the trial court to issue a bench warrant

for her attendance, or, “in the alternative,” Mother requested she be permitted to

attend trial “via video or conferencing technology so that she may be present and

aware of the court proceedings and provide the necessary communications with her

attorney to ensure her right to due process is preserved.”

The trial court granted Mother’s motion in part. The trial court ordered that

Mother “be allowed to appear at the trial so that she may fully participate in the

proceedings.” The court further ordered that Mother’s “appearance [be] secured

via video conferencing technology so that she may be present and aware of the

court proceedings and that [Mother be] provided the necessary ability to perceive

the proceedings and communicate with her attorney to ensure her right to due

process is preserved.”

A pre-trial conference was held on November 20, 2015. Mother’s attorney

reminded the trial court that Mother would be appearing at trial via

videoconference. The trial court asked Mother’s attorney, “So . . . we’re going to

do a jury trial with a talking head?” Mother’s attorney responded,

I have asked my client repeatedly and she’s been adamant that she
wanted a jury. Obviously, there will be a few accommodations I may
have to ask for, like maybe taking a short break after witnesses to
confer before crossing; but other than that, I still anticipate we will be
done in three days.

7
 Substitute counsel appeared at the pretrial hearing on behalf of Father’s

appointed counsel, but substitute counsel said little. The trial court asked

substitute counsel, “And you don’t know anything?” Substitute counsel stated, “I

don’t know anything. I just got a text from [appointed counsel].”

At that point, the Department’s counsel informed the trial court:

I can tell you we recently learned that [Father] was extradited, as well,
to Pennsylvania; but I don’t know if anybody has been able to
determine where he might be. [Mother’s counsel] and I discussed
that; and she said it actually took her client four to six weeks to get to
Pennsylvania. So we have no idea where he’s at at this point. He was
released from Galveston County Jail, I think, October 21st or
somewhere around there. That is when the extradition papers were
signed.

The trial court asked if Father had previously appeared, and the

Department’s counsel confirmed that he had. The trial court then stated, “All right.

I guess if there’s any challenges with that situation, we will just have to deal with

that then.”

Trial began on November 30, 2015. That morning, Father’s counsel filed a

verified motion for continuance with the trial court. In the motion, Father’s

counsel averred:

This attorney has been unable to contact her client. On November 16,
2015 the CPS attorney sent an email that my client [Father] might be
in jail in Pennsylvania. I have learned what facility he is in but have
been unsuccessful trying to reach a human to communicate with. I
have been on hold for over an hour and have tried many days and
cannot get through to a person at the facility. I am unable to contact
my client to discuss his position on this case, what has transpired and

8
 his responses to [the Department’s] allegations, and his wishes for the
child.

It is my understanding that the mother of the child is
incarcerated (perhaps at the same facility as my client) and
arrangements are being made so that she can participate in the trial by
Skype and also have communications with her attorney through the
trial. My client should be given the same opportunity to participate in
this serious trial.

Also that morning, the trial court conducted a pretrial conference. At the

hearing, Father’s counsel brought the motion for continuance to the trial court’s

attention. Counsel informed the trial court of the following:

The real issue—and I’m hoping that maybe tech can help me. I was
brought in this case, replacing [first-appointed attorney]. I have never
had contact with my client. . . . I have not had contact with my client.
It’s my understanding that he is in the same penal institution that the
mom is. I just recently found this out. I had an e-mail . . . from [the
Department’s counsel on November 16, 2015] that said that she
thought that my client was in jail; and she said: “I’m assuming that
he’s been in—extradited to Pennsylvania because there’s an
extradition.” I had no other contact information at that point. I got
some information from the attorney from the mom. I did some
research on the Internet. I located a phone number for the prison
facility. I verified through their answering system that, yes, he was
there.

It is a really strange phone system they’ve got. I have been on
the phone for about an hour and a half trying to get to a human being
at the phone number for this prison. I cannot get a human being’s
voice. . . . My real issue is: If the mother is able to be participating in
the trial, I would think the father should have the same right. I don’t
know if there’s a way that we can get through the contact that the
attorney for the mom has to help us reach a human being to see if, at
least, he could be available by voice. I don’t care about the camera so
much; but, at least, be able to hear what’s happening [in] a trial as
serious as this.

9
 Father’s attorney then suggested that the person at the Pennsylvania jail,

who was facilitating Mother’s appearance, could be contacted to determine if she

could assist in getting Father on a speakerphone that afternoon for the start of trial.

The trial court rejected that request, stating, “So, once again, it’s the same thing.

I’m not going to let them just hear and participate that way.”

Father’s attorney stated,

[I]f you can do camera, that’s great. . . . I’m not trying to make it
complicated, but I think he should be able to, at least, hear what’s
going on in this trial. If we can do camera, that’s fabulous. He should
be able to hear what’s happening in this trial; but I have no other way
to do it and had short notice.

At the request of Father’s attorney, Mother’s attorney then described for the

trial court the steps that she had taken to arrange for Mother to appear at trial by

videoconference. Mother’s attorney confirmed that the jail phone system was

difficult to navigate. She stated that she remembered “tricking the system

somehow” and was eventually put in contact with a Mother’s “pod counselor,”

who facilitated her contacts with Mother. Mother’s attorney stated that she was

willing to share the counselor’s direct contact information with Father’s attorney.

At that point, the trial court indicated that an attempt would be made to

facilitate Father’s appearance by videoconference from the Pennsylvania

correctional facility. The trial court stated, “We’re going to start [trial]. We’ll start

today at 1:30; and they can be working on it from their end. And it may be that we

10
have to do some kind of split screen or something, but I’m going to hold them both

to the same standard.” The trial court’s technology technician was present in the

courtroom and informed the trial court that “[o]ur limitations are on the far side,

which is Pennsylvania, whether or not we can get them set up with a laptop and

webcam.”

