in the Interest of A.A.L.A, F.K.A, and C.M.A., Children ( 2015 )

Affirmed and Memorandum Opinion filed September 15, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00265-CV
IN THE INTEREST OF A.A.L.A, F.K.A, AND C.M.A., CHILDREN
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2011-25411
MEMORANDUM OPINION
Appellant, J.A., appeals the trial court’s final decree terminating his parental
rights with respect to Anna, Freddie, and Christopher (collectively “the children”).1
The children’s mother (“Mother”), whose parental rights were also terminated,
does not appeal. Appellant raises five issues concerning the legal and factual
sufficiency of the evidence to support certain findings by the trial court and the
trial court’s not appointing counsel for him immediately upon his request. We
affirm.
1
We use fictitious names to refer to the children. See Tex. R. App. P. 9.8(b)(2).
I. BACKGROUND
On June 20, 2013, the Department of Family and Protective Services (“the
Department”) received a report alleging neglectful supervision of the children. The
children had been brought to a police station by a friend of Mother. Appellant and
Mother were both incarcerated at the time—appellant in the Institutional Division
of the Texas Department of Criminal Justice and Mother in a county jail. Appellant
had been in prison since 2009.
According to the friend, Mother and the children had been living with him
for a few months after they were evicted from their apartment. The friend said
Mother had stolen his truck, money, and phone and left the children with him.
When she had not returned after more than a week, the friend reported his truck
stolen, and Mother was arrested.
The two older children, Anna (age 8) and Freddie (almost age 7), denied any
abuse by Mother but said she had left them with the friend, and they had no food
while she was gone. However, at trial, the Department’s caseworker testified that
Freddie reported being hit. Christopher (age 4) did not make any disclosures of
abuse or neglect. All three children appeared healthy but were dirty.
The Department interviewed Mother in jail. According to the interviewer,
Mother was honest about her drug use and said the children would be better off
without her. The Department took possession of the children on June 23, 2013. The
trial court appointed the Department temporary sole managing conservator of the
children the next day.
Trial began as scheduled on December 17, 2014. The Department
announced ready and called its caseworker, LeeShawn Lewis, to the stand. At the
request of appellant’s lawyer, the trial was then recessed until January so that
2
appellant, who reportedly had been paroled on December 15, 2014, could attend.
Trial resumed on January 28, 2015. Appellant was present and represented by
counsel. Although Mother had been served, she did not answer or appear at trial.
Lewis, appellant, and appellant’s wife testified. At the end of trial, the associate
judge presiding stated on the record that she found (1) both parents committed acts
establishing the predicate termination grounds set out in subsections D, E, and M
of section 161.001(1) of the Texas Family Code, and (2) termination is in each of
the children’s best interest. On March 2, 2015, the district judge signed a decree
terminating both Mother’s and appellant’s parental rights with respect to the
children and appointing the Department sole managing conservator of the children.
The children were to remain in their placement with a relative, with whom they
had been living since the Department was appointed temporary managing
conservator in June 2013. Appellant timely appealed.
II. ISSUES ON APPEAL
In his first issue, appellant contends the trial court abused its discretion in
delaying appointment of counsel for him. In his second issue, appellant challenges
the legal and factual sufficiency of the evidence to support the trial court’s finding
that termination is in the best interest of the children. Although appellant does not
contest the trial court’s finding under subsection M and acknowledges termination
may be predicated on that subsection alone, he urges us in his third, fourth, and
fifth issues to review the sufficiency of the evidence supporting the trial court’s
findings on subsections D and E under the collateral consequences doctrine.
III. BURDEN OF PROOF AND STANDARDS OF REVIEW
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex.
1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014,
3
pet. denied). Although parental rights are of constitutional magnitude, they are not
absolute. The child’s emotional and physical interests must not be sacrificed
merely to preserve the parent’s rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code Ann. § 161.001 (West 2014); In re J.F.C., 96 S.W.3d 256, 265–66
(Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” Tex. Fam. Code Ann.
