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The opinion and judgment of January 30, 2012 have been withdrawn and this 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. (Melissa), 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 trial 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 Texas Department of 

Family and Protective Services (Department) filed an original petition for protection, 
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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 Protection, 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 attorney, the Department requests 

that the Court determine whether the parent is indigent. If the Court 

determines that the parent is indigent, 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 Melissa agreed to the terms of the order which provided that the 

Department would be named the temporary managing conservator of J.M. and Melissa 

would be appointed temporary possessory conservator. Because Melissa agreed to the 

temporary orders the trial court also entered an order deferring a finding regarding the 

appointment of an attorney ad litem for Melissa. 

 Melissa had been arrested on January 5, 2010, and according to the judgment in 

the criminal case, which was made a part of this record, stayed in jail until February 24, 

2010. The judgment adjudicating Melissa guilty reflects that she was incarcerated again 

on March 9, 2011, and remained in jail until May 2, 2011, when the judgment reflects 

she was released until her adjudication hearing on May 25, 2011, when she was 

 1

Melissa subsequently agreed that the Department should be named managing 

conservator of V.K. while she would be named possessory conservator. V.K.’s status is 

not part of this appeal. 
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adjudicated guilty and sentenced to serve six years confinement in the Institutional 

Division of the Texas Department of Criminal Justice. 

 Beginning with the Initial Child’s Service Plan filed on March 1, 2010, and 

continuing throughout most of the period prior to the final hearing, reunification was the 

stated goal of the Department’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 petition seeking termination. 

 At the time of the final hearing, Melissa was in the Randall County Detention 

facility pending transfer to the ID-TDCJ to serve her six-year sentence. The record 

reflects that after the case was called for trial, 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 conservator 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 the court. During the presentation of the 

Department’s case, exhibit numbered “Petitioner’s Exhibit 65” was introduced into 

evidence. “Petitioner’s Exhibit 65” was the Judgment Adjudicating Guilt against 

Melissa. Attached to that judgment, and referred to on the face of the judgment, was a 

bill of costs from the District Clerk of Randall County. One of the items listed on the bill 

of costs was attorney’s fees of $1,600. From this entry, the logical deduction is that 
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Melissa was found to be indigent for purposes of the criminal prosecution, 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 introduced and in cross-examination of the 

witnesses for the Department who were testifying against her parental interest. 

However, most of these efforts were met with objections that were sustained. At the 

conclusion of the trial, the court terminated Melissa’s parental rights to J.M. 

 Following the judgment of termination of Melissa’s parental rights to J.M., the trial 

court appointed an attorney ad litem to represent Melissa on appeal. Melissa’s appeal 

brings forth two issues. First, Melissa argues that the trial court committed reversible 

error in terminating her parental rights without providing appointed trial counsel. 

Second, Melissa argues that the trial court erred when it failed 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 trial court err in failing to 

appoint an attorney ad litem to represent a parent when the parent at issue has made 

no formal request for appointment of an attorney. The Department opines that without 

such a request there is no duty to appoint an attorney ad litem. Further, the Department 

contends that the failure of Melissa to notify the trial court she was indigent by the 

presentation of any type of affidavit of indigency would support the action of the trial 

court in not appointing an attorney ad litem. Melissa contends that failure to make any 
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inquiry about whether Melissa desired an attorney ad litem was error of a constitutional 

magnitude that requires the Court to reverse and remand the case for another trial. 

 Initially, we observe that courts have held that the rights 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 that among the rights belonging to a parent involved in a 

termination proceeding is the right to representation. See TEX. FAM. CODE ANN. § 

107.013(a) (West Supp. 2011).2

 Section 107.013(a) is as follows: 

MANDATORY APPOINTMENT OF ATTORNEY AD LITEM FOR PARENT 

In a suit filed by a governmental entity in which termination of the parentchild 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. 

The Department contends that since the record 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 filed 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 Department cites the Court to Ybarra v. Tex. 

Dep’t of Human Servs., 869 S.W.2d 574, 580 (Tex.App.—Corpus 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 Family Code Ann. will be by reference to 

“section ___,” or “§ ___.”
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of counsel. The actual quotation from the Court 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.App.—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 case 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 publication). In In re T.C.B. the father had filed an answer 

challenging the termination and had requested the appointment of an attorney. From 

these citations, it is clear that when a parent files an answer contesting the termination 

and requests appointment of counsel, the trial court must, at a minimum, conduct an 

inquiry into whether the parent is indigent and, if the court 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 when the parent appears in person to contest 

the termination but does not affirmatively request appointment of counsel? Does the 

failure to file a written answer mean that the 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 Department was requesting termination of the parental 
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rights of Melissa to both V.K. and J.M.; however, at the latter stages of the proceeding 

the Department sought permanent managing conservatorship of V.K. with Melissa 

having the status of possessory conservatorship with limited possession and access to 

the child. On the day of the final hearing regarding J.M., the trial court entered into the 

following discussion with Melissa about V.K.: 

The Court: It is my understanding, [Melissa], and please correct me if I’m 

wrong, that you are in agreement with your daughter - - with the 

Department being named managing conservator of your daughter, and 

you possessory conservator. 

Melissa: Yes. 

The Court: And that she remains in care. Is that correct? 

Melissa: Yes. 

The Court: Okay. And so the issue before 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 responding in opposition to 

the termination. See § 107.013(a). If the Department’s position is that she did not 

appear in opposition to the termination, 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 appointment 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 contention is an effort to place an additional 

requirement on section 107.013(a), that being that when a parent appears in opposition 
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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 was 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 from the jail to the 

courthouse for the hearing. The record also shows that Melissa had been adjudicated 

guilty and sentenced to six years confinement in the ID-TDCJ. “Petitioner’s Exhibit 65”, 

an exhibit introduced by the Department, 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 receiving benefits from the State in the form of a Lone 

Star Card for food but that the card was depleted. 

 Additionally, the original petition filed by the Department 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. 
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 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 adversary 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 agreed 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 the lack of a voluntary relinquishment document and Melissa’s 

efforts on the day of the hearing. 

 In the final analysis, the Department’s position is that, because Melissa did not 

ask for the appointment of an attorney at or before the final hearing, 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. The record is devoid of any indication that 

Melissa knew of her rights to claim indigency and request counsel. However, in drawing 

an analogy to criminal trials, we know that a criminal defendant who is otherwise entitled 

to appointed counsel can waive his rights to counsel. See TEX. CODE CRIM. PROC. ANN. 

art. 1.051(g) (West Supp. 2011). However, such waiver must be voluntarily and 

intelligently made with knowledge of the dangers and disadvantages of proceeding to 

trial without counsel. Id. 
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 In consideration of the recognized constitutional dimensions of the parent-child 

relationship, we see no reason why the trial 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 reversible error by proceeding 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