Later in the pre-trial hearing, the trial court indicated that the motion for

continuance was denied, stating, “I am encouraging everybody to cooperate to try

to get [Father] to be part of this; but we’re not going to slow it down for it.”

Father’s attorney then asked whether the trial court was denying the motion. The

court stated, “Yes. That’s what I was saying. It’s denied, but I definitely want to

help him be a part of this. So, hopefully, he’s onboard by the time we’re picking—

start picking the jury; but if not, let’s have him in when we get him.”

Trial began that afternoon, and the jury was selected. Mother appeared from

the Pennsylvania correctional facility by videoconference to allow her to see and

hear what was happening in the courtroom, to confer with her attorney, and to

testify.

The second day of trial, after the Department had presented several

witnesses, the Department requested the record to reflect, outside the presence of

the jury, that “we did attempt to have them both [parents] present; and it wasn’t

possible.” The trial court stated,

11
 So outside the hearing [of the jury], I’m putting on the record that we
cannot have both of the respondents present by video because of the
facility that they are at. No—nothing to do with our technical issues
or our court system. So I’m just putting that on the record. Okay?
We can’t have both of them at the same time.

At the end of the third day of trial, the Department requested to call Father

as a witness. Father’s attorney objected on the basis that Father had not

participated in the first two days of trial. Father’s attorney stated,

I had asked for a continuance because I have not had the opportunity
to talk to my client or to meet him; and I just discovered on November
16th, through an e-mail from the CPS attorney, that he was extradited.
I tried to hunt him down. I have yet to be able to get through on the
phone system on anything. So I don’t think it’s fair that we continue
with the trial anyhow. And it would be unfair for the CPS attorney to
be able to call him when I’ve never even had a chance to talk to him.
That would deny him a chance of a fair trial or any advice from me as
his attorney.

The Department’s attorney responded, “I would just like to get on the record

from respondent’s counsel that that is a trial strategy on her part. She has made the

decision not to call him herself.”

Father’s attorney replied, “I don’t have to put on any case and I have not

made a full decision, but I have a lot of issues about all of this. And I really don’t

want to have to go into a mistrial for the State to be calling him. He has not been

able to participate in the trial.”

The trial court ruled that it would permit the Department to call Father as a

witness. Father’s attorney continued her objection:

12
 [Father] has not been allowed to participate in the trial. He’s not been
allowed to listen to any of testimony of any of the witnesses. I cannot
ask him about anything that was not stated correctly of anybody else.
The IT person has stated to us that it was impossible to be able to have
both of these people—both parents participating in the trial at the
same time.

So only one person has gotten to do that and that was the
mother. The father was not allowed to do it because they didn’t have
the technical ability to do it. So it would be an unfair prejudice to him
that he’s been denied that, denied the right to attend as far as that
goes. . . . [I]f he is to be called as a witness, which I’m fervently
objecting to, if CPS were to call him, the CPS attorney spent over four
hours in examining the mother on the stand. I have not had a chance
to talk with him at all. I would have to have a chance to visit with him
prior to him being on the stand, have a chance to update him on the
several days of testimony and what has been transpiring here, as well
as all the exhibits that have been admitted into evidence that I haven’t
had an opportunity to talk to him about. So I would need to have time
to visit with him, which would be a delay for the Court.

The Department’s attorney responded, “[T]here was no request by [Father’s]

counsel to alternate mother listening to some witnesses on one day and father

listening to other witnesses on one day and there was certainly no objection or bar

put on that by the petitioner.” Mother’s counsel then stated that she would not

agree to that arrangement because it would prevent Mother from hearing the

entirety of the proceedings.

Father’s counsel made one last point:

And I need to throw one more thing out there, Judge, to put on the
record: This Court has been very workable with the attorney for the
mother. And you have tried to afford her the opportunity after every
single witness has testified throughout the trial to be able to consult
with her client. If you allow the CPS attorney to call my client, my

13
 client has been denied that access to counsel, which has been afforded
to the mother. . . . . I did not submit a witness list because I had no
witnesses. I didn’t even know exactly where my client was. I haven’t
had an opportunity to consult with him or to visit with him. . . . .

The next morning, the fourth day of trial, the Department abandoned its

request to call Father to testify. Trial concluded at the end of the fourth day.

To support the termination of Mother’s and Father’s parental rights to D.W.,

the Department presented the following statutory predicate grounds to the jury: (1)

both parents had knowingly placed or had knowingly allowed D.W. to remain in

conditions or surroundings that endangered his physical or emotional wellbeing;

(2) both parents had engaged in conduct or had knowingly placed D.W. with

persons who engaged in conduct that endangered his physical or emotional

wellbeing; (3) both parents had failed to comply with the provisions of a court

order that specifically established the actions necessary for her to obtain D.W.’s

return; (4) Father had constructively abandoned D.W.; and (5) Mother had used a

controlled substance in a manner that had endangered D.W. See TEX. FAM. CODE

ANN. § 161.001(1)(b)(D),(E),(N),(O),(P) (Vernon 2014). The jury was also

instructed that “it must be proven by clear and convincing evidence that

termination of the parent-child relationship would be in the best interest of the

child.”

On fifth day of trial, Friday, December 4, 2015, the jury returned its verdict,

finding that the parent-child relationship between Mother and D.W. and between

14
Father and D.W. should be terminated. The trial court stated on the record that it

would render judgment based on the jury’s verdict. The court also stated that the

attorneys representing the parents would be released after the court signed the

termination orders. Father’s attorney indicated that she would be filing a notice of

appeal and requested the trial court to wait on releasing counsel. The trial court

stated that it would sign the final termination orders on Monday, December 7,

2015, to give the attorneys adequate time to file notices of appeal before releasing

them. Mother’s counsel filed a notice of appeal on December 7, 2015, the same

day the judgment was signed. Father’s counsel filed a notice of appeal on

December 8, 2015. She also filed a motion to withdraw as Father’s counsel. The

trial court signed an order permitting Father’s attorney to withdraw that same day.

