## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00018

- CV

IN THE INTEREST OF L.M., A CHILD

On Appeal from the County Court at Law Panola County, Texas Trial Court No. 2018

- 006

Before Morriss, C.J., St evens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
On October 14, 2019, the Department of Family and Protective Servic es filed a petition to modify the trial court’s prior order 1 that denied the Department’s prior petition to te rminate Mother’s and Father’s parental rights to their children, L.M. and K.M. 2 After a final hearing, the trial court terminated Mother’s p arental rights to L.M

. 3 under statutory ground s (D), (E), (O), and (P ) of the Texas Family Code 4 and terminated Fa t her’s parental rights under statutory grounds (C) and ( E ) of th e Texas Family Code. 5 The trial court also found that termination of Mother’s and Father’s parental rights was in the best interest of L.M. See T EX
. F AM
. C ODE A NN
. § 161.001(b)(2)

. Mother a n d Father both appeal. Mother ’ s attorney has filed an Anders brief with this Court arguing that there are no non

- frivolous issues that can be raised on appeal. See Anders v. California , 386 U.S. 738, 743

– 44 (1967). Father , however, argues that t he trial c ourt erred when the trial court failed to admonish him of his right to be represented by counsel and failed to appoint him counsel even though he was indigent

. 6

1 The prior order appointed the Department the permanent managing conservator of the children and app ointe d Moth er p ossessor y conserv ato r.

2 To protect the identities of the children, w e refer to the m by their initials and to their parents as “Mother ” and “Father.” See T EX
. R. A PP
. P. 9.8 (b)

.
3 K.M. was eighteen years old at the time the final order on th e moti o n to modify was entered.

4 S ee T EX
. F AM
. C ODE A NN
. § 161.00 1(b)(1) (D), (E), (O), (P)

.
5 See T EX
. F AM
. C ODE A NN
. § 161.001(b)(1) ( C ), (E)

.
6 On appeal, Father also challenges the factual and l egal sufficiency of the evidence supporting the trial co urt’s s t atu t ory ground s and best

- in te rest findings. Because his due process complaint is dispositive of this appeal, we do not need to address these issues. See T EX
. R. A PP
. P. 47.1

.3

Because we agree that there are no meritorious grounds for reversal of the trial court’s

o r de r terminating Mother’s parental rights to her children, we affirm the trial court’s order

t erminating Mother’s parental rights. However , because we find that the trial court erred when it failed t o admonish Fat her of his right to counsel as required by Se c tion 107.013(a

- 1) of the Texas Family Code , we reverse the trial court’s order terminating Father’s parental rights and remand the case to the trial court for a new trial.
I. No Meritorious Grounds for Reversal of the Termination of Mot her’s Parental Rights
Mother ’ s court

- appo inted appellate counsel has filed a motion to withdraw and a brief discussing the applicable law and evaluating the entire record in this case. Counsel states that she has reviewed the record and has found no genuinely arguable issues that could be raised on

a p peal. The brief sets out the procedural history of the case and summarizes the evidence eli cited during the trial court proceedings. Meeting the requirements of Anders , counsel has provided a professional evaluation of the recor d demonstrating why there are no arguable grounds to be advanced. See Anders , 386 U.S. at 743

– 44; In re Schulman , 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); see In re P.M. , 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (recognizing that A nders procedures app ly in parental

- rights termination cases).
On April 22 , 202 2 , counsel mailed to Mother copies of the brief and the motion to withdraw. Mother was informed of her rights to review the record and file a pro se response. On May 24 , this Court granted Mothe r’s p r o se motion for access to the appellate record and forwarded a copy of the appellate record to Mother. By that same letter , this Court informed Mother that any pro se response was due on or before June 23

. On June 29 , this Court f urther4

informed M other that the case would be set for submission on the briefs on July 20

. We received neither a pro se response from Mother nor a motion requesting an extension of time in which to file such a response. We have determined that Mother ’ s app eal is wholly fr ivolo u s. We have independently reviewed the entire appellate record and, like counsel, have determined that no arguable issue supports an appeal by Mother

. 7 See Bledsoe v. State , 178 S.W.3d 824, 826

– 27 (Tex. Crim. App. 2005). Even so , we d eny Mother ’ s co unsel ’ s motion to withdraw. See In re P.M. , 520 S.W.3d at 27 (noting that , in parental

- rights termination cases, court

- appointed counsel ’ s duty to her client generally extends “through the exhaustion of appeals,” “including the filing o f a pe tition for

re view” in the Texas Supreme Court). If Mother desires to pursue this matter in the Texas Supreme Court, counsel may fulfill her duty “by filing a petition for review that satisfies the
standards for an Anders brief.” See id

. at 28.
II. T h e Trial Court Failed to A d monish Father of His Right to Counsel On appeal, Father contends that the trial court erred when it denied him his right to counsel in violation of his constitutional rights

. He argues that the trial court erred both when it fai l e d to a dmonish him o f his right to be represented by counsel and when it failed to appoint him counsel even though he was indigent. The Department does not dispute that Father was indigent and agrees that Father ’s constitutional rights were violated by b e ing denied appointe d

cou n sel. Because we agree that the trial court erred when it failed to admonish him of his right

7 Our review determined, inter alia , that legally and factually sufficient ev id ence supported the trial court’s best

interest finding and its termination of Mother’s parental rights under statutory ground (E).5

to counsel , we reverse the trial court’s termination of Father’s par ental rights and remand Father ’ s case for a new trial. “Th e natural r ight existing be twe e n parents and their children is of constitutional dimensions.” In re L.E.S. , 471 S.W.3d 915, 919 (Tex. App.

