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.
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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
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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
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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
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