Appellate counsel was not appointed to represent Father until December 30,

2015. On January 12, 2016, appellate counsel filed a motion for extension of time

to file Father’s brief in this Court. She stated that she had not received notice of

her appointment to represent Father until January 6, 2016.

On appeal, Mother raises three issues. She contends (1) the trial court erred

when it denied her request for a bench warrant to attend trial; (2) the trial court

abused its discretion “when it disallowed” her “argument and presentation as to

conservatorship issues,” and (3) the Department was permitted to make improper

jury argument.

15
 Father presents four issues on appeal. He asserts (1) he was denied due

process; (2) the trial court abused its discretion when it denied his motion for

continuance; (3) he received ineffective assistance of counsel at trial; and (4) the

trial court erred because it did not timely appoint appellate counsel to represent

Father.

Father’s Appeal: Denial of Due Process

In his first issue, Father contends that he was denied due process of law

under the United States Constitution and due course of law under the Texas

Constitution. See U.S. CONST. amend. XIV, § 1 (providing that no State shall

“deprive any person of life, liberty, or property without due process of law”); TEX.

CONST. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty,

property, privileges or immunities, or in any manner disfranchised, except by the

due course of the law of the land.”).3 Father asserts that he was denied due process

because he was not permitted to participate at trial in a meaningful manner as a

result of the trial court’s denial of his attorney’s request for a continuance and the

trial court’s refusal to consider his participation at trial by teleconference.
3
For claims of procedural due process, as here, the Supreme Court of Texas has
found no meaningful distinction between Texas’ due-course-of-law protection and
the federal constitution’s due process guarantee. Univ. of Tex. Med. Sch. v. Than,
901 S.W.2d 926, 929 (Tex. 1995). In a due-course-of-law analysis, courts look to
federal cases construing the guarantee of due process as persuasive authority.
NCAA v. Yeo, 171 S.W.3d 863, 867–68 & 867 n.14 (Tex. 2005). We, therefore,
conform our discussion to the claimed denial of due process under the United
States Constitution. See In re T.L.B., No. 07–07–00349–CV, 2008 WL 5245905,
at *2 n.7 (Tex. App.—Amarillo Dec. 17, 2008, no pet.) (mem. op.).

16
A. Applicable Legal Principles

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 (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, 91 S. Ct. 780, 785 (1971).

Parents have a fundamental liberty interest “in the care, custody, and

management of their child.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388, 1394–95 (1982). This fundamental liberty interest “does not evaporate

simply because they have not been model parents or have lost temporary custody

of their child to the State.” Id. at 753, 102 S. Ct. at 1395. Moreover, status as a

prison inmate does not strip a person of his constitutional right of reasonable

access to the courts. In re T.L.B., No. 07–07–0349–CV, 2008 WL 5245905, at *2

(Tex. App.—Amarillo Dec. 17, 2008, no pet.) (mem. op.) (citing Hudson v.

Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198 (1984)). Therefore, here, Father

was entitled to procedural due process in the termination proceeding. See In re

17
R.M.T., 352 S.W.3d 12, 17 (Tex. App.—Texarkana 2011, no pet.); Martinez v. Tex.

Dep’t of Protective & Regulatory Servs., 116 S.W.3d 266, 271 (Tex. App.—El

Paso 2003, pet. denied).

At a minimum, due process requires notice and an opportunity to be heard at

a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S.

319, 333, 96 S. Ct. 893, 902 (1976). What process is due in any given situation is

measured by a flexible standard that depends on the practical requirements of the

circumstances. Id. at 334, 96 S. Ct. at 902. To assess what process Father was

due, we weigh the three factors developed by the United States Supreme Court in

Eldridge: (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 the private interest due

to the procedures used. In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (citing

Eldridge, 424 U.S. at 335, 96 S. Ct. at 903). Courts must weigh these factors to

determine whether the fundamental requirements of due process have been met by

affording an opportunity to be heard at a meaningful time and in a meaningful

manner under the circumstances of the case. See City of Los Angeles v. David, 538

U.S. 715, 717, 123 S. Ct. 1895, 1896 (2003).

18
B. Weighing of the Eldridge Factors

1. Private Interests Affected by the Proceeding

Concerning the private interests affected, parental rights are “far more

precious than any property right,” and when the State initiates a termination

proceeding, “it seeks not merely to infringe that fundamental liberty interest, but to

end it.” Santosky, 455 U.S. at 759, 102 S. Ct. at 1397. A parent’s interest in

maintaining custody of and raising his or her child is paramount. In re M.S., 115

S.W.3d 534, 547 (Tex. 2003). For this reason, a parent’s interest in the accuracy

and justice of the decision to terminate his or her parental status is, therefore, a

commanding one. Id.

The private interests of the child must also be considered. Id. “Both the

parent and the child have a substantial interest in the accuracy and justice of a

decision.” Id. The considerations involved in this case—namely, Father’s

fundamental liberty interest in maintaining custody and control of D.W., the risk of

permanent loss of the parent-child relationship between them, and Father’s and

D.W.’s interest in a just and accurate decision—weigh heavily in favor of

providing Father with an opportunity to communicate with his attorney and

participate in the termination proceedings, even if that required a continuance of

trial and participation by teleconference. See id. at 548.

19
 2. The State’s Interest in the Proceeding

The State’s interest in the proceeding includes protecting the best interest of

the child, an interest which is “served by procedures that promote an accurate

determination of whether the natural parents can and will provide a normal home.”

