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 

Protective 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 Tredean Williams averred that he made contact with Mother in a hospital room with 

1 For the child’s privacy, we refer to her and her parents by their 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. Mother 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.” Mother also stated that “this is her fourth time

having to deal with CPS,” that her three other children “were taken away due to marijuana,” and 

that “she had methamphetamines in her system” when she had her third child. Mother provided 

Williams with the name of Daughter’s alleged father, M.O., but Williams was unable to speak to 

him because he was currently in jail. Due to Mother’s drug use while she was pregnant with 

Daughter, her incarceration, and the removal of Mother’s other children due to her drug use, the 

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 mandatory 

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 showing of indigency and opposition to the 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 UNDER §262.102(d), TEXAS FAMILY CODE, 

TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT 

AND UNABLE 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

EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT
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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 orders in 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 Respondent 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 

evidence 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 at the full adversary hearing held on 

May 26, 2021, the Department announced that it was seeking to be continued as Temporary 

Managing Conservator of Daughter, for Daughter to remain in her current foster care placement 

while the Department checked on possible relative placements, for Mother to be appointed as a 

Temporary Possessory Conservator and granted visitation rights, for paternity testing to be 

ordered, and for 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.” Also at the hearing,

2 The Department created a service plan for Mother, which she signed and became an 

order of the court. The plan included requirements that Mother: demonstrate an ability to find 

and maintain a stable living arrangement; demonstrate that she can obtain and maintain a legal 

source of income; engage in any classes offered at the county jail; participate in all programs or 

services offered 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 caseworker on the status 

of her criminal case; participate and engage in individual counseling until successfully 

discharged; submit to random drug testing as requested by the caseworker and test negative for 

all illegal substances; and complete a psychological evaluation.
4

The Court advised the Respondent Mother and the Respondent Alleged Father of 

their right to retain legal counsel and advised the Respondent Mother of her right 

to request court-appointed legal counsel if she were opposed to the relief 

requested by the Department and if she could establish indigence. The 

Respondents did not oppose the relief requested and they did not request time to 

retain counsel or request court-appointed counsel.

In its temporary orders following the hearing, “The Court 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 right to counsel that was included in the protection order, as well as a copy 

of the standing order noted above that advised parents regarding their right to counsel.

The trial court’s docket sheet reflects that at the status hearing held on August 30,

2021, 

The Court again advised the Respondent Mother of her right to retain 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 

procedure to do so. The Respondent Mother made no request for counsel at 

the hearing.

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

Consequently, “[t]he Court directed the Department to amend its pleadings to bring him into the 

suit so paternity testing could be done.” DNA testing later confirmed that 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 the first hearing, held on November 9, 2021, according to the 

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 retain 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 procedure to do so. The Respondent Mother has made no request for counsel 

to the Court and no attorney purporting to represent her has entered 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 maintained contact with the 

Department since her release and her current whereabouts are unknown. Other 

than completing some parenting packets while incarcerated and some services at 

the jail, the Respondent Mother has not completed any other services and 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 that Mother and Father were “in and out of jail.”

The case proceeded to a bench trial on April 13, 2022, which was conducted via 

Zoom. Mother and Father both appeared pro se.3 At trial, Department caseworker Kami Bailey

testified that Mother “ha[d] been incarcerated three times during this case” and had not 

responded to Bailey’s calls, text messages, 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 testified that Mother had 

not seen Daughter “since she gave birth, so almost a year in May.” Regarding Mother’s family 

service plan, a copy of which was admitted into evidence, Bailey testified that Mother completed 

3 Although Mother could 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 complete other services including regular drug 

testing, 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 the 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 

family.” Bailey believed that all of Daughter’s physical 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 either Mother or Father because 

she had “never met” Father and had “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 [himself] together.” Mother joined Father in asking that he be 

granted an extension, explaining that although she had “known about this case” since Daughter 

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 “trying to stop.” Mother also testified that she had last used 

methamphetamine in January and that she and Father had not used methamphetamine together. 

After Mother testified, the trial court announced that it had heard Father’s “plea for additional 

time” and would recess the proceedings and “resume this final hearing pending the results of”

additional drug tests 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 information from [Father].”
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 tests in April, May, and June

and tested positive for drugs each time.4 Bailey also testified that since the last hearing, Mother 

had been arrested on “active warrants,” including on a drug possession charge. Bailey explained 

that Mother had been arrested following “a call for domestic violence” between Mother 

and Father:

They were arguing in a park that is right across the street from their house, and 

somebody called the cops. So, when the cops arrived, they located [Mother] and 

[Father]. When they saw the cops, they ran towards the house, and the cops were 

able to stop them and arrest her.

