Fuentes, Roland v. Fuentes, Elizabeth Mendoza ( 2000 )

NUMBER 13-99-593-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ROLAND FUENTES

, Appellant,

v.

ELIZABETH MENDOZA FUENTES, Appellee.

___________________________________________________________________

On appeal from the 138th District Court of Cameron County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez and Rodriguez

Opinion by Justice Chavez

On May 13, 1999 Elizabeth Mendoza Fuentes was granted a divorce from appellant Roland Fuentes. In the same proceeding appellant's parental rights to his two daughters were terminated and appellant's parents' visitation rights (as grandparents) to his two daughters were also terminated. Neither the grandparents nor their attorney appeared at the trial, and they are not parties to this appeal. Roland Fuentes is currently incarcerated for the offense of rape, and was not present at the hearing because he was incarcerated for the rape offense at that time. By three points of error in a pro se appeal Appellant claims that he was not appointed an attorney ad litem and did not receive proper notice of the May 13th hearing. We reverse the trial court's decision regarding the termination of Rolando Fuentes's parental rights, and remand this issue to the trial court for a new trial.

In his first point of error appellant argues that his due process rights under the Texas and United States Constitutions were violated when the trial court did not appoint an attorney ad litem to represent him in a parent/child termination case. "In a suit 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 of the child who responds in opposition to the termination[.]" Tex. Fam. Code Ann. § 107.013 (a)(1) (Vernon Supp. 2000). Appellant claims that although he provided the court with proof of indigence and that he responded in opposition to the termination, he was denied representation.

On December 28, 1998, Elizabeth Mendoza Fuentes filed a petition for divorce and the termination of appellant's parental rights. On December 30, 1998, appellant was served. On January 11, 1999, appellant filed an affidavit that explained that he was incarcerated, but wished to attend the parental termination hearing. The rules of appellate procedure instruct that:

If a contest is filed, the party who filed the affidavit of indigence must prove the affidavit's allegations. If the indigent party is incarcerated at the time the hearing on a contest is held, the affidavit must be considered as evidence and is sufficient to meet the indigent party's burden to present evidence without the indigent party's attending the hearing.

Tex. R. App. P. 20.1(g). Appellant's January 11th affidavit gave the trial court notice of his indigence because it states that he is incarcerated.

Additionally, the trial court had constructive notice of appellant's incarceration. In appellant's ex-wife's petition for divorce and for termination of his parental rights, the grounds she pleaded included appellant's imprisonment. On February 4, 1999, the trial judge signed a temporary order granting appellant's ex-wife sole managing conservatorship based on her motion for that purpose, also dated January 11, 1999. The order states, "Respondent is currently incarcerated for engaging in criminal conduct that results in his imprisonment; therefore is unable to have access and/or possession of the children." At trial on May 13, 1999, appellant's ex-wife stated that he was incarcerated, and the court itself stated, "The order I'm concerned with at this point -- and I can see why -- of course, nobody has answered, except the father has answered, and he is denying everything, and he is locked up in prison."

The trial court's constructive and actual notice of appellant's incarceration was prima facie evidence of indigence. Therefore, the trial court erred when it did not appoint appellant an attorney ad litem as required by the Texas Family Code. Tex. Fam. Code Ann. § 107.013 (a)(1) (Vernon Supp. 2000). We need not look at the remaining arguments. Tex. R. App. P. 47.1 (West 2000). The proper remedy for the failure to appoint a guardian ad litem to a defendant who is incarcerated is a new trial. Odoms v. Batts, 791 S.W.2d 677, 680 (Tex. App.--San Antonio 1990, no writ). The trial court's parental termination ruling is reversed and remanded for a new trial consistent with this opinion.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 29^th day of June, 2000.