M.S., 115 S.W.3d at 548–49; see also B.L.D., 113 S.W.3d at 353 (noting that the

State’s “parens patriae interest in promoting the welfare of the child” aligns with

the parent’s interest in a just and accurate decision). The State also has an interest

in an accelerated timetable and a final decision that is not “unduly prolonged” with

negative psychological effects on the children left in limbo. See M.S., 115 S.W.3d

at 548; see also B.L.D., 113 S.W.3d at 353. As has been recognized,

[the] Family Code’s entire statutory scheme for protecting children’s
welfare focuses on the child’s best interest. See, e.g., TEX. FAM. CODE
§§ 51.11(b); 153.001; 153.002; 161.001(2); 161.101. And, like their
parents, children have an interest in an accurate resolution and just
decision in termination cases. But children also have a strong interest
in a final decision on termination so that adoption to a stable home or
return to the parents is not unduly prolonged.

In re J.F.C., 96 S.W.3d 256, 304 (Tex. 2002) (Schneider, J., dissenting). The

policy for expeditious determinations of termination cases is also apparent in

Family Code Section 263.401, which governs how long a termination suit may

remain pending before commencement of trial. Section 263.401(a) requires as

follows:

Unless the court has commenced the trial on the merits or granted an
extension under Subsection (b) or (b–1), on the first Monday after the

20
 first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, the
court shall dismiss the suit affecting the parent-child relationship filed
by the department that requests termination of the parent-child
relationship or requests that the department be named conservator of
the child.

TEX. FAM. CODE ANN. § 263.401(a) (Vernon Supp. 2015).4 The trial court may

extend the deadline for dismissal for up to 180 days, and it must dismiss the suit if

trial has not commenced on or before the new dismissal date. Id. § 263.401(b), (c).

The record shows that the Department was first appointed as temporary

managing conservator of D.W. on June 10, 2014. Trial was set to commence on

May 18, 2015. Later, pursuant to section 263.401(b) and at Mother’s request, the

trial court extended the dismissal date to December 12, 2015 and set trial for

November 30, 2015.5 Trial commenced on the morning of November 30, 2015

with the announcements of the parties and a determination of a number of

preliminary evidentiary matters. See In re D.S., 455 S.W.3d 750, 753 (Tex.

App.—Amarillo 2015, no pet.) (suggesting that “commencement of trial” means,

at a minimum, that the parties have been asked to make their respective

4
The Texas Legislature amended Section 263.401 after this case was filed;
however, we cite to the current version of the statute because the subsequent
amendments do not affect our analysis in this appeal.
5
The trial court’s order stated that the case would be dismissed unless a final order
was rendered by December 12, 2015. However, Section 263.401(b) provides that
trial only need be commenced by the dismissal date. See TEX. FAM. CODE ANN.
§ 263.401(b) (Vernon Supp. 2015). It does not require that judgment be rendered
by that date. See id.

21
announcements, and the trial court has ascertained whether there are any

preliminary matters to be taken up). Thus, a short recess or continuance of the trial

to permit Father’s attorney to pursue contacting him in prison to confer with him

and to prepare for trial would not have placed the case in jeopardy for dismissal.

See id.

The record shows that the jail phone system was extremely difficult to

maneuver. Father’s attorney detailed for the trial court the efforts she had made to

reach a live person at the jail through the phone system to no avail. Mother’s

attorney confirmed that the system was difficult to maneuver and stated that she

had only gotten through it to reach a person at the jail when she discovered how to

“trick” it. The record shows that Mother’s attorney was willing to assist Father’s

attorney by providing the direct contact information for the person at the

correctional facility who had assisted in setting up Mother’s videoconferencing.

More importantly, permitting Father to participate in trial by telephone, as

requested by his attorney, would not have placed the case in jeopardy of dismissal

pursuant to Family Code Section 263.401(b). We note that, while he does not have

an absolute right to appear personally in court in a civil case, an inmate may not be

denied reasonable access to the courts. See T.L.B., 2008 WL 5245905, at *3. Even

though granting a continuance or permitting Father to participate by telephone may

have increased the time that it took to resolve the case, “the State’s interests in

22
economy and efficiency pale in comparison to the private interests at stake, and to

the risk that a parent may be erroneously deprived of his or her parental rights and

the child may be erroneously deprived of the parent’s companionship.” M.S., 115

S.W.3d at 548.

In short, the record does not show that granting the motion for continuance

or the request for Father to appear by telephone would have greatly harmed the

State’s interest in an efficient and economic resolution of this matter by placing the

case at risk for dismissal. Concomitantly, the record does not show that granting

Father’s requests would have created a conflict between D.W.’s need for

permanency and stability and Father’s right to reasonable access to the court. Cf.

See R.M.T., 352 S.W.3d at 21 (holding that father’s right to a continuance of

termination trial based on his mental incompetency was in conflict with child’s

right to achieve permanency in a timely fashion when evidence showed that father

would not achieve mental competency before case had to be statutorily dismissed).

Nor does the record show that D.W.’s best interest was promoted by denying the

requests of Father’s attorney. Cf. id. Given the record, we give less weight to the

Department’s interest in this case to achieve an expeditious resolution than we give

to the private parties’ interests. See M.S., 115 S.W.3d at 548; see also T.L.B., 2008

WL 5245905, at *3 (“[C]oncerns for efficiency and economy are inferior to the

private interest at stake as well as the risk of an erroneous termination decision.”).

23
 3. Risk of Erroneous Deprivation of Parent-Child Relationship

“The parent’s, child’s, and government’s interest in a just and accurate

decision dovetails with the third Eldridge factor—that of the risk of erroneous

deprivation” of the parent-child relationship as a result of the procedure that was

followed. M.S., 115 S.W.3d at 549; see also R.M.T., 352 S.W.3d at 22. The

Department posits that the risk of erroneous decision with regard to the termination

of Father’s parental rights was not significant because “[he] was ably represented

at trial by counsel.” The Department asserts that Father, through his counsel, “had

the opportunity to present evidence and cross examine witnesses.” The

Department further asserts that the trial court “placed no restrictions that prevented

[Father’s] access to courts.”

