NO. 07-06-0444-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 25, 2007

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In the Interest of R.C. and R.C.C., JR., Minor Children

_________________________________

FROM THE 99 DISTRICT COURT OF LUBBOCK COUNTY; TH

NO. 2004-527,727; HON. KEVIN C. HART, PRESIDING

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Concurring Opinion

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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

I concur with the majority’s opinion and result but write separately to stress that

Texas Family Code §263.405(i) should be revisited by the legislature. It is beyond doubt

that the parent/child relationship is of constitutional magnitude. Wisconsin v. Yoder, 406

U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); In re C.H., 89 S.W.3d 17, 26 (Tex. 2002);

Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). And, once termination occurs, it is

final and irrevocable; the proceeding permanently divests the parent and child of all legal

rights, privileges, duties, and powers with respect to each other except for the child's right

to inherit. Wiley v. Spratlan, 543 S.W.2d at 352. Thus, it is imperative to assure that due
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process be afforded both parent and child. That did not occur here since appellant was

denied opportunity by her appointed counsel to appear at the hearing. This was so

because trial counsel failed to request a bench warrant from the court compelling her

appearance at trial. Moreover, there is little doubt counsel knew of her client’s interest in

attending given that the trial was continued at one point so arrangements could be made

to secure appellant’s presence. Yet, given the wording of §263.405(i) and appointed

counsel’s failure to designate her potential ineffectiveness as an issue on appeal, nothing

can be done to cure the default.

It may well be that the parent/child relationship necessitates termination due to the

conduct of a parent. Yet, parents are entitled to due process, as is the child. At the very

heart of due process is the opportunity to be heard in defense of another’s accusations.

See Masonic Grand Chapter of Order of Eastern Star v. Sweatt, 329 S.W.2d 334, 337

(Tex. Civ. App.–Fort Worth 1959, writ ref'd n.r.e.). Moreover, indigents, such as appellant,

are to be given appointed, effective counsel to foster their receipt of due process in general

and the chance to be heard in particular. See TEX. FAM. CODE ANN. §107.013(a)(1)

(Vernon Supp. 2006) (requiring the appointment of counsel to the indigent); In re M.S., 115

S.W.3d 534, 544 (Tex.2003) (requiring that counsel be effective). When egregious wrong

occurs, however, and we are barred from correcting it due to the application of a statute

to situations which, most likely, no one intended, our legal system has failed in that

instance. Such happened here. Consequently, I join with the Fort Worth Court of Appeals,

the Houston Court of Appeals (1 District), the Dallas Court of Appeals and Justice Vance st

of the Waco Court of Appeals in asking the legislature to reconsider the scope of

§263.405(i). See In re D.A.R., 201 S.W.3d 229, 230-31 (Tex. App.–Fort Worth 2006, no
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pet.); Pool v. Tex. Dep’t of Family & Protective Servs., No. 01-05-01093-CV, 2007 Tex.

App. LEXIS 1576 (Tex. App.–Houston [1 Dist.] March 1, 2007, no pet. h.); In re R.J.S. and st

M.S., No. 05-05-01641-CV, 2007 Tex. App. LEXIS 2770 (Tex. App.–Dallas April 22, 2007,

no pet. h.); In re E.A.R., 201 S.W.3d 813, 816 (Tex. App.–Waco 2006, no pet.) (Vance, J.,

concurring).

Brian Quinn

 Chief Justice