IN THE TENTH COURT OF APPEALS
No. 10-19-00235-CV
IN THE INTEREST OF S.R., JR., A CHILD
From the 278th District Court Madison County, Texas Trial Court No. 18-16060
MEMORANDUM OPINION
Amy and S.R., Sr. appeal from a judgment that terminated their parental rights to
S.R., Jr. Amy complains that the trial court erred by not providing proper
admonishments regarding the appointment of counsel and by refusing to timely appoint
counsel, the trial court erred by failing to determine the child's status as an Indian child
pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §1912, and that the
Department erred by failing to inquire as to the child's status as an Indian child once it
was put on notice. S.R., Sr. complains that the trial court erred by failing to properly
admonish him and denying his request for appointed counsel at the adversary hearing,
that the evidence was insufficient for the trial court to have terminated his rights pursuant
to Family Code Section 161.001(b)(1)(D), and that the trial court erred by failing to determine the child's status as an Indian child pursuant to the ICWA. Because we find
that the trial court reversibly erred in not properly admonishing Amy and S.R., Sr., we
reverse the judgment of the trial court and remand this proceeding for a new trial.
REQUEST FOR COUNSEL
In Amy and S.R., Sr.'s first issues, they complain that the trial court erred by not
properly admonishing them or appointing them counsel at the adversary hearing
conducted shortly after S.R., Jr.'s removal. When Amy and S.R., Sr. appeared at the
adversary hearing, there had been an agreement reached regarding the placement of the
child. However, prior to taking testimony, the Department advised the trial court that
Amy and S.R., Sr. were requesting the appointment of counsel. The trial court denied
their request at that time because the trial court determined that because the parents were
agreeing with the temporary placement of S.R., Jr. with Amy's parents, they were not in
opposition to the lawsuit. Shortly after the adversary hearing, the parents jointly filed a
pro se motion to dismiss the case. At the status hearing, the trial court did not admonish
the parents regarding their right to counsel. At the end of the first permanency hearing,
when the Department indicated that it wished to remove the child from its agreed
placement with Amy's parents, both parents ultimately requested and were appointed
separate counsel, who represented them throughout the rest of the proceedings.
S.R., Sr. argues that the trial court's failure to admonish him properly regarding
his right to counsel and to appoint him counsel at the adversary hearing irreparably
prejudiced his case. Amy requests that the proceeding be reversed and remanded so that
In the Interest of S.R., Jr., a Child Page 2 she could be properly admonished regarding the right to counsel at the onset of the
lawsuit.
Section 107.013(a)(1) mandates the appointment of an attorney ad litem for an
indigent parent who opposes the termination of the parent-child relationship in a suit
filed by the Department. TEX. FAM. CODE ANN. § 107.013(a)(1). To trigger the process for
mandatory appointment of counsel in a termination proceeding, a parent must file an
affidavit of indigence pursuant to Rule 145 of the Texas Rules of Civil Procedure. TEX. R.
CIV. P. 145; In re B.C., No. 19-0306 (Tex., Dec. 20, 2019), available at
https://www.txcourts.gov/media/1445387/190306.pdf.
Additionally, the trial court is required to admonish a parent at the first hearing at
which the parent appears of: (1) their right to be represented by an attorney, and (2) if
they are indigent and appearing in opposition to the suit, the right to have an attorney
appointed to represent them in the proceedings. TEX. FAM. CODE ANN. § 107.013(a-1)(1),
(2). Additionally, at the status hearing and all permanency hearings, the trial court is
required to admonish a parent who is not represented by an attorney of the right to be
represented by an attorney, and if they are indigent and appear in opposition of the suit,
of their right to a court-appointed attorney. TEX. FAM. CODE ANN. § 263.0061(a)(1).
The record does not indicate that the trial court gave the parents the proper
admonishments at the adversary hearing, the status hearing, or the first permanency
hearing. At the adversary hearing, the parents and the Department reached an agreement
for the temporary placement of the child, which the trial court informed the parents
In the Interest of S.R., Jr., a Child Page 3 meant that they were not in opposition to the suit, and refused to consider appointing
counsel for either parent. The record indicates that although they were in agreement with
placing the child temporarily with Amy's parents, both Amy and S.R., Sr., but particularly
S.R., Sr., were not in agreement with the Department's involvement. The trial court erred
by not providing the proper admonishments to the parents regarding their right to
counsel for the adversary hearing, the status hearing, and the first permanency hearing.