While Father was represented at trial, his counsel made clear that she had

been appointed to replace Father’s first-appointed counsel. She informed the trial

court that she had never spoken to Father. She was unaware of Father’s position

on the claims made by the Department or what evidence he had to offer relevant to

the parent-child relationship. Appointed counsel told the trial court that she did not

have a witness list because she had not been able to communicate with Father.

At trial, the Department presented nine witnesses. These witnesses included

Mother and the Department caseworker, who each provided damaging testimony

24
against Father.6 The Supreme Court of Texas has stated that “[t]he right to cross

examination is a vital element in a fair adjudication of disputed facts[,]” and it

includes “the right to cross examine adverse witnesses and to examine and rebut all

evidence[.]” Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974).

Because he did not participate during trial, Father’s counsel was unable to

communicate with him regarding strategy for cross-examining the Department’s

witness or regarding the presentation of evidence to rebut the witnesses’ testimony.

See In re D.C.C., 359 S.W.3d 714, 718 (Tex. App.—San Antonio 2011, pet.

denied) (Simmons, J., concurring) (“Had she been present at the trial, the mother

would have heard the State’s evidence and could have responded with evidence

that her attorney simply could not provide.”).

We also note that, despite his representation by counsel at trial, Father was

effectively without appellate counsel during the 30-day period—following the

signing of the termination orders—in which he was permitted to file a motion for

new trial. See TEX. R. APP. P. 329b(a); see also In re P.M., No. 15–0171, 2016

6
Mother testified that she and Father had both been involved in the manufacturing
of meth in Pennsylvania and in Galveston. She stated that each had been on
probation in Pennsylvania for DWI when they left that state, eventually traveling
to Texas. Mother testified that they each violated their respective probation when
they left Pennsylvania. She also testified that Father was physically abusive to her
one time when she was pregnant with D.W. The caseworker testified that Father
did not comply with all of the terms of the court-ordered family service plan. She
stated (1) he had not visited D.W.; (2) he had not kept her informed of his address
changes; (3) he had not provided her with proof of his employment; and (4) he had
not completed the required drug tests.

25
WL 1274748, at *3 (Tex. April 1, 2016) (holding that, in government-initiated

parental rights termination proceedings, the statutory right of indigent parents to

counsel endures until all appeals are exhausted). The trial court signed the

judgment terminating Father’s parental rights on December 7, 2015. The next day,

his counsel filed his notice of appeal, and the trial court signed an order permitting

Father’s counsel to withdraw from representing him. Appellate counsel was not

appointed by the trial court until December 30, 2015. In a motion for extension of

time to file Father’s appellate brief, Appellate counsel informed this Court that she

did not receive notice, informing her that she had been appointed to represent

Father, until January 6, 2016, one day before the 30-deadline to file a motion for

new trial. Thus, Father was afforded little opportunity to file a motion for new trial

in which he could have explained what evidence he would have offered to defend

against the Department’s evidence if he had been permitted to participate in trial by

teleconference.

On appeal, the Department also assails Father’s due-process complaint by

asserting that Father had an opportunity to testify at trial. The Department points

to its request during trial to call Father as a witness. It claims that Father’s counsel

objected to his being called as a witness for strategic reasons. The Department

asserts that, although it withdrew its request for Father to testify, Father’s counsel

could have called him to testify by video.

26
 The record, however, does not indicate that Father’s counsel objected to his

testifying for strategic reasons. Instead, counsel objected to Father’s being called

as a witness because counsel had not had an opportunity to speak with him before

trial. More importantly, Father’s attorney objected to his testifying because Father

did not have the opportunity to be present for the four-day trial and to hear the

testimony of the nine witnesses presented by the Department. Had Father testified,

he would have been subjected to cross-examination without having had the benefit

of hearing the other evidence presented, including the damaging testimony of

Mother and the Department’s caseworker. In addition, Mother’s attorney stated

that she objected to Father’s testifying by video feed because that would mean that

Mother would not be able to hear Father’s testimony.

The Department also asserts that Father “waived” his due-process complaint

because his attorney waited until the first day of trial to request a continuance and

to request facilitation of Father’s appearance. Although the timing of a motion

may factor into whether a trial court properly exercises its discretion in granting or

denying it, there is no stated procedural deadline for filing a motion to appear at

trial by alternate means or for filing a motion for continuance. See TEX. R. CIV. P.

251, 252.

We note that the record reflects that Father’s attorney learned of his

extradition on November 16, 2015. At the pretrial conference, counsel told the

27
trial court that, even when she learned of Father’s extradition, she was not

informed of his whereabouts. She explained,

I had no other contact information at that point. I got some
information from the attorney from the mom. I did some research on
the Internet. I located a phone number for the prison facility. I
verified through their answering system that, yes, he was there. It is a
really strange phone system they’ve got. I have been on the phone for
about an hour and a half trying to get to a human being at the phone
number for this prison. I cannot get a human being’s voice.

Mother’s attorney confirmed that she too had experienced difficulty in

navigating the jail phone system until she discovered a “trick” to reach a live

person at the correctional facility. Given the circumstances, Father’s due-process

complaint was not waived.

The Department further assails Father’s due-process claim on the basis that

his attorney did not offer evidence to show that Father’s participation in the

proceedings by telephone was possible. At the pretrial conference, held the

morning of the first day of trial, Father’s attorney told the trial court that she did

not care if Father was able to see what was happening at trial, but she did want him

to be able to hear what was happening during trial. She suggested to the trial court

that the person at the Pennsylvania correctional facility who was facilitating

Mother’s appearance could be contacted to determine if that person could assist in

arranging for Father to participate by telephone for the start of trial that afternoon.

The trial court rejected that request, stating, “So, once again, it’s the same thing.

28
I’m not going to let them just hear and participate that way.” Thus, the record

shows that the trial court did not deny counsel’s request for Father to participate by

telephone based on a lack of evidence that such arrangement was not feasible.

