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

NO. 03

- 22

- 00502

- CV

A. G. , Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY NO. C210047CPS, THE HONORABLE ELIZABETH WATKINS , JUDGE PRESIDING

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

Appellant A.G. (Mother) appeals from the trial court ’ s order, following a bench trial, terminating her parental rights to her child E. G., born May 13, 2021 (Daughter)

. 1 In a single issue on appeal , Mother argues that the district court erred in failing to adequately
admonish her of her right to court-appointed counsel. We will affirm the order of termination

.

BACKGROUND
The case began in May 2021, when the Texas Department of Family and
Prote ct ive Services (the Department) received a report that Mother had given birth to a newborn
and had tested positive for marijuana

. In the Department’s removal affidavit, Department investigator Tr e dean Williams averred that he made contac t with Mother in a h ospital room with

1 For the child’s privacy, we refer to her and her parent s by thei r initials and by their familial relationships to each other

. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.2 a police guard. Mothe r informed Williams that she had been jailed in April 2021 for theft, that she would be going to prison for six months, and that “ she used meth about a month ago and she smoked marijuana about fifteen days ago. ” M ot her also stated tha t “ this is her fourth time having to deal with CPS , ” that her three other children “ were taken away due to marijuana , ” and
that “ she h ad methamphetamines in her system ” when she had her third child

. Mother provided
Williams with the n am e of Daughter ’ s alleged father , M.O., bu t Williams was unable to speak to
him because he was currently in jail

. D ue to Mother ’ s drug use while she was pregnant with
Dau ghter , her incarceration, and the removal of Mother ’ s other children due to her drug us e, t he Department sought and obtained emergency removal of Daughter from Mother

. In its Order for Protection of a Child in an Emergency and Notice of Hearing, the trial court found:

that appointment of an attorney ad litem for the Respondents may be ma nd atory under § 107.013, Texas Family Code. IT IS ORDERED that Respondents appear at the adversary hearing with all pertinent information, including an affidavit of indigence as mandated in § 107.013(d), Texas Family Code, regarding their income. Upon a s h owing of indigency and opposition to t he suit affecting the parent

- child relationship a licensed attorney at law of this state will be appointed to represent the Respondents.
The order also included the following “ Notice to Parents ” :

YOU HAVE THE RIGHT U N DER §262.102(d), TEXAS FAMILY CODE, TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UNAB LE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT 340TH JUDICIAL DISTRICT COURT OF TOM GREEN COUNTY, 112 W. BEAUREGARD, SAN ANGELO, TEXAS 76903, (325) 659

- 6579. IF YOU APPEAR IN OPPOSITION TO THE SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR E V IDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT3 DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU.
Also attached to the order was a copy of the trial court ’ s standing order s i n child protection cases, which included the following advice :

Respondents are advised that they have the right to retain legal counsel and that, if a Respondent parent is indigent [] and the parent responds in opposition to the Department ’ s suit, the R e spondent parent may request court
- appointed legal counsel be appointed by the Court by filing with the District Clerk an affidavit of indigence form, which form may be obtained from the District Clerk, and by [] submitting to the Court such additional e vi d ence as may be required by the Court pursuant to Section 107 .013, Texas Family Code, and other applicable law, to determine the Respondent parent ’ s indigence.

The trial court ’ s docket sheet reflects that a t the full adversary hearing held on May 26, 2 02 1 , t he Department announced that it was seeking to be continued as Temporary Managing Conservator of Daughter , f o r Daughter to rema in in her current f o ster care placement while the Department check ed on possible relative placements, f o r Mother to be appo in t ed as a Temporary Possessory Conservator and granted visitation rights , f o r paternity testing to be
ordered , and f o r Mother and M.O. to be ordered to participate in services

. 2 Mother and M.O.

“ each indicated they were in agreement with the orders

. ” Al so at the hearing ,

2 The Depar tment created a serv ice plan for Mother, which she signe d and became an order of the court . The plan inclu ded require ments that Mother: demonstrate an ability to find and maintain a stable living arrangement; demonstrate that she can obtain and maintain a legal source of inc ome; engage in any classes offered a t the county jail; participate in all programs or
s ervices off ered by the state jail to which she is sent that relate to her case, such as drug treatment, sober living, parenting, counseling, and GED classes; update case worker on the status of her criminal case; participate and engage in individual counsel ing until s uccessfully discharged; submit to random drug testing as requested by the caseworker and test negative for all illegal substances; and com plete a psychologica l evaluation

.4 Th e Court advised the Respondent Mother and the Respondent Alleged Father of their right to reta in legal counsel and advise d the Respondent Mother of her right to request court

