NO. 07-11-00339-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A FEBRUARY 1, 2012
IN THE INTEREST OF J.M., A CHILD
FROM THE COUNTY COURT AT LAW NO 1 OF RANDALL COUNTY; NO. 8816-L-1; HONORABLE JAMES ANDERSON, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ. OPINION The opinion and judgment of January 30, 2012 have been withdrawn and this opinion is issued in its place. Appellant, Melissa K. (Me lissa), appeals the judgment of the trial court terminating her parental rights to the child, J. M. For the reasons we state below, we reverse the judgment of the tr ial court and remand the matter to the trial court for further proceedings. Factual and Procedural Background On January 11, 2010, the State of Texas through the Te xas Department of Family and Protective Services (Department) filed an original petition for protection,2 conservatorship, and to terminate the parental rights of Melissa to both V.K. and J. M. 1 That same day, pursuant to an Order for Prot ection, J.M. was picked up and placed in the care of the Department. In the initial petition, the Department requested that: 19.1 Indigent Parent If a parent responds in opposition to this suit affecting their parent-child relationship and appears without an atto rney, the Department requests that the Court determine whether the parent is indigent. If the Court determines that the parent is indigen t, the appointment of an attorney ad litem to represent the interests of that parent is required by § 107.013, Texas Family Code. The record reflects that on January 25, 2010, the trial court held an adversary hearing, in which Meli ssa agreed to the terms of the order which provided that the Department would be named the temporary m anaging conservator of J.M. and Melissa would be appointed tem porary possessory conservator. Because Melissa agreed to the temporary orders the trial c ourt also entered an order de ferring a finding regarding the appointment of an attorney ad litem for Melissa. Melissa had been arrested on January 5, 2 010, and according to the judgment in the criminal case, which was made a part of th is record, stayed in jail until February 24, 2010. The judgment adjudicating Me lissa guilty reflects that she was incarcerated again on March 9, 2011, and remained in jail until May 2, 2011, when t he judgment reflects she was released until her adjudicati on hearing on May 25, 2011, when she was

1 Melissa subsequently agreed that the De partment should be named managing conservator of V.K. while she would be named po ssessory conservator. V.K.’s status is not part of this appeal.3 adjudicated guilty and sentenced to serve six years confinement in the Institutional Division of the Texas Department of Criminal Justice. Beginning with the Initia l Child’s Service Plan filed on March 1, 2010, and continuing throughout most of t he period prior to the final h earing, reunification was the stated goal of the Depar tment’s reports to the trial court. Melissa participated in the review conferences held until October 4, 2010. Thereafter, Melissa did not participate in any further review conferences or hearings concerning J.M. until the final hearing on June 14, 2011, on the Department’s pet ition seeking termination.

At the time of the final hearing, Melissa was in the Randall County Detention facility pending transfer to the ID-TDCJ to se rve her six-year sentence. The record reflects that after the case was called for tr ial, the trial court inquired of Melissa, “And Melissa [ ], are you ready?” Melissa answered, “Yes.” After verifying that Melissa agreed to the Department being named as managing conservato r of her daughter, V.K., the trial court further inquired, “And so the issue before the Court during the trial is in regards to your son, [J.M.]. Is that correct ?” Melissa then answered, “Yes.” No further inquiries of Melissa were made by th e court. During the presentation of the Department’s case, exhibit numbered “Petit ioner’s Exhibit 65” was introduced into evidence. “Petitioner’s Exhibit 65” was the Judgment Adjudicating Guilt against Melissa. Attached to that judgment, and referr ed to on the face of the judgment, was a bill of costs from the District Clerk of Randall County. One of the it ems listed on the bill of costs was attorney’s fees of $1,600. From this entry, the logical deduction is that4 Melissa was found to be indigent for purposes of the criminal prosec ution, shortly before the termination hearing. During the termination trial, Melissa participated to the extent of trying to object to some of the 64 photographs that were in troduced and in cross-ex amination of the witnesses for the Department who were test ifying against her parental interest. However, most of these efforts were met wit h objections that were sustained. At the conclusion of the trial, t he court terminated Melissa’s par ental rights to J.M. Following the judgment of termi nation of Melissa’s parental rights to J.M., the trial court appointed an attorney ad litem to repr esent Melissa on appeal. Melissa’s appeal brings forth two issues. First, Melissa argu es that the trial court committed reversible error in terminating her parental rights wit hout providing appointed trial counsel. Second, Melissa argues that t he trial court erred when it fail ed to advise her of her right to a trial by jury. We reverse. Appointment of Attorney Ad Litem