§ 101.007; accord In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof
results in a heightened standard of review. In re S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act described in section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Tex.
Fam. Code Ann. § 161.001. Only one predicate finding under section 161.001(1) is
necessary to support a decree of termination when there is also a finding that
termination is in the child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex.
2003).
In reviewing the legal sufficiency of the evidence in a termination case, we
must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009); In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25. We assume the
fact finder resolved disputed facts in favor of its finding if a reasonable fact finder
could do so, and we disregard all evidence a reasonable fact finder could have
disbelieved. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
4
In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence including disputed or conflicting evidence. See
In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” In re J.F.C., 96
S.W.3d at 266. We give due deference to the fact finder’s findings, and we cannot
substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when
assessing the credibility and demeanor of witnesses. Id. at 109. We are not to
“second-guess the trial court’s resolution of a factual dispute by relying on
evidence that is either disputed, or that the court could easily have rejected as not
credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
IV. PREDICATE TERMINATION GROUNDS
The trial court predicated termination of appellant’s parental rights on
subsections D, E, and M of section 161.001(1) of the Texas Family Code.
A. Previous Termination (Subsection M)
Termination under section 161.001(1)(M) requires a finding that the parent
“had his or her parent-child relationship terminated with respect to another child
based on a finding that the parent’s conduct was in violation of Paragraph (D) or
(E) or substantially equivalent provisions of the law of another state.” Tex. Fam.
Code Ann. § 161.001(1)(M).
On March 9, 2004, appellant’s and Mother’s parental rights were terminated
with respect to an older child based on section 161.001(1)(E) of the Texas Family
Code. A copy of the 2004 termination decree was admitted into evidence and is
5
included in the appellate record. Appellant did not contest the subsection M finding
in the trial court and does not on appeal. Accordingly, the first requirement for
termination—a predicate statutory ground—is satisfied. See Tex. Fam. Code Ann.
§ 161.001(1).
B. Endangerment (Subsections D and E)
1. Collateral Consequences Doctrine
Having determined the evidence is sufficient to support the trial court’s
finding on section 161.001(1)(M), we need not consider whether the evidence
supports the findings on section 161.001(1)(D) or section 161.001(1)(E). See In re
A.V., 113 S.W.3d at 362 (only one predicate finding under section 161.001(1) is
necessary to support termination when there is also a finding that termination is in
the child’s best interest). Subsections D and E both address child endangerment. Id.
§ 161.001(1)(D) (“knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child”); id. § 161.001(1)(E) (“engaged in conduct or knowingly placed the
child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child”).
Appellant recognizes this 2015 decree may be affirmed on the section
161.001(1)(M) finding alone, provided the trial court’s finding that termination is
in the children’s best interest is supported by legally and factually sufficient
evidence. However, he urges us to consider the legal and factual sufficiency of the
evidence to support the endangerment findings under subsections D and E due to
the negative collateral consequences those findings may carry in the future—
specifically, that those endangerment findings may support termination of
appellant’s parental rights under section 161.001(1)(M) in a future termination
proceeding. Appellant argues that he is entitled, as a matter of due process, to
6
judicial review of the endangerment findings.2 He contends this appeal is the only
opportunity he has for such review, because the termination decree may not be
attacked directly or collaterally more than six months after it has become final.
Tex. Fam. Code Ann. § 161.211; see L.C. v. Tex. Dep’t of Family & Protective
Servs., 03–14–00793–CV, 2015 WL 267807, *6–7 & n.47 (Tex. App.—Austin
June 8, 2015, pet. filed) (mem. op.) (per curiam) (concluding that appellant’s
complaints about a 2007 termination amounted to an impermissible collateral
attack on that termination decree).
