in the Interest of M.P., a Child

• Court: Court of Appeals of Texas
• Decided: February 7, 2019
• Docket: 02-18-00361-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00361-CV ___________________________

IN THE INTEREST OF M.P., A CHILD

On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV17-00659

Before Pittman, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

I. Introduction

This is an ultra-accelerated appeal1 in which Appellant S.P. (Mother) appeals

the termination of her parental rights to her son Michael2 following a bench trial.

Mother’s sole issue is whether the trial court violated her statutory and constitutional

rights by failing to appoint counsel because she had filed an affidavit of indigency

prior to the termination trial. The Department of Family and Protective Services

concedes that the trial court’s failure to appoint counsel for Mother constitutes error.

Because a trial court is required to appoint an attorney ad litem to represent an

indigent parent in a government-initiated termination proceeding and because the

failure to do so constitutes reversible error, we reverse and remand for the trial court

to appoint counsel for Mother and to conduct a new trial.

II. Procedural Background 3

During the pretrial hearing on October 18, 2018, Mother sought to have

counsel appointed to represent her. The record includes a statement of inability to

1 See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed). 2 See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights). 3 Because this appeal involves solely the failure to appoint counsel for Mother, we need not set forth facts related to the removal of the child or summarize the testimony given during the termination trial.

2 afford payment of court costs filed by Mother that same day. That document reflects

that Mother had a monthly income of $500. Due to some confusion, Mother left the

pretrial hearing and was not appointed counsel. 4

The termination trial proceeded four days later before a visiting judge. At the

outset of the termination trial, the visiting judge announced the parties and asked

whether Mother was representing herself pro se. Mother responded that she had

applied for a court-appointed attorney but that none had been appointed. The

Department responded that it was not in Michael’s best interest to continue the

termination trial to another date in order for Mother to be appointed counsel. The

attorney ad litem for the child implicitly opposed any continuance for the

appointment of counsel for Mother, stating that the primary concern was permanency

for Michael because the case had been ongoing “for quite a while.” The visiting judge

concluded,

Everybody is here today. [The termination trial has] been scheduled for a long time. There’s been failures to appear. The child is coming up on -- the case is coming up on a deadline[,] and the child needs to have some permanency. I’m going to proceed at this time without appointing an attorney.

[Mother], I will give you every opportunity to speak for yourself. I will be lenient with your presenting your case and what you want to say so -- but, you know, and I’ll certainly listen to what you have to say and

4 Thus, although Mother asserted her right to counsel by filing an affidavit of indigency and although a hearing to determine Mother’s right to counsel was scheduled—as a matter to be heard and determined during the pretrial hearing—no evidence was heard on the matter, and Mother’s right to counsel was ultimately not determined at the pretrial hearing due to the confusion that ensued.

3 just because you don’t have an attorney doesn’t mean I do not, you know, value what you’re trying to present to the Court.[5]

The termination trial then commenced, and Mother’s parental rights to Michael

were terminated. Following the termination trial, Judge Janelle Haverkamp (the

presiding judge of the trial court) appointed counsel for Mother to appeal the

termination of her parental rights.6

III. Mother Was Entitled to Appointed Counsel

In her sole issue, Mother argues that the trial court violated her statutory and

constitutional rights by failing to appoint counsel for her prior to proceeding with the

termination trial.

The Texas Family Code provides that in a suit filed by a governmental entity in

which termination of the parent-child relationship is requested, the court shall appoint

an attorney ad litem to represent the interests of an indigent parent who responds in

opposition to the termination. Tex. Fam. Code Ann. § 107.013(a)(1). A parent’s

filing of an affidavit of indigency “trigger[s] the process for mandatory appointment

of an attorney ad litem.” In re V.L.B., 445 S.W.3d 802, 805–07 (Tex. App.—Houston

[1st Dist.] 2014, no pet.) (op. on reh’g) (citing Tex. Fam. Code Ann. § 107.013(d)).

Thus, at the outset of the termination trial, the trial judge was made aware that 5

Mother had filed an affidavit of indigency but had not been appointed counsel. 6 The letter appointing counsel lists the style of the case as “The State of Texas v. [Mother]” and states that Mother has been convicted of a felony but that she is not in jail. Because the letter was filed in the underlying termination case and references the civil cause number that matches the one on the termination order, it appears that the wrong form letter for appointing counsel was used.

4 Complete failure of a trial court to appoint counsel for indigent parents constitutes

reversible error. See id. at 808; In re T.R.R., 986 S.W.2d 31, 37 (Tex. App—-Corpus

Christi 1998, no pet.).

Here, the Department does not challenge that Mother is indigent but rather

acknowledges that the appointment of appellate counsel for Mother supports the fact

that she is indigent. The Department further acknowledges that when Mother filed

her affidavit of indigency, that triggered the trial court’s mandatory duty to appoint

her an attorney upon a finding of indigence. The Department thus “concedes that

upon executing her affidavit of indigency at the behest of the judge presiding over the

pretrial hearing, the trial court should have addressed [Mother’s] affidavit of indigence

prior to the trial on the merits and should have appointed her an attorney ad litem.”

We agree and hold that the trial court reversibly erred by failing to appoint an attorney

ad litem for Mother before proceeding with a trial on the merits. See V.L.B., 445

S.W.3d at 808 (based on mandatory nature of appointment of counsel for indigent

parent, holding that trial court erred by proceeding to termination trial without first

considering indigence affidavit filed the week before). Accordingly, we sustain

Mother’s sole issue.

IV. Conclusion

Having sustained Mother’s sole issue, we reverse the portion of the judgment

specifically terminating Mother’s parental rights to Michael and remand the case back

to the trial court for appointment of counsel for Mother and for a new trial; we leave

5 undisturbed the remainder of the trial court’s judgment. Any proceeding on remand

must be commenced within 180 days of this court’s mandate. See Tex. R. App. P.

28.4(c).

/s/ Dabney Bassel

Dabney Bassel Justice

Delivered: February 7, 2019