The issue before the Court in this appeal is does a tria l court err in failing to appoint an attorney ad litem to represent a parent when t he parent at issue has made no formal request for appointment of an attor ney. The Department opines that without such a request there is no duty to appoint an attorney ad litem. Fu rther, the Department contends that the failure of Melissa to notif y the trial court she was indigent by the presentation of any type of affidavit of in digency would support the action of the trial court in not appointing an attorney ad litem. Melissa contends that failure to make any5 inquiry about whether Melissa de sired an attorney ad litem wa s error of a constitutional magnitude that requires the C ourt to reverse and remand the case for another trial. Initially, we observe that courts have held that the ri ghts that inure in the parentchild relationship are of a constitutional dimension. See Stanley v. Illinois , 405 U.S. 645, 658, 31 L.Ed 2d 551. 92 S.Ct. 108 (1972); In re G.M. , 596 S.W.2d 846, 846 (Tex. 1980). Texas has recognized t hat among the rights belonging to a parent involved in a termination proceeding is the ri ght to representation. See T EX

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. C ODE A NN . § 107.013(a) (West Supp. 2011). 2 Section 107.013(a) is as follows:

MANDATORY APPOINTMENT OF A TTORNEY AD LITEM FOR PARENT In a suit filed by a governmental ent ity in which termination of the parentchild relationship is requested, the c ourt shall appoint an attorney ad litem to represent the interests of: An indi gent parent of the child who responds in opposition to t he termination. The Department contends that since the re cord is void of any request for an attorney, the trial court did not err by failing to appoint an attorney. This interpretation means that, even had Melissa f iled a written answer to the suit for termination of her rights to J.M., the trial court would not have had a duty to inquire about her status as an indigent. To support this proposition, the D epartment cites the Court to Ybarra v. Tex. Dep’t of Human Servs. , 869 S.W.2d 574, 580 (Tex.App.—Cor pus Christi 1993, no writ). According to the Department, Ybarra stands for the proposition that failure to appoint counsel would not be error if the parent failed to make a request for such appointment