This court was presented with the collateral consequences argument in a
parental termination case earlier this year. See In re J.J.G., No. 14–15–00094–CV,
2015 WL 3524371 (Tex. App.—Houston [14th Dist.] June 4, 2015, no pet.) (mem.
op.) Termination in J.J.G. was predicated on section 161.001(1)(O) (failure to
comply with the court-ordered family service plan) and section 161.001(1)(E)
(endangerment). The appellant conceded the evidence was sufficient to support the
trial court’s finding on subsection O. However, she argued the court should review
the sufficiency of the evidence to support the trial court’s finding on subsection E,
because that finding could be used as a basis for a future termination of her
parental rights under section 161.001(1)(M). See id. at *4.
This case is distinguishable from J.J.G. because this is the second time
appellant’s parental rights have been terminated on endangerment grounds. His
parental rights were terminated under subsection E as to an older child in 2004. By
contrast, the appellant in J.J.G. had not previously had her parental rights
terminated with respect to another child. If the endangerment finding was not
2
Appellant finds support for his argument in a 2008 opinion from the Waco Court of
Appeals. See In re S.N., 272 S.W.3d 45, 59-61 (Tex. App.—Waco 2008, no pet.). However, in
2013, the Waco court declined to follow that portion of S.N., characterizing it as dicta and
overruling it “to the extent necessary.” In re S.L., 421 S.W.3d 34, 37 n.3 (Tex. App.—Waco
2013, no pet.).
7
removed from the decree in J.J.G., then no decree of termination based on
endangerment would exist. In this case, even if the endangerment findings were
removed from this 2015 decree, the 2004 decree may be used in a future
termination proceeding, just as it was used in this proceeding, as a previous
termination under subsection M.
Appellant points out that the 2004 termination is more than eleven years old
and says that if he is faced with a termination proceeding in the future, he may
wish to argue the 2004 decree is too remote in time to be fairly used as a previous
termination under subsection M. The age alone of a termination does not determine
the propriety of its use in a later proceeding. See Avery v. State, 963 S.W.2d 550,
552–53 (Tex. App.—Houston [1st Dist.] 1997, no writ). Avery instead considered
whether the conditions that existed at the time of the previous termination persisted
to the time of the second termination proceeding. See id. (seventeen-year-old
termination was fairly considered given that appellant had engaged in a pattern of
criminal activity for the past eighteen years).
In this case, the record shows appellant engaged in criminal conduct steadily
from 1997 through 2009. He was imprisoned for the 2009 crime when this
termination proceeding began in 2013. His pattern of criminal activity would
support a finding of endangerment in this case without regard to his 2004
termination. However, assuming appellant does not engage in further criminal
conduct following this 2015 termination, at some point his 1997–2009 criminal
activity may be found to be too distant in time to support a future termination. If
that occurs, then Avery suggests a court might disregard the 2004 termination. If
the 2004 termination is disregarded, then this 2015 termination premised on
findings on endangerment would be sufficient to support a future termination under
section 161.001(1). For that reason, and remembering that involuntary termination
8
of parental rights is a serious matter implicating fundamental constitutional rights,
In re G.M., 596 S.W.2d at 846, we conclude that in this case, where the two
existing terminations are more than a decade apart, the negative collateral
consequences of this 2015 termination on a potential future termination proceeding
warrants our review of the sufficiency of the evidence to support the trial court’s
endangerment findings under subsections D and E. However, that conclusion is
limited to the facts of this case. We do not decide if the collateral consequences
doctrine applies in every case in which parental rights are terminated based on
endangerment grounds and another subsection of section 161.001(1). We also do
not address the broader question of whether the collateral consequences doctrine
has a place in parental termination cases at all, given that the existence of a future
termination proceeding will depend on the parent’s conduct, which is within the
parent’s control, and the concept of collateral consequences generally refers to
matters beyond a person’s control.
2. Sufficiency of the evidence
We now review the sufficiency of the evidence to support the trial court’s
findings under subsections D and E. Tex. Fam. Code Ann. § 161.001(1)(D), (E).
Both subsections D and E use the term “endanger.” “To endanger” means to
expose a child to loss or injury or to jeopardize a child’s emotional or physical
health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); Walker v. Tex. Dep’t of
Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied).