Rather, the trial court was not amenable to Father’s participation by telephone.

While the trial court ruled that Father could participate at trial by video conference,

like Mother, the record shows that the IT technician correctly informed the trial

court, at the time the court made the ruling, that there might be limitations on the

ability to have Father appear by videoconferencing along with Mother. Indeed, the

record shows that it was not technically possible for both to appear simultaneously

by video.

In its brief, the Department also asserts that Father was not entitled to a

continuance because he had not kept his counsel informed of his whereabouts

before he was extradited to Pennsylvania. The Department correctly points out

that it is a party’s duty to make himself available and to keep his counsel notified

of his whereabouts. See In re D.W., 353 S.W.3d 188, 193 (Tex. App.—Texarkana

2011, pet. denied) (concluding no abuse of discretion in denying motion for

continuance when mother had not been in contact with her attorney and her

whereabouts could not be determined at the time of trial). The Department bases

its presumption that Father had not kept his counsel informed of his whereabouts

on counsel’s statement, in her verified motion for continuance, that she had been

29
unable to make contact with Father. At the pretrial conference, counsel informed

that trial court that she had replaced Father’s first appointed counsel, and “I have

never had contact with [Father].” Father’s counsel did not indicate that she had not

received Father’s contact information or that it was Father’s fault that she had not

contacted him.

Interestingly, the record shows that, during the first year the case was

pending, Father appeared at numerous hearings and court-ordered mediations with

his first-appointed counsel. The last hearing that Father attended with his first-

appointed counsel was a permanency hearing on April 2, 2015. He also attended a

court-ordered pre-trial mediation on April 10, 2015. Trial was originally set for

May 18, 2015, but the trial court granted Mother’s request for a six-month

continuance, re-setting trial to November 30, 2015. The trial court coordinator

made a notation in the case summary record on June 26, 2015, indicating that

Father’s first-appointed counsel, who had been appointed in June 2014, was

“removed from the case” and that new counsel was appointed to represent Father.

After that time, Father made no more appearances in the trial with his newly-

appointed counsel.

We note that, in his brief, Father correctly asserts that “there is nothing in

the record to show that [Father] was notified of this change in counsel.” To the

extent that Father could have addressed whether he had been informed of the

30
change in counsel in a motion for new trial, he was effectively denied that right

because he was without appellate counsel for 29 days of the 30-day period to file a

motion for new trial.7

After considering the circumstances of this case, and the procedure that was

used, we conclude that, under the third Eldridge factor, there was a significant risk

of erroneous deprivation of the parent-child relationship between Father and D.W.

Under the unique circumstances of this case, the trial court should have considered

Father’s participation by telephone and given his counsel time to facilitate his

participation. Balancing the three Eldridge factors, we hold that Father was denied

procedural due process. In short, he was denied a meaningful opportunity to

participate in the proceedings.

We now turn to whether the denial of procedural due process to Father was

harmful error. To obtain reversal of a judgment based on trial court error, an

appellant must show that the error probably caused rendition of an improper

judgment or probably prevented the appellant from properly presenting the case to

7
An attorney may withdraw from representation of a client only if the attorney
satisfies the requirements of Rule 10 of the Rules of Civil Procedure. O’Kane v.
Chuoke, No. 01–05–00523–CV, 2007 WL 926494, at *2 (Tex. App.—Houston
[1st Dist.] Mar. 29, 2007, no pet.) (mem .op.). If no counsel is substituting for the
withdrawing attorney, counsel’s motion to withdraw must state “that a copy of the
motion has been delivered to the party; that the party has been notified in writing
of his right to object to the motion; whether the party consents to the motion; the
party’s last known address and all pending settings and deadlines.” TEX. R. CIV.
P. 10. Father correctly points out that his trial counsel’s motion to withdraw, filed
the day after the judgment was signed, satisfied none of these requirements.

31
the appellate court. TEX. R. APP. P. 44.1(a). Here, when it effectively denied

Father any method of meaningful participation at trial, the trial court foreclosed the

presentation of evidence by Father to counter that offered by the Department.

Moreover, Father was unable to show what that evidence may have been because

he was effectively denied counsel during the time period in which he could file a

motion for new trial. Thus, we hold that the denial of procedural due process in

this case “probably prevented [Father] from properly presenting the case” on

appeal. See TEX. R. APP. P. 44.1(a)(2); see also T.L.B., 2008 WL 5245905, at *5

(holding, in termination-of-parental-rights case, that trial court’s denial father’s

meaningful participation in trial violated his due-process rights and probably

prevented him from properly presenting case on appeal).

We sustain Father’s first issue.8

Mother’s Appeal

A. Denial of Request for Bench Warrant

In her first issue, Mother complains that the trial court abused its discretion

when it denied her request for a bench warrant and instead granted her alternate

request to appear at trial by video conferencing. Mother asserts that her

appearance at trial by video from the Pennsylvania correctional facility was

prejudicial to her because her image was projected on a large screen in front of the

8
Father’s first issue is dispositive of his appeal. Accordingly, we do not address his
remaining issues. See TEX. R. APP. P. 47.1.

32
jury, while she was in shackles and wearing her prison uniform. Mother also

asserts that she could not adequately participate in the trial by video. She points

out that there were instances (1) when it was difficult for her to confer with her

attorney, (2) when she could not hear the proceedings, or (3) she could not be

heard in the courtroom.

1. Applicable Legal Principles

We review a trial court’s decision on an inmate’s request for a bench warrant

for an abuse of discretion. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). The

test for abuse of discretion is whether the trial court’s ruling is arbitrary,

unreasonable, or without reference to any guiding rules or legal principles. K–

Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

The right to appear in a civil proceeding is not absolute, and an inmate’s

right to personally appear must be weighed against the integrity of the correctional

system. Z.L.T., 124 S.W.3d at 165. Several factors are relevant in the

determination of whether to grant an inmate’s request for a bench warrant: (1) the

cost and inconvenience of bringing the inmate to the court proceeding; (2) the

security risk to the court and the public; (3) whether the inmate’s claims are

substantial; (4) whether the court hearing can reasonably be delayed until the

inmate’s release; (5) whether the inmate can produce admissible, noncumulative

testimony that cannot be effectively presented by deposition, telephone, or other

33
means; (6) whether the hearing is before a judge or a jury; and (7) the inmate’s

probability of success on the merits. Id. at 165–66.

