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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-20-00199-CV

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IN THE INTEREST OF O.C.

________________________________________________________________________

On Appeal from the 317th District Court

Jefferson County, Texas

Trial Cause No. C-234,724

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MEMORANDUM OPINION

Mother appeals the termination of her rights to her son, Oscar.1,2 In five issues, 

Mother challenges the termination of her parental rights arguing the evidence is 

legally and factually insufficient to terminate under sections 161.001(b)(1), (2) of 

the Texas Family Code and contends she was denied due process by the trial court’s

failure to admonish her regarding her rights to have an attorney during the pendency 

1 To protect the identity of the minor, we use pseudonyms to refer to the child 

and his Mother. See Tex. R. App. P. 9.8(b)(2).

2 Father signed an Affidavit of Voluntary Relinquishment of Parental Rights 

to the Texas Department of Family and Protective Services. He did not appeal.
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of the termination suit as required under section 107.013 of the Texas Family Code. 

See Tex. Fam. Code Ann. §§ 161.001(b)(1), (2); 107.013. The Department has filed 

a brief wherein the Department agrees that there is reversible error in the failure to 

admonish Mother of her right to counsel and that the case should be remanded to the 

trial court for a new trial. For the reasons explained below, we reverse the trial 

court’s judgment and remand for a new trial. 

Section 107.013(a)(1) mandates the appointment of an attorney ad litem for 

an indigent parent who opposes the termination of the parent-child relationship in a 

suit filed by the Department of Family and Protective Services (the Department). 

See id. § 107.013(a)(1). To trigger the process for mandatory appointment of counsel 

in a termination proceeding, a parent must file an affidavit of indigence pursuant to 

Texas Rule of Civil Procedure 145. See Tex. R. Civ. P. 145(e); In re B.C., 592 

S.W.3d 133, 135-36 (Tex. 2019).3

Additionally, the trial court is required to admonish a parent at the first hearing 

at which the parent appears: (1) of their right to be represented by an attorney; and 

(2) if they are indigent and appearing in opposition to the suit, the right to have an

attorney appointed to represent them in the proceedings. See Tex. Fam. Code Ann. 

3 Although the record shows that Mother failed to file an affidavit of 

indigency, that issue is not dispositive because, as this Court discusses below, the 

trial court failed to properly admonish Mother as required by section 263.0061(a).

See Tex. Fam. Code Ann. § 263.0061(a). See In re B.C., 592 S.W.3d 133, 136–37 

(Tex. 2019) (per curiam).
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§ 107.013(a-1)(1), (2). Further, the trial court must provide an admonishment at the 

status hearing and permanency hearing to a parent unrepresented by counsel of the 

right to representation and, if they are indigent and appear in opposition of the suit, 

of their right to a court-appointed attorney. See id. § 263.0061(a)(1).

Texas Rule of Appellate Procedure 44.1(a)(1) states that the judgment may 

not be reversed unless this Court concludes that the error “probably caused the 

rendition of an improper judgment[.]” Tex. R. App. P. 44.1(a)(1); In re S.R., No. 10-

19-00235-CV, 2019 WL 7374736, at *2 (Tex. App.—Waco Dec. 31, 2019, pet. 

denied) (mem. op). Here again, the Department agrees that the error in this case was 

not harmless and asks this Court to reverse the termination order and remand for a 

new trial.

The record demonstrates that on April 4, 2019, the Department filed an

Original Petition for Protection of a Child, for Conservatorship, and for Termination 

in Suit Affecting the Parent-Child Relationship. Mother was served with the petition 

and appeared pro se at the first hearing in which the Department was granted 

temporary managing conservator of Oscar. The record does not show that the trial 

court admonished Mother of her rights under sections 107.013(a-1)(1), (2) to be 

represented by an attorney in a termination proceeding.4

4 We note that Mother signed a temporary order following this hearing that 

contained the following admonishment, 
4

Another permanency hearing was held on October 1, 2019 in which Mother 

again appeared pro se, and the Department was ordered to remain Oscar’s temporary 

managing conservator. 

On January 16, 2020, a permanency hearing was held, and Mother appeared 

pro se. At this hearing, the trial court declined to modify the previous orders, and the 

Department remained Oscar’s temporary managing conservator. 