- appointed legal counsel if she were opposed to the relief
re que sted by the Department and if she could establish indigence. The Respondents did not oppose the relief requested and they did not request ti me to reta in counsel or request court

- appointed counsel.
In its temporary orders following the hearing, “ The C ou rt defer [red] its finding regarding an attorney ad litem for [Mother] , because [Mother] has not appeared in opposition to this suit or
has not established indigency

. ” The orders also contained the same written admonishment noted
above regarding the righ t to counsel that was included in the protection order , as well as a copy
of the stan ding order noted above that advi sed parents re gar ding the ir right to counsel.
The trial court ’ s docket sheet reflects that a t the status hearing held on August 30,
2 021,

The Court again advised the Respondent Mother of her right to reta in counsel and of her right, if she were opposed to the relief sought by the Department and if she could establish indigence, of her right to request court

- appointed counsel and the pr ocedure t o do so. The Respondent Mother made no req uest f o r counsel at the hearing.

Also at th at hearing, Mother identified her boyfriend , J.B., as a possible father of Daughter

. Consequently , “ [ t ] he Court directed the Department to amend its pleadings t o bring h im into the
suit so paternity testing could be done. ” DNA testing later confirmed th at Daughter ’ s father was
J.B. (Father)

. The trial court subsequently held two permanency hearings

. Mother and Father did not appear at either hearing. At th e first hea ring, held on November 9, 2021, according to t he
trial court ’ s docket sheet ,5 The Court took judicial notice of the Court ’ s file to the extent it reflected that the Court had previously advised the Respondent Mother of her right to reta in couns el and of her ri ght, if she were opposed to the relief sought by the Department and if she could establish indigence, of her right to request court

- appointed counsel and the procedure to do so. The Respondent Mother has made no request f o r counsel to the Co urt and no atto rney purporting to represent her has ente red an appearance in the case on her behalf.

The docket sheet further noted:

The Respondent Mother, who had been incarcerated in the Tom Green County Jail, was released on 09

- 29

- 2021 and she has not m aintained c ontact with the Department since her release and her current whereabouts are unknown. Other than completing so m e parenting packets while incarcerated and so m e services at the jail, the Respondent Mother has not completed any other services an d she has not been visiting the child.

The docket

- sheet entry for the second permanency hearing , held on March 8, 2022, reflects that

“ parents were no shows ” at the hearing and t hat Mother and Father were “ in and out of jail

. ” The case proceeded to a ben ch trial on Apr il 13, 2022 , which was conducted via
Zoom

. Mother and Father both appeared pr o se. 3 At trial, Department c aseworker Kami Ba iley
testified that Mother “ ha [d] been incarcerated three times during this case ” and ha d not responded to Bailey ’ s ca lls, text mes sages , or emails. Bailey added, “ I did attempt to home visit several times. One time I was able to speak with [Father], and [Mother] actually went out the
back door. . . . So , I have not been able to visit with her. ” Bailey also testifie d that Mother h ad not seen Daughter “ since she gave birth, so almost a year in May. ” Regarding Mother ’ s family service plan, a copy of which was a dmitted into evidence, Bailey testified that Mother completed

3 Although Mother coul d not be seen on camera at the beginning of trial, the record reflects that she was present with Father and that she began speaking when Father was asked to provide a statement.6 some classes while incarcerated but failed to c om plete other s ervices including regular drug

test i ng , which Bailey identified as one of the most important aspects of Mother ’ s service plan. Bailey further testified that Daughter had been placed in a foster home since birth
and was “ doing very well ” in t he placement

. Bailey explained, “ She ’ s very bonded with the caregivers, and also the caregivers ’ other children. She is placed with a biological sister that they have previously adopted; [the sister] ’ s now four years old. So, she ’ s very bonded with the
fa mily. ” Baile y believed that all of Daughter ’ s p hysical and emotional needs were being met in the home and that it was in Daughter ’ s best interest for this placement to continue. Bailey further opined that Daughter did not have any kind of bond with eit he r Mother or F a ther because
she had “ never met ” Father and h ad “ never seen [Mother] besides after [Mother] gave birth to
her. ” Bailey had seen nothing to indicate that either parent would be able to provide for Daughter ’ s physical or emotional well

- being

. After Bailey testified, Father , who was also a drug user, asked for an “ extension ”
and “ a little bit of time ” to “ get [him self ] together

. ” Mother joined Father in asking that he be

g ranted an extension , explaining that although she had “ known about this c ase ” since Da ughter

was born , Father had “ just found out that this is his child ” and had “ no time at all to even try to bond with his child, to even try to do anything. ” Mother testified that she was aware Father used methamphetamine but that he was “ tr yi ng to stop. ” Mother also testified that she had last used methamphetamine in January and that she and Father had n ot used methamphetamine together.
A fter Mother testified , t he trial court announced that it had heard Father ’ s “ plea for additional
time ” an d would reces s the proceedings and “ resume this final hear ing pending the results of ” additional drug test s on Father. The trial court added, “ When we resume, I will allow the parties

to re

- open, if necessary, based on any new drug test results or infor ma tion from [Fa ther]. ”7 The trial resumed on June 29, 2022 , again via Zoom