A trial court does not have an independent duty to assess these factors;

instead, in accordance with generally applicable rules of procedure, litigants bear

the burden “to identify with sufficient specificity the grounds for a ruling they

seek,” and “a litigant’s status as an inmate does not alter that burden.” Id. at 166

(citing TEX. R. CIV. P. 21; TEX. R. APP. P. 33.1(a)(1)(A)). The inmate has the sole

burden to justify the necessity of her presence by producing factual information

showing these factors. See id.

2. Analysis

In her motion for bench warrant, Mother requested to be present at trial to

allow her “[to] fully participate in the proceedings.” She averred that she had

information regarding “her activities in Pennsylvania that are relevant to the

retention of her parental rights and her attorney’s ability to demonstrate the best

interest of the child.” Mother claimed that “her presence at trial was necessary to

bring forth evidence of her future stability and her ability to provide emotionally,

physically, and financially for her child.” She further asserted that “her presence is

necessary to assure due process in the proceeding.” Mother requested, in the

alternative to a bench warrant, that the trial court permit her to appear at trial via

34
video conferencing. The trial court denied Mother’s request for a bench warrant

but permitted her to testify by video conferencing.

When she testified at trial by video conferencing, Mother addressed “her

activities in Pennsylvania” that were “relevant to the retention of her parental

rights” and “the best interest of the child.” She also had the opportunity to address

in her testimony “her future stability and her ability to provide emotionally,

physically, and financially for her child.” In other words, Mother’s testimony by

video conferencing covered the topics she had identified in her motion as

supporting her need for a bench warrant. Additionally, Mother failed to provide

factual information establishing why her interest in obtaining a bench warrant

outweighed the impact on the correctional system. See id. at 165. For these

reasons, we conclude that the trial court did not abuse its discretion in denying

Mother’s request for a bench warrant. See id. at 165–66.

Mother now claims on appeal that the trial court abused its discretion in

denying her request for a bench warrant because, appearing on a large projection

screen in shackles and prison uniform, was prejudicial to her.9 A party preserves

error by a timely request that makes clear the grounds for the request and by

9
Nothing in the record indicates that Mother was in shackles. The record does
indicate that Mother was wearing a striped jail uniform. We note that Mother’s
attorney did question the venire regarding whether Mother’s incarceration would
affect their views. In doing so, the attorney mentioned Mother’s jail uniform. By
questioning the venire about the issue of incarceration, any risk of prejudice to
Mother based on her incarceration was reduced.

35
obtaining a ruling on that request, whether express or implicit. TEX. R. APP. P.

33.1(a). Mother did not raise the concerns regarding her appearance in the trial

court in her motion for a bench warrant or at any time during trial. Thus, Mother’s

complaints on appeal have not been preserved for our review. See TEX. R. APP. P.

33.1(a)(1)(A)); see also In re D.A.H, Nos. 13–07–444–CV, 13–07–450–CV, 2008

WL 3920772, at *4 (Tex. App.—Corpus Christi Aug. 27, 2008, no pet.) (mem.

op.) (“[A] defendant must make a timely objection against being tried in prison

clothes or such rights are waived.”).

Mother also complains on appeal that she could not always hear what was

being said during trial and that her testimony was not always heard in the

courtroom. The record shows that, when Mother did not hear a question asked of

her, it would be repeated. Similarly, if her response to a question was not heard,

she also repeated it.10

Mother also asserts that she was not permitted to adequately confer with her

attorney during trial. The record, however, reflects that accommodations were

made for Mother to confer with her attorney. The trial court granted the request of

10
We note that the Department offered into evidence a video of Mother speaking to
a Galveston Police Officer when she was arrested on June 7, 2014. Mother stated
during trial that she had not been able to hear the video’s audio very well when it
was played for the jury. However, Mother’s attorney was present when the video
was played. And Mother’s attorney made no objection to the Department’s
questioning of Mother regarding the content of the video.

36
Mother’s attorney to be permitted to confer with Mother before she cross-

examined the Department’s witnesses.

In any event, as with her other complaints related to the denial of the bench

warrant, Mother did not object to the proceedings on the grounds that (1) she could

not hear the proceedings; (2) she could not be heard; or (3) she could not

adequately confer with her counsel. Accordingly, these complaints are not

preserved. See TEX. R. APP. P. 33.1(a)(1)(A)).

We overrule Mother’s first issue.

B. Voir Dire

In her second issue, Mother asserts that the trial court abused its discretion

“when it disallowed [Mother’s] trial argument and presentation as to

conservatorship issues.” Specifically, Mother’s complaint pertains to the following

portion of voir dire:

[Mother’s counsel]: Of those people who I just called out and who
raised their placards, of those people how many of them were
involved in what I would call modification hearings, which is—if
you’ve been in one, you would know it? Okay. So in family cases,
you can come back as a parent; and if one parent has conservatorship,
the other parent can petition the Court because circumstances or
residence or whatever the case may be.

[The Department’s counsel]: Judge, may we approach?

THE COURT: Yes.

(Out of hearing of the jury.)

37
 [The Department’s counsel]: Judge, I’d object at this point. There are
no pleadings for conservatorship or for any other questions to go to
the jury, other than termination at this point.11

[Mother’s counsel]: And, Your Honor, I believe it absolutely goes to
whether or not they terminate as to what other possibilities would—
would be available. I’m quite certain one of the first questions that
will be asked [by the jury] if it is not addressed is, “If we say no to
termination, what happens?” I have an absolute right to know the
legal sequence of that. I’m not talking about this case specifically, but
what the legal consequences are of termination and managing
conservatorship.

