in the Interest of N. G., A. v. P. P., J. R., and B. D., Minor Children ( 2002 )

                                   NUMBER 13-00-749-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

IN THE INTEREST OF N.G., A.V., P.P., J.R., AND B.D.,

MINOR CHILDREN

                        On appeal from the 135th District Court

                                  of De Witt County, Texas.

               OPINION ON MOTION FOR REHEARING

         Before Chief Justice Valdez and Justices Hinojosa and Castillo

                                  Opinion by Justice Castillo

We deny Villa=s motion for rehearing, but write in order to comment on Villa=s assertions on rehearing that the record indicates she preserved error for our review, and that alternatively, the question raised before us was one of fundamental error, not requiring an objection.  We write also to clarify certain aspects of our opinion on original submission.

Preservation of Error

In her motion for rehearing, Villa contends she preserved error regarding the timing of the appointment of counsel when Athe issue was raised by trial counsel to the court in an objection to the testimony of Lloyd Halliburton and was ruled upon by the trial court@, or alternatively, that the failure to appoint counsel at the adversary hearing is fundamental error which did not require an objection. 

Villa=s first contention is not supported by the evidence. The part of the record set out by Villa indicates that Halliburton, a licensed professional counselor, was called to testify on behalf of the TDPRS.^[1]  The agency referred Villa to Halliburton, and the two met for approximately 22 sessions. At trial, Villa=s counsel objected to his testimony Aas violative of the patient-counselor privilege.@  After voir-dire examination of the witness, counsel again objected to Halliburton=s release of Aconfidential information@ and stated that the release Villa signed allowing disclosure of such information was signed Aat the time during which Mrs. Villa had no attorney to advise her in regard to the possible consequences of that release and which would have been a violation of her rights.@  She added that she believed Villa Ahad the right to counseling and legal advice at that time@ and Athe release, therefore, would be invalid.@   The court then heard additional arguments from Villa=s counsel that Villa did not knowingly waive her rights to confidentiality because she did not have an attorney at the time she signed the documents.  The trial court ruled, AWell, that=s overruled unless you show me some testimony of some sort.@   

The objection was directed at the testimony of Halliburton. The trial court=s ruling allowed his testimony.  The statements regarding lack of appointed counsel at the time of Villa=s signing the waivers were in support of Villa=s contention that the releases were not knowingly signed. Moreover, even though by its ruling the trial court would revisit the argument upon Atestimony of some sort,@ Villa adduced no evidence that she would not have signed the releases had she had an attorney at the time she signed them.   Even if we were to construe her objection as directed at the failure to appoint counsel at the time she signed the releases or any other time, Villa failed to obtain a ruling on that objection and so would still have waived her right to complain on appeal.   Tex. R. App. P. 33.1(a).

Villa also argues that the failure to appoint counsel at the time of the adversarial hearing, or, more specifically, on the first occasion a parent appears in opposition to a SAPCR which contains a cause of action for termination of parental rights as an option, was fundamental error which did not require an objection to preserve error for review, citing Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).  We disagree.

Fundamental error is a very narrow doctrine and all Abut the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong.@ Marin, 851 S.W.2d at 279.  Marin involved the right to counsel in a criminal case in which it is well established there is a constitutional right to counsel which is Awaivable-only,@ see Marin, 851 S.W.2d at 279 and Saldano v. State, 70 S.W.3d 873, 889(Tex. Crim. App. 2002), and it is to that right that Villa analogizes her claim that the trial court fundamentally erred in not appointing her counsel at the time of the adversarial hearing.  See the extensive discussion of fundamental error in Saldano, 70 S.W.3d 886-91, in which the court notes that, in order for an error to be raised on appeal,  the rules Arequire a timely and specific objection...[except] in two relatively small categories of errors: violations of >rights which are waivable only= and denials of >absolute systemic requirements.=@ Saldano, 70 S.W.3d at 888.^[2]

Considering then, the question of whether, in a termination suit, the failure to appoint counsel to an indigent parent at a particular time is a Awaivable-only@ right that would constitute fundamental error, we note first that there is no constitutional entitlement to appointment of counsel in every parental rights termination hearing.   Lassiter v. Dept. of Social Srvcs. of Durham Co., 452 U.S. 18, 31 (1981).  Much less then can there be a fundamental constitutional right to have an attorney appointed at a particular time.

