## IN THE SUPREME COURT O F TEX AS

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### I N T H E 

### I N T E R E S T O F 

### K

. M

. L

. , A 

### C H IL D

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E N I N T H D I S T R I C T O F T E X A S

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J U S T I C E L E H R M A N N , joined by J U S T I C E D E V I N E , concur

ring

.
I join the Court’s opinion fi nding leg ally insufficient evidenc e that K.M.L .’s mother knowing ly and voluntarily relinquished her pare ntal rig hts. As to K.M.L .’s fathe r, J ohn, I ag ree with the Court that the court of appea ls’ judgme nt should be reve rsed, though I do not entirely ag ree with the Court’s re asoning

. The Court invalidates the jury ’s verdic t terminating J ohn’s pare ntal rig hts beca use the rec ord does not ref

lect that he rec eived notice of the trial in acc ordanc e with Texas Rule of Civil Procedur e 245. ___ S.W .3d at ___. But while the Court corr ectly holds that J ohn did not rec eive proper notice of trial, it incorre ctly conclude s that J ohn did not waive the lack of notice. I ag ree with the court of appea ls that a party who does not rec eive proper notice of trial waives err or by , as J ohn did, attending trial and fa iling to object to the lac k of notice or reque st a continuance

. ___ S.W .3d at ___ (citing In re J .( B.B.) M. , 955 S.W .2d 405, 407–08 (Tex. App.—San Antonio 1997, no pet.)). Fur ther, the fac t that the State had serve d J ohn with a subpoena is immaterial, as he testified that he had appea red voluntarily

and would have appea

red r eg ardle ss of the subpoena

.J ohn’s failure to prese rve err o r d o es , howeve r, cast light on issues the Court does not

rea ch—whe ther the trial court err ed in failing to appoint counsel to repr esent J ohn or admonish him of his rig ht to counsel. I would rea ch these issues and hold that, in light of indige nt pare nts’ statutory rig ht to appointed counsel in state-initiated termination proce eding s in Texas, the t rial court err ed in failing to admonish J ohn of that rig ht, rende ring him unable to meaning fully exercise it. Termination of p arental rig hts, the total and irrevoc able dissoluti on of the pare nt-child rela tionship, constitutes the “death penalty ” of civil case s. On multipl e occa sions, the U.S. Supreme Court has afforde d a high degr ee of constitutio n al respe ct t o a parent’s int ere st in maintaining the pare nt-child rela

tionship. See, e.g. , Smith v. Org. of Foster Families for Equal. & Reform , 431 U.S. 816, 843–45 (1977); Stanley v. Illinois , 405 U.S. 645, 651 (1972); Prince v. Massachusetts , 321 U.S. 1 5 8 , 1 6 5 (1944). Specifica lly , the Supreme Court has rec og nized the fundame ntal nature of a pare nt’s rig ht to raise one’s child, as an extension of the freed o m o f persona l choice in family
matters. Pierce v. Soc’y of Sisters , 268 U.S. 510, 534–35 (1925). Recog nizi ng the signific ance of the rig hts at s t ak e in pare ntal termination case s, the State of Texas aff ords unique protec tions to pare nts whose rig hts are in dang er of being terminated. E.g. , In re G.M. , 596 S.W .2d 846, 847 (Tex. 1980) (holding that, due to the constitutional import of the pare nt-child rela tionship, fac ts in pare ntal termination case s must be proved by clea r and convincing evidence, as o p p o s ed to a mere preponde ranc e). I n line with these protec tions, the Texas L eg islature has afforded indigent parents in stateinitiated termination proce eding s the rig ht to counsel. T E X . F A M . C O D E §§ 107.013, 262.201; In re B.G. , 317 S.W .3d 250, 253–54 (Tex. 2010) (“A n indige nt pare nt is entitled to appointed counsel in
2pare ntal rig hts termination case s, and that statutory rig ht

. . . embodies the rig ht to eff ective counsel.” (citation and internal quotatio n m arks omitted)). As discussed below, this rig ht, reg ardle ss of its

source , is meaning less without the ability to assert it. A defe ndant who has a constitutional rig ht to appointed counsel , such as a criminal defe ndant, has a cor

responding rig ht to be admonished of that rig ht a nd the dang ers of waiving it. See Faretta v. C

aliforni a , 422 U.S. 806, 835 (1975). This ensure s that defe ndants who ch o ose t o waive their rig ht to counsel do so k n o wi n gl y an d intelligently