Endangerment under section 161.001(1)(D) may be established by evidence
about the child’s environment. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied). “Environment” refers to the acceptability of living
conditions, as well as a parent’s conduct in the home. In re W.S., 899 S.W.2d 772,
9
776 (Tex. App.—Fort Worth 1995, no writ). A child is endangered when the
environment creates a potential for danger that the parent is aware of but
consciously disregards. See In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort
Worth 2009, no pet.); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston
[14th Dist.] 2005, no pet.). Subsection D is not a basis for terminating parental
rights if the parent was unaware of the endangering environment. In re Z.C.J.L.,
14–13–00115–CV, 2013 WL 3477569, at *12 (Tex. App.—Houston [14th Dist.]
July 9, 2013, no pet.) (mem. op.); see also In re T.H., 131 S.W.3d 598, 603 (Tex.
App.—Texarkana 2004, pet. denied) (“[E]ven if clear and convincing evidence
supported the trial court’s finding that the environment posed a danger to T.H.’s
well-being, the Department failed to show that [the father] knowingly placed or
allowed T.H. to remain in such an environment.”). However, a parent need not
know for certain that the child is in an endangering environment; awareness of
such a potential is sufficient. Id.; see also In re C.L.C., 119 S.W.3d 382, 392 (Tex.
App.—Tyler 2003, no pet.) (“It is sufficient that the parent was aware of the
potential for danger to the child in such environment and disregarded that risk.”).
Under section 161.001(1)(E), the evidence must show the endangerment was
the result of the parent’s conduct, including acts, omissions, or failures to act. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Termination
under subsection E must be based on more than a single act or omission; the statute
requires a voluntary, deliberate, and conscious course of conduct by the parent. Id.
A court properly may consider actions and inactions occurring both before and
after a child’s birth to establish a “course of conduct.” In re S.M., 389 S.W.3d 483,
491–92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves
physical endangerment, the statute does not require that conduct be directed at a
child or that the child actually suffers injury; rather, the specific danger to the
10
child’s well-being may be inferred from parents’ misconduct alone. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d
732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that
subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—
Fort Worth 2013), aff’d, 437 S.W.3d 498 (Tex. 2014).
In evaluating endangerment under subsection D, we consider the child’s
environment before the Department obtained custody of the child. See In re J.R.,
171 S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Under
subsection E, however, courts may consider conduct both before and after the
Department removed the child from the home. See Avery, 963 S.W.2d at 553
(considering persistence of endangering conduct up to time of trial); In re A.R.M.,
No. 14–13–01039–CV, 2014 WL 1390285, at *7 (Tex. App.—Houston [14th
Dist.] Apr. 8, 2014, no pet.) (mem. op.) (considering pattern of criminal behavior
and imprisonment through trial).
Because the inquiry under both subsections D and E includes the conduct of
the parent, evidence of criminal conduct, convictions, or imprisonment is relevant
to a review of whether a parent engaged in a course of conduct that endangered the
well-being of the child. A.S. v. Tex. Dep’t of Family & Protective Servs., 394
S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).
Appellant has a lengthy criminal history, beginning before and continuing
after the children were born. When the Department began its investigation,
Appellant had been convicted of at least five felonies, three of which were drug
related, and three misdemeanors since 1997. Anna, the oldest child in this case,
was born in 2005. Appellant had at least an eight-year criminal history at that
point. He also committed crimes after Anna was born, and he continued to do so
11
after Freddie was born in 2006. Appellant committed the last crime reflected in the
record—the one for which he was imprisoned when the investigation began—in
February 2009, while Mother was pregnant with Christopher.
It is undisputed that appellant knew Mother used drugs when the children
lived with her. He testified that he and Mother broke up around October 2008. The
children lived with Mother after she and appellant broke up. For the period
between the break-up and appellant’s imprisonment in 2009, appellant knew the
children were living with Mother and knew Mother was using drugs, including
“pills” and perhaps cocaine.
