### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00084
- CV

D. R. , Appellant

v. Texas Department of Family and Protective Services , Appellee

FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. C2020
- 0451A , THE HONORABLE MELISSA MCCLENAHAN , J UDGE PRESIDING

M E M O R A N D U M O P I N I O N

D . R. ( Mother) appeals t he trial c ourt ’ s final order terminating her parental rights
to her child ren, K.P. and J.P. , arguing that the trial court committed rev ersible error in f ailing

to appoint co un sel for her

. 1 See Tex . F a m. Code §§ 107.013 ( requiring trial court to appoint attorney ad litem to represent indigent par ent in parental

- termination su its filed by g overnmental entity ), 161.001(b) ( providing circumstances under which trial court m ay ord er termination of parent

- child relationship )

. For the following reasons, w e will affi rm the order.

BACKGROUND On March 12, 2020 , t he T e xas Department of Family and Prote ctive Services
filed an O riginal P etition for the Protection of a Child for Conserva t o r ship and for Termination in Suit Affecting the Parent

- Child Relationship . Mother and Father each filed a wa iver of

1 The trial court ’ s order also terminated the parental rights of th e ch ildren ’ s father (Father) , but he does not a ppeal.2

citation and service and an affidavit of indig enc e on March 24 , 2020

. See id. § 107. 013(d) ; Tex. R. Civ. P. 145(b)

. Th at sam e day , t he tr ial court conducted a n indigency hearing at which both
Mother and Fat h er tes tified. The trial court questioned the parties extensively about their sources
and amounts of income and total expense s in different categories

. Evidence showed that Mother
and F ather shared a ho usehold and had over $1,300 of dispos able monthly inc om e after paying their necessary expenses

. At the conclusion of the hearing the trial court found that th e parents were not indigent and therefore not entitled to court

- appo inted coun se l

. 2 The court informed
Mother and Fathe r that they did not q ualify fo r court

- appointed counsel and needed to retain and pay for their own counsel , should they desire , and provided them with a list of attorneys who regularly handle CPS cases

. Father i nd ic ated that he would likely repre sent himself, and Mother
indicated her interest in retaining an attorney on the list. The court als o informed both parents of
the next court setting s cheduled for April 7.

Neither Mother nor Father appeared at the April 7 se tting despite being “ duly and properly notified , ” after which the tr ial court rendered an order extending its emergency orders , and the case was set for an adversar ial hearing on April 9, again neither parent appear ing

. In an April 22 status report , t he Department asked t he court to make the Department ’ s service plan for
th e parents a n order of the cour t, which the court did after a June 9 status hearing at which
neither parent appeared despite being “ duly and properly notified ” a s reflected in the cou rt ’ s order. Trial was set for August 25.

2 The c ou rt ’ s handwritten doc k et sheet for March 24, 20 20 reads , “ Parents D /N qualify for ct

- appointed atty. ” In its Apr il 7 Order Extending Emergency Orders, the trial c ourt reci ted its March 24 findi ng that Mother and Father are not indigent.3 On August 25, the date the case was set for trial, Father filed a n original answer
and a new affidavit of indigence. While no new affidavit of indigence for Mother appears in the record, Father ’ s August 25 aff id av it includes Mother ’ s income and expenses as part of his
h ousehold and states th at they share a household. When the case was called for the August 25 trial setting, the court swore in Mother and Father and be gan questioning them about why th ey had not be en in contact with the Department as the Department had al leged

. A f ter each pare nt
testified ab out how their income s had substantially decreased since March because of the
COVI D

- 19 pandemic and about how they had been unable to retain attorneys due to t he ir
finances , the trial court announce d that it was appoi nting counsel for each parent and provided
each of th em with the name and phone number of their respective newly appointed attorney

. The case was referred to media tion and then set for a final benc h tri al i n January 2021. Trial
occurred on January 26 and 28 , 2021

.

At the beginning of t rial , Mother ’ s an d Father ’ s respective court

- appoin ted attorney each announced “ not ready ” because their clients were no t present and had not been in
sufficient c om munic ation with them to prepare for trial . The t rial court overruled the court

appointed attorney s ’ “ not ready ” announcements, and tri al commen ced. Af ter trial, the court rendered an order terminating Mother ’ s and Father ’ s parental rights to t heir two ch ildre n.

DISCU SSION In one issue, Mother contends that becau se n either the Depart ment nor the district
clerk contested her March 2020 affidavit of i ndi genc e , she was entitled to court

- appointed
counsel as a matter of law and that the trial court abused i ts di scretion and rever sibly erred in not4

appointing Mother co unsel at t hat juncture

. 3 To support her argument, Mother cites this Court ’ s 2014 opinion in J.E. v

. Texas Dep ar tment of F am ily and Protective Serv ices , No. 03

- 1 4

- 00164

- CV, 2014 WL 4536569, at * 8

– 9 ( Tex. App.