However, the duty to appoint counsel was not triggered because the parents had not filed
an affidavit of indigency required by Section 107.013(d), although the record appears to
show that the trial court did not allow them to do so because of its erroneous belief that
the parents were not in opposition to the suit. See In re B.C., No. 19-0306 (Tex., Dec. 20,
2019), available at https://www.txcourts.gov/media/1445387/190306.pdf.
As relevant to this proceeding, Rule of Appellate Procedure 44.1(a)(1) states that
this judgment may not be reversed unless this Court concludes that the error "probably
caused the rendition of an improper judgment." TEX. R. APP. P. 44.1(a)(1); In re B.C., No.
19-0306 (Tex., Dec. 20, 2019), available at
https://www.txcourts.gov/media/1445387/190306.pdf. Amy and S.R., Sr. were deprived
of the appointment of counsel prior to the adversary hearing, and were subsequently
without counsel at the status hearing, the dismissal hearing, and the first permanency
hearing conducted by the trial court. While Amy and S.R., Sr. were ultimately appointed
counsel near the end of the first permanency hearing, they were without counsel for
approximately one-third of the time the case was pending. At the first permanency
In the Interest of S.R., Jr., a Child Page 4 hearing, the Department was recommending removal of the child from Amy's parents
due in part to conduct of Amy and S.R., Sr. Both Amy and S.R., Sr. testified in the hearings
without the benefit of the advice of counsel. Their conduct after the adversary hearing
and the testimony that was given at those hearings where they were unrepresented was
included in the evidence presented at trial in determining whether or not they had
completed their service plans and was relevant to the best interest finding supporting the
termination. In this case, given the circumstances, we find that the error was not harmless
and reversal is required. TEX. R. APP. P. 44.1(a)(1). We reverse and remand this
proceeding for a new trial. Amy and S.R., Sr.'s first issues are sustained. Because we
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IN THE TENTH COURT OF APPEALS
No. 10-19-00235-CV
IN THE INTEREST OF S.R., JR., A CHILD
From the 278th District Court Madison County, Texas Trial Court No. 18-16060
MEMORANDUM OPINION
Amy and S.R., Sr. appeal from a judgment that terminated their parental rights to
S.R., Jr. Amy complains that the trial court erred by not providing proper
admonishments regarding the appointment of counsel and by refusing to timely appoint
counsel, the trial court erred by failing to determine the child's status as an Indian child
pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §1912, and that the
Department erred by failing to inquire as to the child's status as an Indian child once it
was put on notice. S.R., Sr. complains that the trial court erred by failing to properly
admonish him and denying his request for appointed counsel at the adversary hearing,
that the evidence was insufficient for the trial court to have terminated his rights pursuant
to Family Code Section 161.001(b)(1)(D), and that the trial court erred by failing to determine the child's status as an Indian child pursuant to the ICWA. Because we find
that the trial court reversibly erred in not properly admonishing Amy and S.R., Sr., we
reverse the judgment of the trial court and remand this proceeding for a new trial.
REQUEST FOR COUNSEL
In Amy and S.R., Sr.'s first issues, they complain that the trial court erred by not
properly admonishing them or appointing them counsel at the adversary hearing
conducted shortly after S.R., Jr.'s removal. When Amy and S.R., Sr. appeared at the
adversary hearing, there had been an agreement reached regarding the placement of the
child. However, prior to taking testimony, the Department advised the trial court that
Amy and S.R., Sr. were requesting the appointment of counsel. The trial court denied
their request at that time because the trial court determined that because the parents were
agreeing with the temporary placement of S.R., Jr. with Amy's parents, they were not in
opposition to the lawsuit. Shortly after the adversary hearing, the parents jointly filed a
pro se motion to dismiss the case. At the status hearing, the trial court did not admonish
the parents regarding their right to counsel. At the end of the first permanency hearing,
when the Department indicated that it wished to remove the child from its agreed
placement with Amy's parents, both parents ultimately requested and were appointed
separate counsel, who represented them throughout the rest of the proceedings.
S.R., Sr. argues that the trial court's failure to admonish him properly regarding
his right to counsel and to appoint him counsel at the adversary hearing irreparably
prejudiced his case. Amy requests that the proceeding be reversed and remanded so that
In the Interest of S.R., Jr., a Child Page 2 she could be properly admonished regarding the right to counsel at the onset of the
lawsuit.