Because appellant had a long and continuing history of criminal behavior,
which endangered the children, and he knew Mother was endangering the children
by using drugs while they were living with her, we conclude the evidence is legally
and factually sufficient to support the trial court’s findings under subsections D
and E of section 161.001(1) of the Texas Family Code. We overrule appellant’s
fourth and fifth issues.
V. BEST INTEREST OF THE CHILD
Termination must also be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(2). We review the entire record in deciding a challenge to the court’s
best-interest finding. See In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam). Prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest. See Tex. Fam. Code
Ann. § 263.307(a).
12
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: the desires of the
child; the physical and emotional needs of the child now and in the future; the
emotional and physical danger to the child now and in the future; the parental
abilities of the persons seeking custody; the programs available to assist those
persons seeking custody in promoting the best interest of the child; the plans for
the child by the individuals or agency seeking custody; the stability of the home or
proposed placement; acts or omissions of the parent which may indicate the
existing parent-child relationship is not appropriate; and any excuse for the
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
As noted, this list of factors is not exhaustive, and evidence is not required on all
the factors to support a finding that termination is in the child’s best interest. In re
D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
In addition, the Texas Family Code sets out thirteen factors to be considered
in evaluating a parent’s willingness and ability to provide the child with a safe
environment. See Tex. Fam. Code Ann. § 263.307(b). Factors applicable to this
case include: the child’s age and physical and mental vulnerabilities; whether there
is a history of substance abuse by the child’s family or others who have access to
the child’s home; the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision; the willingness and ability of the child’s
family to effect positive environmental and personal changes within a reasonable
period of time; and whether the child’s family demonstrates adequate parenting
skills, including providing the child with minimally adequate health and nutritional
care, a safe physical home environment, and an understanding of the child’s needs
13
and capabilities. See id. § 263.307(b)(1), (8), (10), (11), (12); In re R.R., 209
S.W.3d at 116.
The children. At the time of trial, Anna was almost ten, Freddie was nine,
and Christopher was five. The record does not reflect any special physical or
emotional needs of the children. None of the children testified at trial. No evidence
was presented about the desires of any of the children.
Appellant. The Department created a family service plan for appellant. He
was not required to complete it until after he was released from prison. Lewis
testified appellant had been in contact with her and expressed his desire to satisfy
the service plan’s requirements now that he was out of prison. He had started
working to complete the plan after his parole in December, including getting a job.
He said he was willing to go to Alcoholics Anonymous meetings. Lewis
acknowledged he was working to change his life.
Appellant said he was prepared to complete the services required by the
Department. He testified that he used to “pick up [his] kids and take them wherever
they needed to go, buy them clothes, whatever.” He also testified: “Really, I love
my kids. I want to do whatever I can to get them back. I know I’m working right
now. I got a bad background. Everybody messes up. I want to do whatever it takes
to get my kids back. I love them that much, you know what I’m saying?”
However, appellant also testified that he did not participate at all in the
2003–04 termination proceeding regarding his older child. He said Mother sent
him the paperwork and told him, “It’s going to be all right, just throw the papers
out,” which is what he did. He did not read any of the papers he was sent
concerning that termination proceeding. A reasonable fact finder could have taken
appellant’s lack of participation in his earlier termination proceeding into account
in assessing appellant’s willingness and ability to parent his children.
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As discussed above, appellant knew Mother used drugs when the children
lived with her. For a period of at least several months, appellant knew the children
were living with Mother and knew Mother was using drugs.
Danger to the children. Also as discussed above, appellant’s extensive
criminal history endangered the children. The trial court could have reasonably
inferred that appellant’s repeated criminal acts would continue in the future.
Stability of the home. Lewis testified that appellant’s living condition was
too unstable for the Department to recommend placing the children with him. He
had been released on parole to his sister’s house, but Lewis said that house was not
suitable for the children. First, appellant’s sister had a criminal history. Second, the
children had been living with his sister at one point, but she had returned them to
their maternal grandmother. Finally, the two-bedroom house was not big enough to
accommodate the children, appellant, his sister, and his sister’s paramour.
