in the Interest of K. L. W., Child v. Department of Family and Protective Services

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: In the Interest of K.L.W., A Child

Appellate case number: 01-18-00485-CV

Trial court case number: 2017-02559J

Trial court: 314th District Court of Harris County

In the prior related appeal, 01-18-00311-CV, this Court’s July 6, 2018
Memorandum Order of Abatement had abated that case for the trial court to hold a hearing
to determine the appointment of counsel for the appellants, B.B.C., the mother of the child,
K.L.W., and R.D.W., the father, who had requested the appointment of counsel. On July
10, 2018, the trial court denied Juliane Crow’s motion to withdraw as appellate counsel
and appointed Crow as both counsel and guardian ad litem for B.B.C., who was found
legally incompetent, and appointed Valeria Lee Brock as R.D.W.’s counsel. This Court’s
August 2, 2018 Order on Motions had denied the appellants’ pro se motion to transfer this
parental termination case to another appellate court, after the Texas Supreme Court had
denied their request on July 30, 2018, and dismissed as moot their motions to proceed as
pro se and special appearances because they were not entitled to hybrid representation.

On August 8, 2018, B.B.C.’s appointed counsel filed a motion to withdraw along
with an Anders brief in this Court stating that the record presents no reversible error and
that, therefore, B.B.C.’s appeal is without merit and is frivolous. See Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s Anders brief also clarified that Donald M.
Crane’s prior motion to withdraw as co-counsel for B.B.C. was reheard and withdrawn
before the trial court on July 10, 2018. The Clerk of this Court’s August 8, 2018 letter
notified B.B.C. that, absent a motion for an extension of time or a request for a copy of the
records, her pro se response to her counsel’s Anders brief is due by August 28, 2018.

On August 9, 2018, R.D.W.’s appointed counsel filed a motion to abate the appeal
in this Court. Counsel requests abatement of R.D.W.’s appeal until the trial court has ruled
on her motion to withdraw, which she filed in the trial court on August 9, 2018. Counsel
also attached two exhibits, several pages of emails indicating that R.D.W. had requested
her to file a motion to withdraw, and a notice of hearing showing that she has set her motion
to withdraw for a hearing on August 21, 2018.

Under the Texas Family Code, the trial court is responsible for appointing counsel
to represent an indigent parent, like R.D.W., in a parental termination suit. See TEX. FAM.
CODE ANN. § 107.013(a)(1) (West 2014). “A parent who the court has determined is
indigent for purposes of this section is presumed to remain indigent for the duration of the
suit and any subsequent appeal unless the court, after reconsideration on the motion of the
parent, the attorney ad litem for the parent, or the attorney representing the governmental
entity, determines that the parent is no longer indigent due to a material and substantial
change in the parent’s financial circumstances.” Id. at § 107.013(e). Once appointed, the
attorney must continue to represent the indigent parent until the suit is dismissed, the
appeals are exhausted or waived, or “‘the attorney is relieved of the attorney’s duties or
replaced by another attorney after a finding of good cause is rendered by the court on the
record.’” In the Interest of R.H., No. 01-14-00874-CV, 2015 WL 4594557, at *7 (Tex.
App.—Houston [1st Dist.] July 28, 2015, no pet.) (quoting TEX. FAM. CODE ANN. §
107.016(2) (West 2014)). No provision of the Family Code expressly provides an indigent
parent with a right of self-representation. Id.

However, this Court has held that, if a trial court elects to permit a parent in a
termination proceeding to proceed pro se, the trial court must inform the parent of the
dangers of self-representation before permitting the parent to proceed pro se. See In the
Interest of R.H., 2015 WL 4594557, at *7 (citing In the Interest of C.L.S., 403 S.W.3d 15,
21 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)). In C.L.S., a private termination
case, this Court held that “in parental termination cases, before a parent is permitted to
represent himself pro se, the record should show that the trial judge has informed him that
there are technical rules of evidence and procedure, and that he will not be given any special
consideration simply because he has asserted his right of self-representation.” 403 S.W.3d
at 21 (internal quotation marks omitted) (citing, inter alia, Faretta v. California, 422 U.S.
806, 835, 95 S. Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). And, because the “invited error”
doctrine states that “a party cannot complain on appeal that the trial court took a specific
action that the complaining party requested,” the appellant may not complain on appeal
that the trial court granted his request and released his attorney. In the Interest of R.H.,
2015 WL 4594557, at *8 (citations omitted).

Accordingly, the Court directs the Clerk of this Court to withdraw this Court’s
August 2, 2018 Order on Motions, to mark as denied the pro se appellants’ motion to
transfer, to mark Juliane Crow as lead counsel for B.B.C, and to add Donald M. Crane
as additional counsel for B.B.C. See TEX. R. APP. P. 6.1(c), 6.2. The Court grants
R.D.W.’s counsel’s motion to abate and abates this appeal for the trial court to hold a
hearing to determine whether good cause exists to permit appointed counsel for R.D.W.,
Valeria Lee Brock, to withdraw, to appoint new counsel, or to permit R.D.W. to proceed
pro se after informing him of the dangers of self-representation and, if so, to enter such
orders. See TEX. FAM. CODE ANN. § 107.016(2); In the Interest of R.H., 2015 WL
4594557, at *7. The trial court shall issue written findings of fact, conclusions of law, and
recommendations as to these issues, separate and apart from any docket sheet notations
and the written orders pertaining to withdrawal, the appointment of new counsel, or
permitting R.D.W. to proceed pro se.

Any hearing shall be conducted on or about August 21, 2018. The district clerk is
directed to notify Valeria Lee Brock, Juliane Crow, and Donald M. Crane, and a
representative of the appellee, the Texas Department of Family and Protective Services, to
appear at the hearing. The trial court shall have a court reporter record the hearing and the
court reporter is directed to file a supplemental reporter’s record within 7 days of the
hearing. The district clerk shall file a supplemental clerk’s record containing the trial
court’s orders and findings and conclusions within 7 days of the hearing.

This appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s and supplemental reporter’s record complying with this Order are filed with this
Court.

It is so ORDERED.

Judge’s signature: /s/ Laura C. Higley
 Acting individually Acting for the Panel

Date: August 10, 2018