. This time Mother appeared
but Father did not. Bailey testified that Father took additional drug test s in April, May , and June
and tested positive for drugs each time. 4 Bail ey al so testified tha t sinc e the last hearing, Mother
had been arrested o n “ active w arrants, ” including on a drug p ossession charge. Bailey explained that Mother had been arrested following “ a call for domestic violence ” between Mother
and Father:

They were ar gu ing in a park that is right across the street from their ho use, and somebody called the cops. So, when the cops arri ved, they located [Mother ] and [Father]. When they saw the cops, they ran towards the house, and the cops were able to stop them and arr es t her.
Bailey further testified that Daughter was continuing to do “ very well ” in her current place ment
and was “ thriving ” there.
Mother did not testify , but in her closing statement , she asked that Father be given
more time to “ prove himself ” and tha t she be allowed “ to work for this child. ” Mother a lso
stated that she had “ a jury trial in November ” on her pending criminal charges but that she was

“ not going to take it to a jury trial ” and was “ going t o try to take the least amount of time they give [h er]. ” However, s he a cknowledged , “ I ’ m going to have to go to the pen itentiary, but I
have t o make parole and everything. We have a drug problem. You know what I mean? ” At the conclusion of trial, the trial court found by clear and convin cing evidenc e
that Mother had : (1) knowingly placed or knowingly allowed the child to remain in conditions or

4 Although Bailey di d not provide specific details regarding the results of F a ther ’ s drug tests , a permanency report submitted t o the cour t stated that Father “ tested positive on an oral swab on 3/11/2022 for methamphetamine and marijuana , ” “ test [ed] positive on a hair follic le and urine analysis on 4/14/2022 , ” “ tested positive on a n oral swab on 5/23/2022 for methamphetamine and m arijuana ” and “ tested positive on an oral swab on 6/10/2022 for methamphetamine

. ”8 surroundings which endanger the physical or emotional wel l

- being of Daughter ; (2) engaged in conduct or knowingly placed the child with persons who engaged in c onduct which en dangers the physical or emotional well

- being of Daughter ; and ( 3 ) failed to comply with the provisions of a court order that specifically established the actions necessary for M other to obtain the return of Daughter

. See Tex. Fam. Code § 16 1.001(b)(1)(D), (E), (O). Regarding Father, the trial court
found that he knowingly placed or knowingly allowed Daughter to remain in conditi ons or surroundings which endanger the physical or emotional well

- being of Daughter

. See id

. § 1 61.001(b)(1)(D)

. The trial cour t also foun d that termination of Mother ’ s and Father ’ s parental rights was in the best interest of Daughter. See id . § 161.001(b)(2). This appeal by
Mother followed. 5

D ISCUSSION
In her sole issue on appeal, Mother asserts that t he tr ia l court erred in failing to
ade quately admonish her of her right to court

- appointed counsel. “ In a suit filed by a governmental entity

. . . in which termination of the parent

- child relationship or the appointment of a conservator for a child is request ed , the court shal l app oint an attorney ad litem to represent
the interests of an indigent parent of the child who responds in opposition to the termination or

5 After the trial court announced its ruling, the trial court ad v i sed Mother that she had a righ t to appeal its ruling , a nd Mother informed the trial court that she wanted to appeal i t

. The trial court subsequently appointed Mother appellate counsel

. Mother’s court

- appointed counsel filed a motion to withdraw and an A nders brief concluding that the appeal wa s frivolous an d without merit. See Anders v. California , 38 6 U.S . 738, 744 ( 1967)

. However, this Court concluded that the record contain ed at least one non

- frivolous issue for appeal, specifically, the possible de nial of Mother’s right to trial counsel , and we abated t his appeal and remand ed to the trial court for the appointment of new counsel to brief that and any oth er issues that new counsel determine d to be meritorious

. See A. G. v. Texas Dep ’ t of Fam

. & Prote ctive Serv s. , No. 03

- 22

- 00502

- CV , 2022 WL 10714200 , at * 1 (Tex. App.