By contrast, the children had been placed with a maternal relative in June
2013, and they lived with that relative through trial. Lewis testified the children
were doing well in that home. The Department’s goal was for the children to live
with that relative permanently. The relative reportedly wanted to adopt the
children.
While there is some evidence appellant had the desire and ability to parent
the children, there is also evidence that appellant had an extensive criminal history
and could not provide the children a stable home. We hold the evidence is legally
and factually sufficient to support the trial court’s finding that termination is in the
children’s best interest. We overrule appellant’s second issue.
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VI. APPOINTMENT OF COUNSEL
In his first issue, appellant complains the trial court abused its discretion by
not appointing a lawyer for him until ten months after he requested one. Appellant
mailed the district clerk his original answer and a motion, both dated July 17, 2013,
and filed on July 23, 2013. He requested the trial court appoint an attorney for him
in his answer. His motion asked the trial court to issue a bench warrant to have him
brought from prison to the court so that he could participate in the case, or,
alternatively, to grant a continuance. The trial court appointed counsel for appellant
on May 1, 2014. Appellant contends the months he spent without an attorney
“robbed him of 10 months of possible work towards services and dialogue with the
Department about what services were recommended.”
Appointment of an attorney for indigent parents in termination cases is
mandated by statute:
(a) In a suit by a governmental entity under Subtitle E in which
termination of the parent-child relationship or the appointment of a
conservator for a child is requested, the court shall appoint an attorney
ad litem to represent the interests of: (1) an indigent parent of the
child who responds in opposition to the termination or appointment . .
..
Tex. Fam. Code Ann. § 107.013(a)(1) (boldface added).
The word “shall” in a statute imposes a duty, “unless the context in which
the word or phrase appears necessarily requires a different construction or unless a
different construction is expressly provided by statute.” Tex. Gov’t Code Ann. §
311.016(1) (West 2013). Neither the language nor the context of section 107.013
suggests its use of “shall” requires a different construction. Therefore, a trial court
has a duty to appoint counsel for an indigent parent. As a result, a trial court’s
complete failure to appoint counsel to represent an indigent parent is reversible
16
error. See, e.g., In re C.D.S., 172 S.W.3d 179, 185–86 (Tex. App.—Fort Worth
2005, no pet.); Odoms v. Batts, 791 S.W.2d 677, 681 (Tex. App.—San Antonio
1990, no writ).
Unlike section 107.012, which requires immediate appointment of an
attorney ad litem for a child, the version of section 107.013 in effect during the
trial court proceedings contained no specific timetable for appointing an attorney
ad litem to represent the parent.3 See In re S.R., 452 S.W.3d at 371; In re M.J.M.L.,
31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet. denied).
In S.R., the appellant signed a “Request for Appointment of Counsel” and
completed a questionnaire about his financial resources on the day of the adversary
hearing, though the record did not reflect if he made the request before or after the
hearing. In re S.R., 452 S.W.3d at 371. The appellant argued the trial court
reversibly erred by failing to appoint an attorney for him until after the adversary
hearing. See id. However, the appellant did not request an attorney until the day of
the hearing. We “[a]ssum[ed] that [the father’s] documents were sufficient to
trigger the process for mandatory appointment of an attorney ad litem” and
concluded the trial court did not err in not appointing counsel before the adversary
hearing. See id. at 372. We also noted that because trial did not begin for almost a
year and a half after the appellant’s lawyer was appointed, any error was harmless.
3
Section 107.013 was amended effective September 1, 2015. One of the changes was the
addition of subsection (a-1), which provides:
(a-1) In a suit described by Subsection (a), if a parent is not represented by an attorney
at the parent’s first appearance in court, the court shall inform the parent of:
(1) the right to be represented by an attorney; and
(2) if the parent is indigent and appears in opposition to the suit, the right to
an attorney ad litem appointed by the court.
Tex. Fam. Code Ann. § 107.013 (West Supp. 2015). The amended version of section 107.013
thus imposes a time by which the trial court must inform the parent of his right to counsel,
although the statute still does not impose a deadline for the trial court to appoint counsel.