. Id. at 835–36. After all, a constitutional entitlement is hollow if the protec ted individual is unable to asser t it beca use she does not know it ex ists. See M iranda v. Arizona , 384 U.S. 436, 478 (1966). U n li k e in the criminal context, a defe ndant in a state-initiated pare nta l te r mi n a ti o n p r o c e e d in g h as n o ab solute constitutional rig ht to assistance of counsel. Lassit er v. Dep’ t of Soc. Servs

. o f Durham Cnty., N.C. , 452 U.S. 18, 33 (1981). The Supreme Court held in Lassit er that, as the dang er of an indige n t l i t i gan t’s being deprive d of her persona l liberty diminis hes, so too does the presumption that she has a rig ht to counsel. Id. at 26–2 7. The Court went on to apply the three

fac tor test articula ted in Mathews v. Eldridge , 424 U.S. 319, 335 (1976), to deter mine whether due proce ss require d appointment of counsel for the indige nt pare nt in that case . 452 U.S. at 27. These fac tors include (1) the private interests at stake, (2) the g overnment’s interest, and (3) the risk of

err or. Id. Thoug h the Supreme Court de clined in Lassit er to find a constitutional rig ht to counsel (and, in turn, a rig ht to admonishment), the Court notably went on to point out that “[a] wise public pol i cy . . . m ay require that highe r standards be adopted than those minimally tolerable under the Constit ution.” Id. at 33. I n explaining t hat “[ state] courts have gene rally held t hat t he S t ate must
3appoint counsel for indige nt pare nts at termination proce eding s,” id. at 30 , t h e C o u rt not only

applaude d but encour ag ed such additional protec tions. See id. at 34 (“Most signific antly , 33 States and the District of Columbi a provide statutorily for the appointment of counsel in termination case s. The Court’s opinion today in no way implies that the standards incre asing ly urg ed by informed public opinion and now widely followed by

the States are other than e nlightene d and wise.” ). As noted above , Texas is among the s tates t hat s tatutorily aff ord i ndige nt pare nts the right
to appointed counsel in state-initiated termination proce eding s. See T E X . F A M . C O D E § 107.013. At the time the underly ing suit was filed, the statute stated in pertinent part: “In a suit filed by a g overnme ntal entity in which termination of the pare nt-child rela tionship is reque sted, the court shall appoint an attorney ad l i t em to repr esent the interests of

. . . an indige nt pare nt of the child who responds in opposition to the termination.” Act of May 27, 2003, 78th L eg ., R.S., ch. 262, § 1, 2003 Tex. Gen. L aws 1173, 1180, amende d by Act of Ma y 20, 2013, 83d L eg ., R.S., ch. 810, § 2, 2013 Tex. Gen. L aws 2026, 2026 (codifie d at T E X . F A M . C O D E § 107.013(a) ). Whil e the statute did not 1 expressly provide for admonishment, the L eg islature has since am ended section 262.201 of the Family Code to add an express admonishment require ment. Act of May 20, 2013, 83d L eg ., R.S., ch. 810, § 9, 2013 Te x . Gen. L aws 2026, 2029 (c odified at T E X . F A M . C O D E § 262.201(a- 1)). Pursuant to section 107.013, “[a] pare nt who claims indige nce under Subsection (a) must file

an aff idavit of indige nce . . . befor e t h e co u rt ca n conduct a hear ing to deter mine the pare nt’s

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. 4indige nce under this section.” T E X . F A M . C O D E § 107.013(d). I t is undisputed that J ohn never

reque sted appointed counsel under this provision. I t is also undis p u t ed , howeve r, t hat he was not admonished of his rig ht to counsel under this provision. Assuming tha t, under Lassit er , J ohn had