— Austin Oct. 19 , 2022) (per curiam
or d er and mem. op.).9 appointment

. ” Tex. Fam. Code § 107.013 (a) (1)

. Moreover, “ if a parent is not represented by an

at torney at the pa rent ’ s first appearance in court, the court shall inform the parent of: (1) the right
to be represented by an attorney; and (2) if the par ent is indigent and a ppears in opposition to the suit, the right to an attorney ad litem appointed b y the court. ” Id

. § 107.013(a

- 1). This requirement applies “ [ b ] efore commencement of the full a dversary hearing , ” id . § 262.201(c),
and “ [ a ] t the status he aring and at each permanenc y hearing held after the date the court renders a temporary order appoi nt ing the departme nt as temporary managing conservator of a child , ” i d

. § 263.0061 (a) ; see In re B.C. , 592 S.W.3d 133, 137 (Tex. 2019). In this case, the record reflects th at consistent with the above statutory requirements, the trial court admonished Mo ther of her right to counsel at both the May 26 , 2021
full advers ary hearing and at the August 30, 2021 status hearing

. The record further reflects that
Mother did not request counsel at either hearing

. Additionally, Mother failed to appear at either

p er manency hearing. Thus, the trial court could not admonish her of her right to counsel on
those occasions. Finally, the record does not reflect that Mother request ed the a ssistance of

c ounsel at any point be fore or during trial , despite being told on mu lt iple occasions bef ore trial , both in person and in writing, that she had a right to counsel and that if she could establish her indigen ce , then she had a right to appointed counsel

. 6

6 Additionally, the Texas Supreme Court has held that a trial court is required to appoint counsel for a parent “ only when an affid avit of indigence has actually been filed and the trial court has determined the parent is truly indigent. ” In re B.C

. , 592 S.W.3d 133, 136 (Tex. 2019). In this case, Mother never filed an affidavit of indigence , which “ is a necessary prerequisite to a d etermination that the parent is indigent. ” Id .; see als o J.E. v. Tex. Dept. of Family & Protective Servs. , No. 03

- 14

- 00164

- CV, 2014 WL 4536569, at *8 (Tex. App.

— Austin Sept. 10, 2014, no pet.) (mem. op.) (“To be entitled to court

- appointed counsel, a ‘par ent who claims indigence

. . . must file an affidavit of indige nce[.]’ ”); In re K.L.L.H. , No. 06

- 09

- 00067

- C V, 2010 WL 87043, at *5 (Tex. App.

— Texarkana Jan. 12, 2010, pet. denied) (mem. op.) ( describing parent ’ s filing of10 Parental rights are “perhaps the oldest of the fundamental libert y interests” protected by the United States Constitution. Troxel v. Granville , 530 U.S. 57, 65 (2000). They have been characterized as “essential,” “a bas ic civil right of man,” and “far more precious than property rights.” Holick v. Smith , 685 S.W.2d 1 8 , 20 (Tex. 1985) (citing Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). Additionally, due to the magnitude
of the constitutional rights at stake, p roceedings to terminate parental rights are sometimes
considered “ quasi

- cri m i nal ” in nature

. See In Interest of A. J. , 559 S.W.3d 713 , 718 (Tex. App.

— Tyler 2018, no pet.) ; see also In re K.M.L. , 443 S.W.3d 101, 121 (Tex. 2014) (Lehrman n, J., concurring) ( “ Termination of parental rights, the total and irrevocable dissolution of th e parent

child relationshi p, constitutes the ‘ death penalty ’ of civil cases. ” ); In re E.L.T. , 93 S.W.3d 372,
377

– 78 (Tex. App.

— Houston [14th Dist.] 2002, no pet.) (Guzman, J., concurring) (recognizing “quasi

- criminal” nature of termination proceedi ngs in c e r tain contexts ). For the se reasons , we believe that the better practice would be for the trial court to admonish a parent of her right to
counsel and to ask a n unrepresented parent , on the record, if she w a nts the assistance of counsel or is willing to for ego that right, simil ar to the requirements for waiving the right to counsel in
criminal cases

. Cf

. Faretta v. California , 422 U.S. 806, 835 (1975) ; Osorio

- Lopez v. State , ___ S.W.3d ___ , 2022 WL 2335394, at *4 (Tex. Crim. App. 2022) ; cf. also In re C.L.S. , 403 S.W.3d 15, 20

- 22 (Tex. App.

— Houston [1 st Dist.] 2012, pet. denied). However, that is not what the Texas Family Code currently requires , an d on this record, we cannot conclude that the trial court
erred when it compl ied with the statutory requirements

. We overrule Mother ’ s sole issue on appeal

.

affidavit of indigency a s “the act which would trigger the process for mandatory appointme nt of an attorney ad litem”).11 CONCLUSION
We affirm the trial court ’ s order of termination.

__ ____________________________ ____________ Gisela D. Triana, Justice
B efore Chief Justice Byrne, Justices Triana and Smith
A ffirmed
Filed : December 29, 2022