[Father’s counsel]: And I would interject if I could, it goes to the best
interest. Also under the termination, it’s one of many factors as to
what best interest and the future of the child is. It’s one of the things
to consider—are what are your future plans and what could happen to
this child.

THE COURT: But I think that clouds things up. So, no, don’t go
there.

[Mother’s counsel]: And, Your Honor, I would just say I understand
your ruling and I understand it clouds things up; but I also think my
client has a right for the jury to know what the legal consequence is.

In her brief, Mother asserts, “The Court completely shut down [Mother’s]

trial counsel’s attempt to pursue, explore, and present conservatorship issues with

the jury[.]” She claims, “In limiting trial counsel’s ability to address issues

specifically pled for by [the Department], and in cutting off her ability to properly

11
The Department acknowledges in its brief that it had pled conservatorship as an
alternate remedy to termination in its petition. However, the Department correctly
points out that the issue of conservatorship was not litigated, argued, or submitted
to the jury at trial.

38
argue certain matters pertaining to the best interests of the child, the [trial court]

abused its discretion.”

Voir dire examination protects the right to an impartial jury by exposing

possible improper juror biases that form the basis for statutory disqualification.

Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749 (Tex. 2006); see TEX. GOV’T

CODE ANN. § 62.105(4) (Vernon 2013) (disqualifying from jury service anyone

who “has a bias or prejudice in favor of or against a party in the case”). The

primary purpose of voir dire is to question potential jurors about specific views that

may prevent or substantially impair them from properly performing jury duty.

Vasquez, 189 S.W.3d at 749. In civil cases in Texas, the trial court has broad

discretion in conducting voir dire. See id. at 753. Counsel’s latitude to question

the venire panel, while broad, is subject to reasonable restraints by the trial court.

Id. at 750.

We determine whether a trial court erred in placing restrictions on counsel’s

voir dire under an abuse-of-discretion standard. See Babcock v. Nw. Mem’l Hosp.,

767 S.W.2d 705, 707 (Tex. 1989). For an appellate court to determine whether a

trial court abused its discretion by restricting voir dire, the complaining party must

“‘adequately apprise[ ] the trial court of the nature of the inquiry’” she wished to

make of the venire panel. Vasquez, 189 S.W.3d at 758 (quoting Babcock, 767

S.W.2d at 707); see also Odom v. Clark, 215 S.W.3d 571, 574 (Tex. App.—Tyler

39
2007, pet. denied). Generally, “[when] counsel merely states a subject area in

which he wishes to propound questions, ‘but fails to present the trial court with the

specific questions he wishes to ask, the trial court is denied an opportunity to make

a meaningful ruling and error is not preserved.’” In re Commitment of Polk, No.

09–10–00127–CV, 2011 WL 662928, at *3 (Tex. App.—Beaumont Feb. 24, 2011,

pet. denied) (mem. op.) (quoting Odom, 215 S.W.3d at 574). Nonetheless, “[t]here

is no requirement to place specific questions in the record if the nature of the

questions is apparent from the context.” Babcock, 767 S.W.2d at 708 (concluding

that language in motions in limine together with recorded voir dire of excused juror

on the subject matter at issue made it “obvious” what questions Babcocks wanted

to ask venire panel).

Here, Mother did not make a record of the questions she would have asked

the jury about the general topic of conservatorship. Nor are those questions

otherwise obvious from the context of the record. Because her potential questions

regarding conservatorship were neither presented to the trial court nor otherwise

apparent from the record, Mother has not preserved this issue for our review. See

Polk, 2011 WL 662928, at *3 (holding that Polk had not preserved complaint that

trial court abused its discretion when it forbade Polk from discussing with the

venire panel topic of civil commitment because record did not reflect what

questions Polk would have asked venire panel regarding that topic); Odom, 215

40
S.W.3d at 574–75 (“[T]he trial court was merely informed of ten broad areas of

inquiry. Because the Odoms’ potential questions were neither before the trial court

nor apparent from the context in which their areas of inquiry were stated, the

Odoms have failed to preserve their issue for review.”).

We overrule Mother’s second issue.

C. Closing Argument

In her third issue, Mother asserts that she was denied a fair trial because,

during closing arguments, the Department was “permitted to make improper jury

argument and to ask the jury to be specifically guided and influenced by facts not

in evidence.” Mother points to two instances during closing argument in which

Mother’s counsel objected to the Department’s remarks. The trial court sustained

both objections; however, Mother did not request the trial court to instruct the jury

to disregard the comments.

“Appellate complaints of improper jury argument must ordinarily be

preserved by timely objection and request for an instruction that the jury disregard

the improper remark.” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). A

complaint of incurable argument may be asserted and preserved in a motion for

new trial, even without a complaint and ruling during the trial. Id. (citing TEX. R.

CIV. P. 324(b)(5)). Here, Mother did not request the trial court to instruct the jury

to disregard the remarks after her objections were sustained. Nor did she file a

41
motion for new trial, asserting that the argument was incurable. Accordingly,

Mother’s complaint regarding the Department’s jury argument is not preserved for

our review. See id.; see also Estate of Muniz v. Ford Motor Co., No. 04–12–

00263–CV, 2013 WL 2645284, at *13 (Tex. App.—San Antonio June 12, 2013, no

pet.) (mem. op.) (holding that complaint about remark made by opponent during

closing argument waived when party did not seek an instruction to disregard after

trial court sustained objection to remark).

We overrule Mother’s third issue.

Conclusion

We reverse the trial court’s judgment with respect to the termination of the

parent-child relationship between Father and D.W. and remand that issue to the

trial court for further proceedings. We otherwise affirm the judgment.

Laura Carter Higley
Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

42