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In re A.F.

Court of Appeals of Texas, Fifth District, Dallas

September 18, 2017

IN THE INTEREST OF A.F. AND C.F., CHILDREN

         On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. 17-132-W

          Before Justices Lang, Myers, and Stoddart

          MEMORANDUM OPINION

          DOUGLAS S. LANG, JUSTICE

         Appellant C.G.F. ("Father") appeals the trial court's order terminating his parental rights respecting two of his children, A.F. and C.F. ("the children").[1] In his sole issue on appeal, Father contends he was denied effective assistance of counsel.

         We decide Father's issue in his favor. We reverse the portion of the trial court's order terminating Father's parental rights and remand this case to the trial court for a new trial respecting termination of those rights. The trial court's order is otherwise affirmed.

         I. FACTUAL AND PROCEDURAL CONTEXT

         On February 16, 2017, appellee the Texas Department of Family and Protective Services ("the Department") filed an original petition for protection and conservatorship of the children and termination of Father's parental rights.[2] The grounds alleged for termination of Father's parental rights included, in part, that Father had "knowingly placed or knowingly allowed the child[ren] to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[ren]" and/or "engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endangers the physical or emotional well-being of the child[ren]." See Tex. Fam. Code Ann. § 161.001(b)(1)(D)-(E) (West Supp. 2016). Also, the Department alleged Father's parental rights should be terminated pursuant to section 161.003 of the family code because Father "has a mental or emotional illness or a mental deficiency that renders [him] unable to provide for the physical, emotional, and mental needs of the child . . ., despite at least six months of reasonable efforts to return the child the [sic] parent." See id. § 161.003. The request for conservatorship was based in part on family code sections 153.131 and 263.404. See id. §§ 153.131, 263.404. Further, the petition stated in part (1) "[i]f a parent responds in opposition to this suit . . . [and] the Court determines that the parent is indigent, the appointment of an attorney ad litem to represent the interests of that parent is required by § 107.013, Texas Family Code, " and (2) "[i]f termination of parental rights is sought due to the inability of a parent to provide for the physical, emotional, and mental needs of the children due to mental or emotional illness or deficiency, the appointment of an attorney ad litem to represent the parent is required by § 161.003(b), Texas Family Code." See id. §§ 107.013, 161.003(b).

         The trial court signed a February 17, 2017 "Ex Parte Order for Emergency Care and Temporary Custody" in which it appointed the Department temporary managing conservator of the children "until a hearing can be held" and stated in part, "If the court determines you are indigent and eligible for appointment of an attorney, the court will appoint an attorney to represent you." Also, in a separate order on that same date, the trial court found Father indigent and appointed an attorney to "represent" him. Specifically, that order directed Father's court-appointed attorney as follows:

Pursuant to Texas Family Code you are hereby appointed to represent the parent of the child(ren) who is indigent.
You are hereby ORDERED to make contact with your client within twenty-four hours from today to complete the attached indigence form and shall file the completed form along with responsive pleadings with the court within seventy-two hours from today.
Such appointment continues until released by the Court. Such appointment concludes upon entry of a final order. The next hearing is scheduled for 3/2/17 . . . .

         Father did not attend the March 2, 2017 hearing. At the start of that hearing, Father's counsel, appointed pursuant to the above order, identified himself on the record and stated he was "representing the respondent father." Then, the following exchange occurred between the trial court and Father's court-appointed attorney:

THE COURT: Have you had contact with your client?
[COUNSEL]: I have had phone contact with him, Judge. It was difficult to communicate. Didn't show up the first time. Second time, he called. I had a conversation. Failed to show at that time. Both occasions I told him about today's settings and tried to communicate with him. It was a little ...

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