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See id. at 373 (“[T]he record does not reflect that any error in the timing of
counsel’s appointment probably led to the rendition of an improper judgment.”).
In this case, appellant requested a lawyer, but the trial court did not appoint
one for almost ten months. Given our assumption in S.R. that the request for a
lawyer triggers the trial court’s duty to appoint one, we likewise assume in this
case that the trial court erred in not appointing counsel for nearly ten months.
However, we conclude that the trial court’s error is not reversible, because it
probably did not lead to the rendition of an improper judgment or prevent appellant
from presenting his case on appeal. See Tex. R. App. P. 44.1(a) (stating standard
for harmless error in civil cases); see In re M.V.G., 440 S.W.3d 54, 65–66 (Tex.
App.—Waco 2010, no pet.) (applying harmless error standard where counsel for
father in parental termination case “actively participated in virtually the entire
trial”).
Appellant’s lawyer had nearly nine months to prepare for trial. He was
appointed on May 1, 2014. Trial was scheduled to begin about four months later.
Based on motions for continuance filed by appellant’s lawyer, trial was ultimately
reset for December 17, 2014. On December 11, appellant’s lawyer filed another
motion for continuance on the basis that appellant was eligible for parole on
December 15, and wanted time to complete the services required by the family
service plan. Trial began as scheduled on December 17, but the trial court
effectively granted appellant the requested continuance by recessing the trial until
January 28, 2015.
The record shows appellant’s lawyer filed an answer, special exceptions, and
three motions for continuance during the nine months he represented appellant
before trial. He attended a permanency hearing and hearings on the motions for
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continuance. Appellant does not contend his lawyer was unprepared for trial or
otherwise rendered ineffective assistance.
Appellate courts have found no reversible error when the trial court
appointed counsel only a few months before trial, but there was no suggestion that
the delay in appointment rendered counsel’s representation inadequate. See, e.g., In
re C.Y.S., No. 04–11–00308–CV, 2011 WL 5971068, *5 (Tex. App.—San Antonio
Nov. 30, 2011, no pet.) (mem. op.) (four months; appellant did not suggest her
lawyer was unprepared or rendered ineffective assistance of counsel); In re J.J.,
No. 13–04–00202–CV, 2006 WL 949952, *3 (Tex. App.—Corpus Christi April
13, 2006, no pet.) (mem. op.) (four and a half months; appellant stated she was
“completely satisfied” with her lawyer’s representation); Manning v. Tex. Dep’t of
Family & Protective Servs., No. 03–04–00451–CV, 2005 WL 1116389, *4 (Tex.
App.—Austin May 12, 2005, pet. denied) (mem. op.) (five months; during that
time, counsel attended hearings, served discovery requests, and filed more than
twelve motions, including a motion for continuance).
Appellant asserts he lost time in which he could have been working to
satisfy the service plan and communicating with the Department about his desire to
parent his children. However, it is undisputed that the Department knew appellant
wanted to complete the service plan and be involved with his children. It is also
undisputed that, with one exception, the Department did not expect him to
complete the service plan while he was in prison. The exception was the
requirement that appellant sign a release, effective immediately, of all information
necessary for the Department to obtain information from all past, present, and
future service providers. The Department did not present appellant with a form of
release to sign. Appellant contends if counsel had been appointed promptly, he
“would have had the opportunity to dialogue with the Department and get a copy
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of the release that he was expected to sign.” However, the Department does not
suggest its investigation was impeded or it was otherwise harmed by not having a
signed release from appellant. Moreover, appellant’s rights were not terminated for
failure to complete the service plan. See Tex. Fam. Code Ann. § 161.001(1)(O)
(predicate ground for termination is “fail[ure] to comply with the provisions of a
[service plan]”).
We conclude the trial court’s delay in appointing a lawyer for appellant
probably did not cause the rendition of an improper judgment or prevent appellant
from presenting his case on appeal. Therefore, any error in the delay is harmless
and not reversible. We overrule appellant’s first issue.
VII. CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Brown, and Wise.
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