in the Interest of L.M., a Child

• Court: Court of Appeals of Texas
• Decided: July 22, 2022
• Docket: 06-22-00018-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00018-CV

IN THE INTEREST OF L.M., A CHILD

On Appeal from the County Court at Law Panola County, Texas Trial Court No. 2018-006

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

On October 14, 2019, the Department of Family and Protective Services filed a petition

to modify the trial court’s prior order1 that denied the Department’s prior petition to terminate

Mother’s and Father’s parental rights to their children, L.M. and K.M.2 After a final hearing, the

trial court terminated Mother’s parental rights to L.M.3 under statutory grounds (D), (E), (O), and

(P) of the Texas Family Code4 and terminated Father’s parental rights under statutory grounds

(C) and (E) of the Texas Family Code.5 The trial court also found that termination of Mother’s

and Father’s parental rights was in the best interest of L.M. See TEX. FAM. CODE ANN.

§ 161.001(b)(2).

Mother and Father both appeal. Mother’s attorney has filed an Anders brief with this

Court arguing that there are no non-frivolous issues that can be raised on appeal. See Anders v.

California, 386 U.S. 738, 743–44 (1967). Father, however, argues that the trial court erred when

the trial court failed to admonish him of his right to be represented by counsel and failed to

appoint him counsel even though he was indigent.6

1 The prior order appointed the Department the permanent managing conservator of the children and appointed Mother possessory conservator. 2 To protect the identities of the children, we refer to them by their initials and to their parents as “Mother” and “Father.” See TEX. R. APP. P. 9.8(b). 3 K.M. was eighteen years old at the time the final order on the motion to modify was entered. 4 See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P). 5 See TEX. FAM. CODE ANN. § 161.001(b)(1)(C), (E). 6 On appeal, Father also challenges the factual and legal sufficiency of the evidence supporting the trial court’s statutory grounds and best-interest findings. Because his due process complaint is dispositive of this appeal, we do not need to address these issues. See TEX. R. APP. P. 47.1. 2 Because we agree that there are no meritorious grounds for reversal of the trial court’s

order terminating Mother’s parental rights to her children, we affirm the trial court’s order

terminating Mother’s parental rights. However, because we find that the trial court erred when it

failed to admonish Father of his right to counsel as required by Section 107.013(a-1) of the

Texas Family Code, we reverse the trial court’s order terminating Father’s parental rights and

remand the case to the trial court for a new trial.

I. No Meritorious Grounds for Reversal of the Termination of Mother’s Parental Rights

Mother’s court-appointed appellate counsel has filed a motion to withdraw and a brief

discussing the applicable law and evaluating the entire record in this case. Counsel states that

she has reviewed the record and has found no genuinely arguable issues that could be raised on

appeal. The brief sets out the procedural history of the case and summarizes the evidence

elicited during the trial court proceedings. Meeting the requirements of Anders, counsel has

provided a professional evaluation of the record demonstrating why there are no arguable

grounds to be advanced. See Anders, 386 U.S. at 743–44; In re Schulman, 252 S.W.3d 403, 406

(Tex. Crim. App. 2008) (orig. proceeding); see In re P.M., 520 S.W.3d 24, 27 (Tex. 2016)

(per curiam) (recognizing that Anders procedures apply in parental-rights termination cases).

On April 22, 2022, counsel mailed to Mother copies of the brief and the motion to

withdraw. Mother was informed of her rights to review the record and file a pro se response. On

May 24, this Court granted Mother’s pro se motion for access to the appellate record and

forwarded a copy of the appellate record to Mother. By that same letter, this Court informed

Mother that any pro se response was due on or before June 23. On June 29, this Court further 3 informed Mother that the case would be set for submission on the briefs on July 20. We received

neither a pro se response from Mother nor a motion requesting an extension of time in which to

file such a response.

We have determined that Mother’s appeal is wholly frivolous. We have independently

reviewed the entire appellate record and, like counsel, have determined that no arguable issue

supports an appeal by Mother.7 See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.

2005). Even so, we deny Mother’s counsel’s motion to withdraw. See In re P.M., 520 S.W.3d at

27 (noting that, in parental-rights termination cases, court-appointed counsel’s duty to her client

generally extends “through the exhaustion of appeals,” “including the filing of a petition for

review” in the Texas Supreme Court). If Mother desires to pursue this matter in the Texas

Supreme Court, counsel may fulfill her duty “by filing a petition for review that satisfies the

standards for an Anders brief.” See id. at 28.

II. The Trial Court Failed to Admonish Father of His Right to Counsel

On appeal, Father contends that the trial court erred when it denied him his right to

counsel in violation of his constitutional rights. He argues that the trial court erred both when it

failed to admonish him of his right to be represented by counsel and when it failed to appoint

him counsel even though he was indigent. The Department does not dispute that Father was

indigent and agrees that Father’s constitutional rights were violated by being denied appointed

counsel. Because we agree that the trial court erred when it failed to admonish him of his right

7 Our review determined, inter alia, that legally and factually sufficient evidence supported the trial court’s best- interest finding and its termination of Mother’s parental rights under statutory ground (E). 4 to counsel, we reverse the trial court’s termination of Father’s parental rights and remand

Father’s case for a new trial.