— Texarkana 2015, no pet.) (quoting Holick v. Smith , 6 85 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamen t a l right t o mak e decisio ns con cerning ‘the care, custody, and control of their children.’” Id

. (quoting Troxel v. Granville , 530 U.S. 57, 65 (2000)). For that reason, “ the termination of pa rental rights implicates fundamental interests .” Id

. (quoting I n re A.B. , 437 S .W.3d 498 , 502 (Tex. 2014)). The Texas Supreme Court has recognized that , when the Department seeks termination of parental rights, “[p]arents face a complex and nuanced family

- law system that is challenging to navigate without the guidance o f counsel

. ” I n re B.C. , 5 92 S .W.3d 133 , 137 (Tex. 2019) (per curiam)

. “ Considering the importance of the fundamental rights at issue, the Legislature has adopted important safeguards in [ the Family Code] to help ensure parents will not be deprived of
t h e ir parent al r ights wit hou t d ue process of law. ” Id

. These safeguards in clude a “ statutory framework [that] mandates that courts repeatedly inform unrepresented parents about their statutory rights so they will have an adequate opportunity to understand a nd invoke tho se rights

. ” Id

. ; see T EX
. F AM
. C ODE A NN
. §§ 107. 013, 263.0061 , § 262.20 1 (Supp

. )

. In any suit filed b y a governmental entity that seeks the termination of parental right s, S ection 107.013 grants indigent par ents the right to appointed couns e l by requi r ing the cour t t o

a pp oint an attorney for “ an indigent parent of the child who responds in opposition to the termination .” T EX
. F AM
. C ODE A NN
. § 107.013 ( a)(1) ; In re B.C. , 592 S.W.3d at 135. In6

addition, S ection 107.013 requires t rial court s t o admonish any parent “not repr es en ted by an attorney at the pare n t’s first appearance in court

. . . o f : (1) the right to be represented by an attorney ; and (2) if the parent is indigent and appears in o pposition to the suit, the right to an attorney a d l i tem appoi nted by the cour t.” T EX
. F AM
. C ODE A NN
. § 107.013( a - 1) ; In re B.C. , 592 S.W.3d at 135.
To have an attorney appointed, a parent claiming indigence must first file an affidavit of indigence, and the trial court must make a determination that th e parent is in fact indigen t. In r e B.C. , 592 S.W.3d at 136; T EX
. F AM
. C ODE A NN
. § 107.013( d )

. However, the trial court must also inform the parent of the necessity of filing the affidavit of indigence. In re B.C. , 592 S.W.3d at
136. Thus, at the par en t ’ s first a ppea rance in cou rt, th e trial court must admonish the indigent parent of both h is right to have appointed counsel and the procedur al steps to obtain appointed counsel. 8
Here , over two years before the final hearing, Father filed his pro se answe r opposing
ter mination of h is parental rights

. In his answer, Father requested the trial court to determine that he was indigent and to appoint an attorney to represent him pursuant to S ection 107.013. Although Father was subseq uently notified of sever al p ermanency hearings before the f in al hearing, he failed to appear at any of those hearings. Consequently, Father’s first appearance in court was at the final hearing

.

8 Sections 262.2 01 and 263.0061 of the Texas Family Code also require that t he s e ad mon ishments be mad e to indigen t parents ap pearin g in opposition to termination at the fourteen

- day full adversary hearing , at each status hearing, and at each permanency hearing. T EX
. F A M
. C ODE A NN
. §§ 262.201 (c), (d) , 263.0061 (a), (b).7

When the final hearing began, the trial court asked f or announcements, and all part ie s represent ed by coun sel an nounce d ready. Although no announcement was made for Father, the trial court made no inquiry to find out if Father was present. Nevertheless, w hen the trial began , Father was call ed as the Department’s first witness

. Even tho u g h Father w as mak ing hi s f irst appearance in court , was unrepresented by counsel, had made a claim of indigence, and testified as the Department’s first witness, the trial
court never admonished him of his r ight to counsel , of his right to appo inted couns e l if he wa s indig ent, o r o f the necessity to file an affidavit of indigence in order to obtain appointed counsel. As a result, Father was deprived of the opportunity to understand and invoke those rig hts. See id.
at 137. Because the trial co urt failed t o adm onish Father of hi s r ight to appointed counsel and of the procedure necessary to obtain such counsel, as required by S ection 107. 013, the trial court deprived Fa ther of his parental rights withou t due process of law. See id

. 9 Therefore, we find tha t the trial court erred.
As a r esult of the trial court’s failure to properly admonish Father, he was unrepresented
at trial , where his parental rights to L.M. were terminated. Since it is undispu ted that Father was indigent , 10 the trial court’s failure to c omply wit h S ection 107.01 3 was n ot harmless, and r eversal is required. See id

.

9 In In re B.C. , the trial court cl early admonish ed Mot he r of her r ight to counsel at her first appearance in court. In re B.C. , 592 S.W.3d at 137

. Nevertheless, because the trial court failed to admonish her of her right to counsel and the right to appointed counsel a t subsequent hearing s at w hic h she was p re s ent , as r equired by S ection 263.0061 , the Supreme Court found that the trial court had reversibly erred. Id

.
10 As noted earlier , the Department d oes not dispute that Father was indigent. We also note that five d ays after the fina l hear ing , an affida vi t of indig ence , with a finding that Father was indigent, was filed. In addition , in its8

III. Conclus ion
We affirm the trial court’s order terminating Mother’s parental rights to L.M. However,

w e reverse the trial court’s order terminating Father’s parental rights to L .M. a nd r emand th is

case to t he trial court for a new trial.

Scott E. Stevens Justice Date Submitted: July 20, 2022 Date Decided: July 2 2 , 202 2

t ermination order , entered seven weeks after t he hearing, the trial court found that Fath er had filed an affidavit of indig en c e and appointe d an attorn ey ad litem t o re pre sent h im

.