In the Interest of TDN (Tex.App.- Houston [14th Dist] June 26,
2008)(Frost)
(termination of parental rights, denial of oral motion for continuance)
AFFIRMED: Opinion by Justice Frost  
Before Justices Fowler, Frost and Seymore
14-07-00387-CV        In the Interest of T.D.N.
Appeal from 313th District Court of Harris County
Concurring Opinion by Justice Seymore  

M A J O R I T Y   M E M O R A N D U M  O P I N I O N

A father appeals the termination of his parental rights, asserting that the trial
court erred in not granting his oral motions for continuance.  Because the
father failed to preserve error for appellate review, we affirm.

I.  Factual and Procedural Background

The Department of Family and Protective Services filed this action to
terminate  appellant Faustino Orosco's parental rights as to T.D.N.  Though
our record contains no request for a bench warrant, the trial court signed a
bench warrant on February 27, 2007, ordering the Harris County Sheriff to
deliver Orosco to the trial court on April 24, 2007, for the trial in this case.  
According to Orosco's counsel, Orosco was transferred to the Texas
Department of Criminal Justice on April 7, 2007; therefore, at the time of trial,
Orosco was in the custody of the Texas Department of Criminal Justice,
rather than in the custody of the Harris County Sheriff.  Orosco did not
request, and the trial court did not sign, any bench warrant directed to the
Texas Department of Criminal Justice.  Neither the Harris County Sheriff nor
the Texas Department of Criminal Justice delivered Orosco to the trial court
on April 24, 2007.  At trial, Orosco,s counsel twice orally requested a
continuance of the trial so that Orosco could be present at the proceedings.  
The trial court did not rule on either oral motion.  Orosco's counsel did not
request a ruling or object to the trial court's failure to rule or to any alleged
refusal by the trial court to rule on the motions.  Orosco's counsel did not
request that the trial court order the Texas Department of Criminal Justice to
deliver Orosco to the trial court.  The trial court rendered a judgment
terminating Orosco's parental rights.

II.  Issue and Analysis

In his sole issue, Orosco asserts that the trial court abused its discretion
when it did not grant his oral motions for continuance.  We conclude that
Orosco failed to preserve error for appellate review.  

A motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, consent of the parties, or by operation of law.  Tex.
R. Civ. P. 251; In the Interest of B.S.W., No. 14-04-00496-CV, 2004 WL
2964015, at *4 (Tex. App.- Houston [14th Dist.] Dec. 23, 2004, no pet.)
(mem. op.).  Both of Orosco's motions for continuance were oral, and the
record does not contain a written motion for continuance or an affidavit.  The
record also does not reflect that the parties consented to a continuance, nor
does Orosco assert that a continuance should have been granted by
operation of law.  

Because Orosco did not comply with Rule 251, the trial court did not abuse
its discretion by failing to grant a continuance.  See In the Interest of B.S.W.,
2004 WL 2994015, at *4; Ohlhausen v. Thompson, 704 S.W.2d 434, 436B37
(Tex. App.- Houston [14th Dist.] 1986, no writ).  

In addition, Orosco failed to preserve error under Texas Rule of Appellate
Procedure 33.1, which generally requires a party complaining on appeal to
have obtained an adverse ruling on the appellate complaint in the trial court.  
See Tex. R. App. P. 33.1(a).  The appellate record reflects that the trial court
did not rule on Orosco's motions for continuance, either expressly or
implicitly.  Orosco did not request the trial court to rule on these oral motions,
nor did he object to any alleged refusal of the trial court to rule on them.  See
Clarke v. Hunter's Glen Comty. Ass'n, No. 14-03-00971-CV, 2004 WL
1313294, at *1 (Tex. App.- Houston [14th Dist.] June 15, 2004, no pet.)
(mem. op.).  By failing to do so, Orosco waived the complaint.  See id.

The Texas Supreme Court has ruled that a person in Orosco's position does
not have an absolute right to be present at trial.  See In re Z.L.T., 124
S.W.3d 163, 165 (Tex. 2003).  Orosco's counsel did not preserve error
regarding Orosco's request for a continuance.  In addition, Orosco does not
argue or brief on appeal, and the record does not reflect, that had he been
present at trial, the trial court's judgment probably would have been different.

Because Orosco failed to preserve error on the only issue he asserts on
appeal, we affirm the trial court's judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Memorandum Opinions filed
June 26, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.  
(Seymore, J., concurring).

CONCURRING OPINION BY JUSTICE CHARLES SEYMORE

in In Interest of T.D.N.

C O N C U R R I N G  M E M O R A N D U M  O P I N I O N

I concur with majority's conclusion that Orosco failed to preserve
error for appellate review.  However, I do not lightly join in a
disposition upholding the trial court's order terminating parental
rights.  Accordingly,  I write separately to address implicit denial of
Orosco's access to the court while incarcerated.

It is my considered opinion that our courts should exercise great
caution to protect the rights of the incarcerated when conducting a
civil proceeding that involves termination of parental rights.  Litigants
should not be denied access to the courts simply because they are
incarcerated.  In re Z.L.T., 124 S.W.3d 163, 165-166 (Tex. 2003).  

However, an inmate does not have the absolute right to appear in
person in every court proceeding.  Id.  Trial courts should consider a
number of factors when deciding whether to grant an inmate's request
for a bench warrant, including:

(1) the cost and inconvenience of transporting the prisoner to the
courtroom;

(2) the security risk the prisoner presents to the court and public;

(3) whether the prisoner's claims are substantial;

(4) whether the matter's resolution can reasonably be delayed until the
prisoner's release;

(5) whether the prisoner can and will offer admissible, noncumulative
testimony that cannot be effectively presented by deposition,
telephone, or some other means;

(6) whether the prisoner's presence is important in judging his
demeanor and credibility;

(7) whether the trial is to the court or a jury; and

(8) the prisoner's probability of success on the merits.

Id.  Our rules place the burden on litigants to identify with sufficient
specificity the grounds for the ruling they seek.  Id.  Since a prisoner
has no absolute right to be present in a civil action, the prisoner
requesting a bench warrant must justify the need for his presence.  Id.  

Orosco argues that his appearance in court "would neither have
hindered nor burdened the daily operations of the court."  

Orosco fails to address all of the above factors or point this court to
portions of the record which might support an argument that the trial
court violated his fundamental right to participate in proceedings
which could result in termination of parental rights.  Accordingly, I
concur with the majority's conclusion that the trial court did not abuse
its discretion by refusing to grant Orosco's motion for continuance.

/s/        Charles W. Seymore

Justice

Judgment rendered and Majority and Concurring Memorandum
Opinions filed June 26, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.  

(Frost, J., majority).