2 Further reference to the Texas Fam ily Code Ann. will be by reference to “section ___,” or “§ ___.”6 of counsel. The actual quot ation from the Cour t of Appeals is a bit different. The Corpus Christi court actually said, after a general statement about the requirement to appoint counsel, “However, the trial court did not err in failing to appoint counsel under these circumstances: Ybarra did not request appointed counsel and was represented by retained counsel at trial. ” Id . at 580 (emphasis added). In the case before the Court, Melissa was not represented by retained counsel at trial. The Department then cites the Court to Odoms v. Batts , 791 S.W.2d 677, 678 (Tex.A pp.—San Antonio 1999, no writ), for the proposition that it is error to deny appointment of counsel when the parent filed an answer and alerted the court that he was an indigent. Likewise, the Department cites the ca se of In re T.C.B. for the same proposition. See No. 08-02- 00515-CV, 2003 Tex. App. LEXIS 6792, at *4-*5, (Tex.App. —El Paso Aug. 7, 2003, no pet.) (not designated for public ation). In In re T.C.B. the father had filed an answer challenging the termination an d had requested the a ppointment of an attorney. From these citations, it is clear that when a par ent files an answer contesting the termination and requests appointment of co unsel, the trial court must, at a minimum, conduct an inquiry into whether the parent is indigent and, if the cour t finds that the parent is indigent, must appoint counsel. However, none of the cases directly address the question before this Court. What is the duty of the trial court w hen the parent appears in person to contest the termination but does not affirmatively r equest appointment of counsel? Does the failure to file a written answer mean that th e parent is not responding in opposition to the termination? A review of the record in this case provides some of the answer. Initially, the petition filed by the Departm ent was requesting termination of the parental7 rights of Melissa to both V.K. and J.M.; how ever, at the latter stages of the proceeding the Department sought permanent managing c onservatorship of V.K. with Melissa having the status of possessory conservato rship with limited possession and access to the child. On the day of the final hearing re garding J.M., the trial court entered into the following discussion with Melissa about V.K.: The Court: It is my understanding, [Me lissa], and please correct me if I’m wrong, that you are in agreement with your daughter - - with the Department being named managing conser vator of your daughter, and you possessory conservator. Melissa: Yes. The Court: And that she remain s in care. Is that correct? Melissa: Yes. The Court: Okay. And so the issue bef ore the Court during the trial is in regards to your son, [J .M.]. Is that correct? Melissa: Yes. From this record, it is apparent to the Court that Melissa was respo nding in opposition to the termination. See § 107.013(a). If the Department’s position is that she did not appear in opposition to the term ination, that position finds no support in the record. The Department further contends that Melissa answered ready for trial when asked by the trial court if she was ready to proceed. That announcement of ready, coupled with no affirmative request for a ppointment of an attorney would mean, according to the Department, that the trial court committed no error in failing to appoint her an attorney ad litem. Such a contenti on is an effort to place an additional requirement on section 107.013( a), that being that when a parent appears in opposition8 to a termination and requests an attorney. However, such a requirement is not present in the statute. See § 107.013(a). Melissa agreed to the naming of the Department as permanent managing conservator of V.K. and further agreed with the trial court that the only issue before the court wa s the status of J.M. There appear to be no magic words that are required to be “in opposition” to a request for termination. See In re T.R.R. , 986 S.W. 2d 31, 37 (Tex.App.—Corpus Christi 1998, no pet.) (concluding that parent’s statement “I want my rights” was sufficient to trigger a required inquiry into indigency status.). The position of the Department is further undermined by the record in this matter. The record affirmatively represents that Melissa was brought fr om the jail to the courthouse for the hearing. The record al so shows that Melissa had been adjudicated guilty and sentenced to six years confinement in the ID-T DCJ. “Petitioner’s Exhibit 65”, an exhibit introduced by the Depa rtment, contained the bill of costs from the criminal prosecution which reflected Melissa had an appointed attorney. Testimony revealed that at the time the children were placed in the custody of the Department under an emergency order Melissa was re ceiving benefits from the St ate in the form of a Lone Star Card for food but t hat the card was depleted. Additionally, the original petition filed by the Departm ent contained a request that the trial court inquire about the indigency of any parent who appeared in opposition to termination without an attorney, thus applying to the exact scenario we find in this record.9 Finally, the trial court was aware of this issue. This can be ascertained by a review of the trial court’s order following the initial ad versary hearing on January 25, 2010. In paragraph numbered 4 of that order, at 4.1, the court stated: The Court defers its finding regarding an attorney ad litem for [MELISSA], because [MELISSA] has not appeared in opposition to this suit or has not established indigency. To place this paragraph in context, Melissa agr eed to the order at that time and signified her agreement by signing the order. That presents a far different dynamic than that reflected above at the initial hearing. In the final hearing, Melissa appeared in opposition to the termination of her parental rights to J.M. We see her position in opposition from both t he lack of a voluntary relinquishment document and Melissa’s efforts on the day of the hearing. In the final analysis, t he Department’s position is t hat, because Melissa did not ask for the appointment of an attorney at or before the final hear ing, then we must assume she voluntarily waived any rights to appointed counsel under § 107.013(a). See § 107.013(a). We have reviewed all of the reported cases and find none with a factual pattern that answers the question. T he record is devoid of any indication that Melissa knew of her rights to claim indigenc y and request counsel. However, in drawing an analogy to criminal trials, we know that a criminal defendant wh o is otherwise entitled to appointed counsel can waive his rights to counsel. See T EX

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. art. 1.051(g) (West Supp. 2011). However, such waiver must be voluntarily and intelligently made with know ledge of the dangers and disadvantages of proceeding to trial without counsel. Id

.10 In consideration of the recognized consti tutional dimensions of the parent-child relationship, we see no reason why the tr ial court should not make an inquiry into whether Melissa desired to proceed without benefit of counsel. See Stanley , 405 U.S. at 658; In re G.M. , 596 S.W.2d at 846. Accordingly, we sustain Melissa’s first issue and find that the trial court committed reversib le error by proceedi ng without appointing an attorney to represent Melissa. Having sustained Melissa’s first issue, we will not address the second issue.

Conclusion Having sustained Melissa’s first issue, we reverse and remand this matter to the trial court for a new trial.

Mackey K. Hancock Justice