“The natural right existing between parents and their children is of constitutional

dimensions.” In re L.E.S., 471 S.W.3d 915, 919 (Tex. App.—Texarkana 2015, no pet.) (quoting

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to

make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel

v. Granville, 530 U.S. 57, 65 (2000)). For that reason, “the termination of parental rights

implicates fundamental interests.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)).

The Texas Supreme Court has recognized that, when the Department seeks termination of

parental rights, “[p]arents face a complex and nuanced family-law system that is challenging to

navigate without the guidance of counsel.” In re B.C., 592 S.W.3d 133, 137 (Tex. 2019)

(per curiam). “Considering the importance of the fundamental rights at issue, the Legislature has

adopted important safeguards in [the Family Code] to help ensure parents will not be deprived of

their parental rights without due process of law.” Id. These safeguards include a “statutory

framework [that] mandates that courts repeatedly inform unrepresented parents about their

statutory rights so they will have an adequate opportunity to understand and invoke those rights.”

Id.; see TEX. FAM. CODE ANN. §§ 107.013, 263.0061, § 262.201 (Supp.).

In any suit filed by a governmental entity that seeks the termination of parental rights,

Section 107.013 grants indigent parents the right to appointed counsel by requiring the court to

appoint an attorney for “an indigent parent of the child who responds in opposition to the

termination.” TEX. FAM. CODE ANN. § 107.013(a)(1); In re B.C., 592 S.W.3d at 135. In

5 addition, Section 107.013 requires trial courts to admonish any parent “not represented by an

attorney at the parent’s first appearance in court . . . of: (1) the right to be represented by an

attorney; and (2) if the parent is indigent and appears in opposition to the suit, the right to an

attorney ad litem appointed by the court.” TEX. FAM. CODE ANN. § 107.013(a-1); In re B.C., 592

S.W.3d at 135.

To have an attorney appointed, a parent claiming indigence must first file an affidavit of

indigence, and the trial court must make a determination that the parent is in fact indigent. In re

B.C., 592 S.W.3d at 136; TEX. FAM. CODE ANN. § 107.013(d). However, the trial court must also

inform the parent of the necessity of filing the affidavit of indigence. In re B.C., 592 S.W.3d at

136. Thus, at the parent’s first appearance in court, the trial court must admonish the indigent

parent of both his right to have appointed counsel and the procedural steps to obtain appointed

counsel.8

Here, over two years before the final hearing, Father filed his pro se answer opposing

termination of his parental rights. In his answer, Father requested the trial court to determine that

he was indigent and to appoint an attorney to represent him pursuant to Section 107.013.

Although Father was subsequently notified of several permanency hearings before the final

hearing, he failed to appear at any of those hearings. Consequently, Father’s first appearance in

court was at the final hearing.

8 Sections 262.201 and 263.0061 of the Texas Family Code also require that these admonishments be made to indigent parents appearing in opposition to termination at the fourteen-day full adversary hearing, at each status hearing, and at each permanency hearing. TEX. FAM. CODE ANN. §§ 262.201(c), (d), 263.0061(a), (b). 6 When the final hearing began, the trial court asked for announcements, and all parties

represented by counsel announced ready. Although no announcement was made for Father, the

trial court made no inquiry to find out if Father was present. Nevertheless, when the trial began,

Father was called as the Department’s first witness.

Even though Father was making his first appearance in court, was unrepresented by

counsel, had made a claim of indigence, and testified as the Department’s first witness, the trial

court never admonished him of his right to counsel, of his right to appointed counsel if he was

indigent, or of the necessity to file an affidavit of indigence in order to obtain appointed counsel.

As a result, Father was deprived of the opportunity to understand and invoke those rights. See id.

at 137. Because the trial court failed to admonish Father of his right to appointed counsel and of

the procedure necessary to obtain such counsel, as required by Section 107.013, the trial court

deprived Father of his parental rights without due process of law. See id.9 Therefore, we find

that the trial court erred.

As a result of the trial court’s failure to properly admonish Father, he was unrepresented

at trial, where his parental rights to L.M. were terminated. Since it is undisputed that Father was

indigent,10 the trial court’s failure to comply with Section 107.013 was not harmless, and reversal

is required. See id.

9 In In re B.C., the trial court clearly admonished Mother of her right to counsel at her first appearance in court. In re B.C., 592 S.W.3d at 137. Nevertheless, because the trial court failed to admonish her of her right to counsel and the right to appointed counsel at subsequent hearings at which she was present, as required by Section 263.0061, the Supreme Court found that the trial court had reversibly erred. Id. 10 As noted earlier, the Department does not dispute that Father was indigent. We also note that five days after the final hearing, an affidavit of indigence, with a finding that Father was indigent, was filed. In addition, in its 7 III. Conclusion

We affirm the trial court’s order terminating Mother’s parental rights to L.M. However,

we reverse the trial court’s order terminating Father’s parental rights to L.M. and remand this

case to the trial court for a new trial.

Scott E. Stevens Justice

Date Submitted: July 20, 2022 Date Decided: July 22, 2022

termination order, entered seven weeks after the hearing, the trial court found that Father had filed an affidavit of indigence and appointed an attorney ad litem to represent him. 8