no constitutional rig ht to counsel in this case , admonishing an indige nt pare nt of his rig ht to counsel is no less cruc ial when it orig inates in a state statute rathe r than the U.S. Constit ution. A pare nt who is not admonished of that rig ht cannot intelligently exercise or waive it. Cf. Faretta v. Calif ornia , 422 U.S. 806, 835 (1975) (holding in the criminal context that the rig ht to counsel car ries with it the implied right to admonishment). Wit hout the rig ht to admonishment, many indige nt pare nts whose pare ntal rig hts are in peril fac e a no- win situation: t hey have a statutory rig ht to counsel if they follow the prope r proc edure s to e stablish their indige nce, but the y have no r ight to be admonished of their rig ht to counsel upon

a finding of indige nce and thus no way of ensuring they follow the require d proce dures to exercise it. That i s ex ac tly what happene d in this case . J ohn was entitled to appointed counsel if he demonstrated that he was indige nt, but was not admonished of that rig ht and in turn did not f ollow the statutory proce dures to invoke it. I ndeed, the trial judge told J ohn at trial that, had he established his indige nce ear lier, he would have been entitled to an appointed attorney , but that “[i] t’s a littl e late for t h at n ow.” The trial court thus aff irmatively rec og nized J ohn’s rig ht to counsel while simult aneously deny ing it. Had J ohn been admonished befor e t ri al t h at indige nt pare nts have a statutory rig ht to counsel, he would have had a chanc e to exercise, or waive, that rig ht. As the court of appe als stated in In re J .M. :

5I n the final analy sis, the Depa rtment’s position is that, beca use [Mot her] did not ask for the appointment of an attorney at or befor e the final hear ing, then we must assume she voluntarily waived any rig hts to appointed counsel under § 107.013(a)

. . . . The rec ord is devoid of any indication that [Mot her] knew of her rig hts to claim indige ncy and reque st counsel. Howeve r, in draw ing an analog y to criminal trials, we know that a cr iminal defenda

nt who is otherwise e ntitled to appointed counsel ca n waive his rig hts to counsel. Howeve r, such waiver must be voluntari l y an d intelligently made with knowledg e of the dang ers and disadvantag es of proce eding to trial without counsel. 361 S.W .3d 734, 738–39 (Tex. App.—Amar illo 2012 , n o pet.) (interna l citations omitted). Simi larly , in this case “[t] he rec ord is devoid of any indication that [J ohn] knew o f [hi s] rig hts to claim indige ncy

and re quest counsel.” Id. at 738. These conce rns are mag nified by the fac t that J ohn failed to rec eive notice of trial. As noted above, I believ e t h at J ohn waived err or on this g round, which only highlig hts the importance of repr esenta tion by counsel that J ohn was denied. Unlike a pro se litigant, an attorney would have been awa re of the need to object and reque st a continuan ce in order to avoid waiver problems. I nstead, without the g uiding ha nd of counse l, J ohn participa ted in the trial without objection. I would hold that, even befor e it was amende d to do s o expressly , the Texas Family Code

re q u ired trial courts to admonish pare nts (1) of their rig ht to appointed counsel in state-initiated pare ntal termination case s, and (2) that such rig ht is conting ent upon a finding of indige nce. The Texas L eg islature has taken pains to aff ord these p ar en t s more expansive protec tions than those minimally g uara

nteed under the U.S. Con s t i t ution. I t is well established that while the fede ral g o v ernment sets the floor for individual rig hts, the states set the ceiling

. LeCroy v. Hanlon , 713 S.W .2d 335, 338 (Tex. 1986); see also Dave nport v. Garcia , 834 S.W .2d 4, 14–15 (Tex. 1992). And the S tate of Texas aff

ords i ndige nt pare nts the rig ht to counsel in pare ntal termination ca ses, even 6when fede ral due proce ss does not. But an indige nt pare nt who is not informed of his rig ht t o

counsel, or how to exercise it, eff ectively has no rig ht to counsel in the first place

. Be cause J ohn was g iven no meaning ful opportunity to invoke, much less to intelligently waive, his rig ht to appointed repr esenta tion in these critica lly important proce ed i n gs , I ag ree with the Court that the court of appea ls’ judgme nt, which aff irms the trial court’s judgme nt terminating J ohn’s pare ntal rig hts, must be reverse d. Acc ording ly , I respe ctfully concur in the C ourt’s j udg ment, b ut I cannot join Part I I I of the Court’s opinion.

_________________________________ Debr a H. L ehrma

nn J ustice

OP INION DELIVERED: Aug ust 29, 2014

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