Mother did not appear at a permanency hearing on May 14, 2020, in which 

the trial court again ordered that the Department remain Oscar’s temporary 

managing conservator. 

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 1149 PEARL ST., BEAUMONT, TX 77701, 409-835-

8400. 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 DETERMINES YOU ARE INDIGENT AND ELIGIBLE 

FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL 

APPOINT AN ATTORNEY TO REPRESENT YOU. 

As we will address in detail, this admonishment does not satisfy section 

263.0061(a) of the Texas Family Code as “[a]t the status hearing and at each 

permanency hearing after the Department is appointed temporary managing 

conservator, trial courts must inform unrepresented parents about their right to legal 

representation, including the right to court-appointed counsel.” In re B.C., 592 

S.W.3d 133, 137 (Tex. 2019); see also Tex. Fam. Code Ann. § 263.0061. 
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Finally, on August 13, 2020, Mother appeared without counsel at the bench 

trial via Zoom.

5 The record does not show that Mother was advised of her right to 

counsel before trial, but at the trial’s conclusion, the trial court advised her to consult 

an attorney regarding an appeal. The trial court signed an Order of Termination, 

terminating Mother’s parental rights to Oscar under subsections 161.001(b)(1)(D)

(E), and (O) and finding that termination was in Oscar’s best interest. See id. § 

161.001(b)(1)(D), (E), (O), (2). After entry of the judgment terminating her rights, 

mother filed a pro se appeal and argued, among other issues, that she requested trial 

counsel and “[had] the paperwork completed” and that trial court did not consider 

appointing her an attorney.

Mother appeared without counsel at all stages of the proceeding. While 

Mother failed to file the affidavit of indigence, here the Department contended as 

part of its allegations that Mother was not continually employed and failed to 

maintain stable housing. It is not disputed that the trial court failed to admonish 

Mother of her right to counsel each permanency hearing in violation of section 

263.0061(a)(1). See id. § 263.0061(a)(1). Mother was present and unrepresented at 

5 Per section 263.401 of the Texas Family Code, the trial court found that 

“extraordinary circumstances necessitate the subject child(ren) remaining in the 

temporary managing conservatorship of the Department and that continuing the 

appointment of the Department as temporary managing conservator continues to be 

in the best interest of the child[,]” and granted an extension of this case, retaining 

the trial court’s jurisdiction over this case. See Tex. Fam. Code Ann. § 263.401(a), 

(b). 
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several hearings falling within section 263.0061(a)’s ambit without receiving the 

mandatory admonitions, including after the Department expressed its intent to seek 

termination of her parental rights. Due to the lack of any indication that Mother was 

admonished of her rights to counsel, we cannot say that the error was harmless, and 

we conclude reversal is required, and Mother is entitled to a new trial.6 See Tex. R. 

App. P. 44.1(a)(1); In re S.R., 2019 WL 7374736, at *2; see also In re B.C., 592 

S.W.3d at 137 (concluding trial court’s noncompliance with section 263.0061 was 

not harmless error and reversal was proper where indigent parent unrepresented at 

parental-rights-termination trial had parental rights terminated). We sustain 

Mother’s fifth issue.7 We reverse and remand this proceeding for a new trial.8

6 As the Texas Supreme Court explained in In re B.C., the right to counsel is 

essential to helping protect a fundamental right.

Parents face a complex and nuanced family-law system that is challenging to 

navigate without the guidance of counsel. Considering the importance of the 

fundamental rights at issue, the Legislature has adopted important safeguards in 

sections 107.013 and 263.0061 to help ensure parents will not be deprived of their 

parental rights without due process of law. While the trial court cannot force parents 

to retain counsel or follow the procedures required for establishing indigency, the 

statutory framework mandates that courts repeatedly inform unrepresented parents 

about their statutory rights so they will have an adequate opportunity to understand 

and invoke those rights. See In re B.C., 592 S.W.3d at 137.

7 The Department concedes in its brief to the Court that Mother was not 

properly admonished of her rights to counsel during this case.

8 Due to our resolution of this case, we need not address Mother’s remaining 

issues on appeal. See Tex. R. App. P. 47.1.
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REVERSED AND REMANDED.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on February 9, 2021

Opinion Delivered February 11, 2021

Before Golemon, C.J., Kreger, and Horton, JJ.