Section 107.013(a)(1) mandates the appointment of an attorney ad litem for an
indigent parent who opposes the termination of the parent-child relationship in a suit
filed by the Department. TEX. FAM. CODE ANN. § 107.013(a)(1). To trigger the process for
mandatory appointment of counsel in a termination proceeding, a parent must file an
affidavit of indigence pursuant to Rule 145 of the Texas Rules of Civil Procedure. TEX. R.
CIV. P. 145; In re B.C., No. 19-0306 (Tex., Dec. 20, 2019), available at
https://www.txcourts.gov/media/1445387/190306.pdf.
Additionally, the trial court is required to admonish a parent at the first hearing at
which the parent appears of: (1) their right to be represented by an attorney, and (2) if
they are indigent and appearing in opposition to the suit, the right to have an attorney
appointed to represent them in the proceedings. TEX. FAM. CODE ANN. § 107.013(a-1)(1),
(2). Additionally, at the status hearing and all permanency hearings, the trial court is
required to admonish a parent who is not represented by an attorney of the right to be
represented by an attorney, and if they are indigent and appear in opposition of the suit,
of their right to a court-appointed attorney. TEX. FAM. CODE ANN. § 263.0061(a)(1).
The record does not indicate that the trial court gave the parents the proper
admonishments at the adversary hearing, the status hearing, or the first permanency
hearing. At the adversary hearing, the parents and the Department reached an agreement
for the temporary placement of the child, which the trial court informed the parents
In the Interest of S.R., Jr., a Child Page 3 meant that they were not in opposition to the suit, and refused to consider appointing
counsel for either parent. The record indicates that although they were in agreement with
placing the child temporarily with Amy's parents, both Amy and S.R., Sr., but particularly
S.R., Sr., were not in agreement with the Department's involvement. The trial court erred
by not providing the proper admonishments to the parents regarding their right to
counsel for the adversary hearing, the status hearing, and the first permanency hearing.
However, the duty to appoint counsel was not triggered because the parents had not filed
an affidavit of indigency required by Section 107.013(d), although the record appears to
show that the trial court did not allow them to do so because of its erroneous belief that
the parents were not in opposition to the suit. See In re B.C., No. 19-0306 (Tex., Dec. 20,
2019), available at https://www.txcourts.gov/media/1445387/190306.pdf.
As relevant to this proceeding, Rule of Appellate Procedure 44.1(a)(1) states that
this judgment may not be reversed unless this Court concludes that the error "probably
caused the rendition of an improper judgment." TEX. R. APP. P. 44.1(a)(1); In re B.C., No.
19-0306 (Tex., Dec. 20, 2019), available at
https://www.txcourts.gov/media/1445387/190306.pdf. Amy and S.R., Sr. were deprived
of the appointment of counsel prior to the adversary hearing, and were subsequently
without counsel at the status hearing, the dismissal hearing, and the first permanency
hearing conducted by the trial court. While Amy and S.R., Sr. were ultimately appointed
counsel near the end of the first permanency hearing, they were without counsel for
approximately one-third of the time the case was pending. At the first permanency
In the Interest of S.R., Jr., a Child Page 4 hearing, the Department was recommending removal of the child from Amy's parents
due in part to conduct of Amy and S.R., Sr. Both Amy and S.R., Sr. testified in the hearings
without the benefit of the advice of counsel. Their conduct after the adversary hearing
and the testimony that was given at those hearings where they were unrepresented was
included in the evidence presented at trial in determining whether or not they had
completed their service plans and was relevant to the best interest finding supporting the
termination. In this case, given the circumstances, we find that the error was not harmless
and reversal is required. TEX. R. APP. P. 44.1(a)(1). We reverse and remand this
proceeding for a new trial. Amy and S.R., Sr.'s first issues are sustained. Because we
have determined that this proceeding is to be reversed for a new trial, it is not necessary
to address Amy and S.R., Sr.'s other issues.
CONCLUSION
Having found that the trial court erred by failing to properly admonish the parents
of their right to counsel, we reverse the judgment of the trial court and remand this
proceeding for a new trial.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Neill Reversed and remanded Opinion delivered and filed December 31, 2019 [CV06]
In the Interest of S.R., Jr., a Child Page 5