Bailey further testified that Daughter was continuing to do “very well” in her current placement 

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 that she be allowed “to work for this child.” Mother also 

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 to try to take the least amount of time they 

give [her].” However, she acknowledged, “I’m going to have to go to the penitentiary, but I 

have to 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 convincing evidence 

that Mother had: (1) knowingly placed or knowingly allowed the child to remain in conditions or 

4 Although Bailey did not provide specific details regarding the results of Father’s drug 

tests, a permanency report submitted to the court stated that Father “tested positive on an oral 

swab on 3/11/2022 for methamphetamine and marijuana,” “test[ed] positive on a hair follicle and 

urine analysis on 4/14/2022,” “tested positive on an oral swab on 5/23/2022 for 

methamphetamine and marijuana” and “tested positive on an oral swab on 6/10/2022 for 

methamphetamine.”
8

surroundings which endanger the physical or emotional well-being of Daughter; (2) engaged in 

conduct or knowingly placed the child with persons who engaged in conduct which endangers 

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 Mother to obtain the return of 

Daughter. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). Regarding Father, the trial court

found that he knowingly placed or knowingly allowed Daughter to remain in conditions or 

surroundings which endanger the physical or emotional well-being of Daughter. See id. 

§ 161.001(b)(1)(D). The trial court also found 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

DISCUSSION

In her sole issue on appeal, Mother asserts that the trial court erred in failing to 

adequately 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 requested, the court shall appoint 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 advised Mother that she had a 

right to appeal its ruling, and Mother informed the trial court that she wanted to appeal it. The 

trial court subsequently appointed Mother appellate counsel. Mother’s court-appointed counsel 

filed a motion to withdraw and an Anders brief concluding that the appeal was frivolous and

without merit. See Anders v. California, 386 U.S. 738, 744 (1967). However, this Court 

concluded that the record contained at least one non-frivolous issue for appeal, specifically, the 

possible denial of Mother’s right to trial counsel, and we abated this appeal and remanded to the 

trial court for the appointment of new counsel to brief that and any other issues that new counsel 

determined to be meritorious. See A.G. v. Texas Dep’t of Fam. & Protective Servs., 

No. 03-22-00502-CV, 2022 WL 10714200, at *1 (Tex. App.—Austin Oct. 19, 2022) (per curiam 

order and mem. op.).
9

appointment.” Tex. Fam. Code § 107.013(a)(1). Moreover, “if a parent is not represented by an 

attorney at the parent’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 parent is indigent and appears in opposition to the 

suit, the right to an attorney ad litem appointed by the court.” Id. § 107.013(a-1). This 

requirement applies “[b]efore commencement of the full adversary hearing,” id. § 262.201(c), 

and “[a]t the status hearing and at each permanency hearing held after the date the court renders 

a temporary order appointing the department as temporary managing conservator of a child,” id. 

§ 263.0061(a); see In re B.C., 592 S.W.3d 133, 137 (Tex. 2019).

In this case, the record reflects that consistent with the above statutory 

requirements, the trial court admonished Mother of her right to counsel at both the May 26, 2021 

full adversary 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 

permanency 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 requested the assistance of 

counsel at any point before or during trial, despite being told on multiple occasions before trial, 

both in person and in writing, that she had a right to counsel and that if she could establish her

indigence, 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 affidavit 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 

determination that the parent is indigent.” Id.; see also 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 ‘parent who claims indigence . . .

must file an affidavit of indigence[.]’”); In re K.L.L.H., No. 06-09-00067-CV, 2010 WL 87043, 

at *5 (Tex. App.—Texarkana Jan. 12, 2010, pet. denied) (mem. op.) (describing parent’s filing of
10

Parental rights are “perhaps the oldest of the fundamental liberty interests” 

protected by the United States Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000). They 

have been characterized as “essential,” “a basic civil right of man,” and “far more precious than 

property rights.” Holick v. Smith, 685 S.W.2d 18, 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, proceedings to terminate parental rights are sometimes

considered “quasi-criminal” 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) (Lehrmann, J., 

concurring) (“Termination of parental rights, the total and irrevocable dissolution of the parentchild relationship, 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 proceedings in certain contexts). For these 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 an unrepresented parent, on the record, if she wants the assistance of counsel

or is willing to forego that right, similar 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 [1st Dist.] 2012, pet. denied). However, that is not what the 

Texas Family Code currently requires, and on this record, we cannot conclude that the trial court 

erred when it complied with the statutory requirements.

We overrule Mother’s sole issue on appeal.

affidavit of indigency as “the act which would trigger the process for mandatory appointment of 

an attorney ad litem”).
11

CONCLUSION

We affirm the trial court’s order of termination.

__________________________________________

Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Affirmed

Filed: December 29, 2022