 In Texas, there is a statutory right to counsel when an indigent parent has appeared to oppose a suit in which termination is requested, Tex. Fam. Code Ann. '107.013 (Vernon Supp. 2002), and thus a complete failure to appoint counsel in such circumstances is error.  In re T.R.R. 986 S.W.2d 31, 37 (Tex. App.BCorpus Christi 1998, no pet.).  Therefore the right to counsel of an indigent parent who appears in opposition to a suit requesting termination might arguably be considered a Awaivable-only@ right.   However, nothing in the Texas family code mandates that the trial court appoint an attorney for an indigent parent at any specific time.  Had the legislature intended that the trial court appoint an attorney at the time of, or within a specific number of days following, an appearance in opposition to a SAPCR containing any plea for termination of parental rights, alternative or not, the legislature could have included the appropriate language in the family code.  It has not done so.  We decline to enlarge the statute by judicially engrafting a time requirement that the legislature chose not to impose.  Villa has not cited us any authority from any court in this state who has chosen to do so and we have found none.  See In re J.R.P., 55 S.W.3d 147, 150-51 (Tex. App.BCorpus Christi 2001, pet. denied)(noting that the statute contains no time frame for appointment of counsel and declining to create one); In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.BSan Antonio 2000, pet. denied). 

As Villa had no constitutional, or even statutory right, to have the appointment of counsel made at the time of the adversary hearing, she cannot claim that the trial court fundamentally erred in failing to appoint counsel at that time.  If Villa wished to complain of error of the timing of the appointment of counsel on appeal, she had the duty to object to the trial court.  Tex. R. App. P. 33.1(a).  Having failed to do so, she waived this complaint.

Due Process Complaints on Rehearing

Villa further complains on rehearing of this Court=s finding that the right to counsel did not attach at the time of the adversary hearing.  Specifically, she argues that if the right to counsel did not attach at that time, despite the previous filing of a petition including a request for termination of parental rights as an alternate claim along with a request for temporary orders pending reunification, this would violate due process because she was not ever notified that the agency was, in fact, seeking termination versus reunification. She argues thatA[e]ither notice of the decision to seek termination is given when the petition is served or notice is never required.@

Appellant never raised any due process argument either to the trial court or this  Court on appeal.  She did not, and does not, challenge the constitutionality of the statute itself.  She has never before complained that she did not receive notice of the decision to seek termination.  She does not cite any actual constitutional authority or language or provide any analysis demonstrating how the statute as written violates any provision of the state or federal constitution.  We find that the point has been inadequately briefed, see Tex. R. App. P. 38.1(h), and was not raised on original submission. We will not therefore consider it on a motion for rehearing.  See Morrison v. Chan, 699 S.W.2d 205, 206-07 (Tex. 1985)(appellate court did not err in refusing to reverse on a ground first raised in a motion for rehearing).

We note also that Villa appears to have read our original opinion to imply that the right to court-appointed counsel did not attach in the present case at the time of the adversarial hearing because TDPRS had not yet indicated whether it intended to pursue the termination claim which listed as an alternate claim in its SAPCR petition at the time of the adversarial hearing.  This was not our holding.  While we did note that the record reflected that TDPRS was pursuing temporary orders, not termination, at the time of the adversarial hearing, and that by law, at the time of the adversarial hearing, the issue of termination was not being determined, our holding on the question of when the court must appoint counsel did not turn on these factors.  Rather, it was predicated on the lack of any language in section 107.013 placing any requirement that counsel be appointed at or prior to the adversary hearing.^[3]  To the extent that any language in our opinion may imply that the right to counsel did not attach because TDPRS was pursuing temporary orders, not termination, at the time of the adversary hearing, we hereby clarify the basis for our holding.

Conclusion

We deny Villa=s motion for rehearing.

ERRLINDA CASTILLO

Justice

Do not publish.

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

Opinion on motion for rehearing delivered and

filed this 6th day of June, 2002.

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^[1]Texas Department of Protective and Regulatory Services.

² Absolute systemic requirements include requirements such as jurisdiction of the person or subject matter or the compliance with the separation of powers section of the state constitution.  Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002).

^[3] Villa=s misinterpretation may have been abetted by the appendage of the word  Amoreover@ between our discussion of the posture of the case and our analysis.