in the Interest of Steven Mikel Brown, Kenneth Jerry Harpin, Jr., Kira Nicole Harpin, and David Allen Harpin, Minor Children

 

 

NUMBER 13-98-504-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

IN THE INTEREST OF S. M. B.,

K. J. H., JR., K. N. H., AND D. A. H., MINOR CHILDREN

___________________________________________________________________

On appeal from the 24th District Court

of Victoria County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez

Opinion by Justice Dorsey

Tamara Harpin appeals from an order dated August 4, 1998, terminating her parent-child relationships with her four children. After a full evidentiary hearing where Harpin was represented by counsel, the court found by clear and convincing evidence that termination was in the best interests of the children and appointed the Texas Department of Protective and Regulatory Services permanent managing conservator of the children. The court found by clear and convincing evidence that Harpin had:

(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the physical or emotional well-being of the children;

(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children; and

(3) failed to support the children in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition.

Harpin contends that she was deprived of her right to counsel as required by Texas Family Code section 107.013 because she was not provided with an attorney in 1994, immediately after the original petition to terminate her parental rights was filed, and that the resulting termination was directly caused by her lack of counsel during that time period. We disagree.

Section 107.013(a) of the Texas Family Code requires the court to appoint an attorney ad litem to represent the interests of an indigent parent who responds in opposition to a suit seeking termination of his or her parent-child relationship. Tex. Fam. Code Ann. 107.013(a) (Vernon Supp. 2000). The statute is silent as to when appointment must occur. Id.; compare Tex. Fam. Code Ann. 107.001(b) (Vernon Supp. 2000) (requiring appointment of guardian ad litem for the child in a termination proceeding "immediately after the filing of the petition but before the full adversary hearing"). While several courts have confirmed the mandatory nature of the statute, none has taken up the question of when appointment of counsel must occur. See e.g. In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.--Corpus Christi 1998, no pet.); Interest of B.R., 950 S.W.2d 113, 115-16 (Tex. App.--El Paso 1997, no writ); Ybarra v. Texas Dept. of Human Svcs., 869 S.W.2d 574, 580 (Tex. App.--Corpus Christi 1993, no writ); Odom v. Batts, 791 S.W.2d 677 (Tex. App.--San Antonio 1990, no writ). The courts that have addressed this issue have viewed it more in terms of whether the party was provided reasonable access to counsel. See Interest of B.R., 950 S.W.2d at 115-16 (holding that record was devoid of evidence that party was denied reasonable access to counsel where attorney had been appointed for inmate over three years prior to time of trial but where inmate contends that he only conferred with attorney in person for 1 hours immediately preceding the trial); cf. Ybarra, 869 S.W.2d at 580 (holding that trial court did not err in failing to appoint counsel where party did not request appointed counsel and was represented by retained counsel at trial).

Harpin was provided with court-appointed counsel over two years prior to her trial. She did not request appointment of counsel prior to that time. The trial court's actions did not violate the letter of Texas Family Code section 107.013. We decline to extend the statute by judicially engrafting a time requirement that does not exist, especially in light of the fact that the statute directing appointment of counsel for the children involved in termination proceedings does contain a time requirement.

Likewise, we do not find that the trial court's actions ran afoul of the Constitution. The seminal case in this area of the law is Lassiter v. Dept. of Social Srvcs. of Durham Co., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). In Lassiter, the United States Supreme Court took up the question of whether due process requires that an indigent parent be represented by court-appointed counsel when faced with a suit for involuntary termination of their parental rights. Id. The court concluded that no absolute right to counsel exists, but that under certain circumstances, fundamental fairness may require the appointment of counsel in a termination proceeding. Id. at 31-32. While the court noted that a "parent's interest in the accuracy and injustice of the decision to terminate his or her parental status is, . . . a commanding one," this interest must be balanced against the presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty. Id. at 28, 32. The court found that the trial did not violate fundamental fairness, noting that the petition for termination did not contain an allegation upon which criminal charges could be based, the presence of counsel could not have made a significant difference in the effect of the evidence that neither the mother nor the grandmother was interested in the well-being of the child, and that the mother had not bothered to appear for a previous custody hearing. Ultimately, the court said, "the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings [is] to be answered in the first instance by the trial court, subject of course, to appellate review." Id. at 33.

To be certain, this Court is mindful of the immense gravity of a termination proceeding. As we have stated before,

The relationship between parent and child is perhaps the strongest bond between people in nature and the keystone of society. The transmission of cultural values, social status, and title to land has historically been dependent on one being the child of another. The parent-child relationship is recognized and protected by law to such a degree it is of federal constitutional dimensions. . . .

The termination of parental rights is final and ends all legal ties between the parent and child, except the child's right of inheritance. . . It is of greater significance than a denial of custody or managing conservatorship to a parent, because the parties become legal strangers to one another, with neither having a right to visit or see the other.

Because the termination of the parent-child relationship severs rights treasured by the law, strict standards apply; evidence to meet those standards must be clear and convincing. . . . The constitutional dimensions of the relationship require that statutes permitting termination be strictly construed in favor of the parent, and that any effort by the State to terminate it be strictly scrutinized. . . .

Ybarra, 574 S.W.2d at 576 (internal citations omitted). Still, we do not believe that either the family code or the Constitution requires that court-appointed representation be provided to an indigent parent immediately upon the filing of a petition for termination of parental rights when the parent does not request counsel at that time, makes minimal attempts for several years prior to the termination to repair the problems that existed so that reunification of the family might be possible, and the parent does, in fact, receive adequate representation over two years prior to and during the actual adversarial hearing regarding termination.

The decision of the trial court is AFFIRMED.

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 31st day of March, 2000.