— Austin Sept. 10, 201 4, no pet. ) (mem. op.) (hol ding that because neither Department nor clerk file d written contest challeng ing father ’ s Rule 145 affidavit , fat he r was “ indigent as a matter o f law ” and trial court “ was re quired to provide hi m wit h ap pointed counsel ” (citing Hager v. Apollo Paper Co rp. , 856 S.W.2d 512, 514 (Tex. App.

— Houston [1st Dist.] 1993, no writ ) ).

However , J.E. is distinguishable and thus no t dispos itiv e of this appeal becaus e it s holding was based on a former ver s io n of R u le 145 , which s pecifically provided for the contest
of an a ffidavit of indigence by only the defend ant or the clerk : “ Contest. Th e defendant or the clerk may contest an affidavit tha t is not accom pani ed by an IOL TA certificate by fil ing a written

c ontest giving notice to all parties [

. ] ” Tex. R. Civ. P. 145 (d) ( Vernon ’ s 2005, amended 2016 )

. However, the current version of Rule 14 5 sp e cifi cally conte mp lates that a trial court may

su a sponte require a party who has filed an affidavit “ to prove the in ability to afford costs ”
when “ evidence comes before the court ” that the party may be a ble to afford them. Tex. R.
Civ. P. 145 (e)(2)

. 4

3 M other al so curs or ily complains t hat the trial court ’ s lat er appointment of counsel for her in A ugust 2020

— on the sam e day that the trial court heard evidence about Mother ’ s and Father ’ s alleged change in financial circumstances

— was a “ toothless exercise ” b ecause s uch app oi ntment was after a “ critical stage ” in the proceedings had “ come and gone

. ” However, s he does not spec ifically raise any issues as to that latter appointment and , in any even t, that latter appointment is irrele vant to Mother ’ s complain t that the trial c ou rt abused it s discr etion in

“ failing ” to appoint her counsel in March 2020

.

4 Rule 145 was amended in 2 016 and again in 2 021 with an effective date of April 15, 2021 . While the 2016 version, rath er than the 2021 one, applies to this case , we cite t o the c urrent version be cause

— for p urposes of the issue in th is appeal

— it reads substantially the5 M other would have this Court hold that if neither the Department nor the clerk has contested the parent ’ s indigence , a trial court may not conduct a hearing to determine whether a parent is indigent but must, rather, take that parent ’ s affidavit as conclusive of indigence

. W e decli ne to so hold because to do so would con travene both the current version of
Rule 145 , se e id. , and the express mandat e i n Family Code Section 107.013 for a trial court to

“ determine ” whether a parent is indigent when a parent has placed indigence in issue by filing a
Rule 145 affidavit , see Tex. Fam. Code § 107.013 (d) ( requiring p arent to fil e Rule 145 affidavit
before c ourt “ may conduct a hearing to determine the pare nt ’ s indigence , ” permi tting court to

“ consider a dditional evi dence at that hearing, ” and providing that court “ shall appoint attorney
ad litem to represen t the parent ” if “ the co ur t determ ine s the parent is indigent ” ), (e) ( “ A parent
wh o the court has determined is indigent for purposes of this section is presumed to rem ain indigent for the duration of the suit and any subsequent appeal unless the court . . . determine s that the p ar ent is n o longer indigent

. . . . ” ).

T he trial court heard evidence in March 2 020 on Mother ’ s Rule 145 affidavit and

ma de a determination that she was not indigent and therefore not entitled to appointed counse l at that j uncture . Mother does not con te nd on appe a l that the trial court ’ s March 2020 determination

was not supported by sufficient evidence but merely contends , e rroneously , that the trial court
had no discretion to sua sponte hear evidence to a ssist i t in making the indigen ce determination
wi th which t h e legislature has expressly charged trial courts

. Se e id. § 107.013(d) , (e)

. We
conclude that the trial court did not abuse its discretion in refusing to appoint Mother counsel in March 2020 and, acc ordingly, overrule M o ther ’ s sole issue

.

same as the 201 6 version

. Compare Te x . R. Civ. P. 1 45( f)(4) ( Vernon ’ s 2016, am end ed 20 21) , w ith Tex. R. Civ. P. 145(e)(2)

.6 CONCLUSION
W e aff ir m the trial court ’ s order of termination.

__________________________________________ Thomas J. Baker , Justice
Before Chief J ustice Byrne, J u stices Baker and S mith
Affirmed
Filed: July 1, 2021