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In re J.F.

Court of Appeals of Texas, Seventh District, Amarillo

August 6, 2019


          On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2017-527, 563; Honorable John J. McClendon III, Presiding

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


          PER CURIAM

         Appellant, B.T., appeals the trial court's order terminating her parental rights to her son, J.F.[1] In presenting this appeal, appointed counsel has filed an Anders[2] brief in support of a motion to withdraw. We grant counsel's motion and he is relieved as B.T.'s attorney of record. We abate the appeal and remand the cause to the trial court for appointment of new counsel to file a brief in this court addressing a potentially meritorious issue.


         B.T. suffers from multiple ailments and takes numerous medications. She has been diagnosed with bipolar disorder, anxiety, asthma, migraines, seizures, and polycystic ovarian syndrome (insulin resistance) and has a pituitary tumor. At the time of the final hearing, she described at least ten prescription medications she was taking. At the time of J.F. II's birth, the Texas Department of Family and Protective Services was notified that he tested positive for amphetamines. Two days after his birth, on October 6, 2017, the Department initiated termination proceedings.[3]

         On November 2, 2017, B.T. filed her application for appointment of court-appointed counsel together with an affidavit of indigence. The associate judge signed an order finding that B.T. was indigent and appointed counsel to represent her.[4] On March 12, 2018, B.T. filed a Motion to Substitute Counsel indicating she had retained counsel and no longer wished to be represented by appointed counsel. Citing B.T.'s failure to cooperate, retained counsel moved to withdraw on August 15, 2018.

         A final hearing before an associate judge commenced on September 14, 2018. B.T. appeared pro se and filed a motion for continuance. She announced that she needed a continuance to "get an attorney. I need a court-appointed one, if you can." The Department opposed a continuance. The judge ruled, "I am going to go ahead and deny your motion for continuance." After a discussion on pending approval of a home study related to the child's placement and a dismissal date of October 8, 2018, looming, the judge nevertheless granted a continuance until September 28, 2018.

         At the continuation of the final hearing, B.T. again moved for continuance. She explained that she had made numerous attempts to employ counsel but did not have the resources for fees being quoted to her by several attorneys. She also sought the assistance of Legal Aid and the Texas Tech Law School clinic but was turned down. The judge acknowledged that B.T. had filed an affidavit of indigence and an application for court-appointed counsel. The Department again opposed a continuance and the associate judge again denied the motion for continuance. The judge also ruled, "[y]our request for additional time to get a court-appointed or hired attorney is also denied."

         The final hearing continued with B.T. as the first witness. She was questioned by three attorneys without the assistance of counsel. After the presentation of witnesses and evidence, the trial court again ruled that B.T.'s motion for continuance as well as a request for an extension of the dismissal date were being denied. The ruling continued as follows:

[f]urther, [B.T.] had again applied for a court-appointed attorney. I find that that is her second request for court-appointed attorney, having released her first one, and then had representation by a hired attorney, who has now since withdrawn. I am denying her request for that second court-appointed attorney as untimely. I believe it was the day prior to the final hearing when that application was received.

(Emphasis added).[5]

         The trial court then found by clear and convincing evidence that B.T. had (1) knowingly placed or allowed her child to remain in conditions or surroundings that endangered his physical or emotional well-being, (2) engaged in conduct or knowingly placed her child with persons who engaged in conduct that endangered his physical or emotional well-being, and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O) (West Supp. 2018). The trial court also found that termination of B.T.'s parental rights to J.F. II was in the child's best interest. § 161.001(b)(2) (West Supp. 2018).

         B.T. filed a request for a de novo hearing. Section 201.015(b) of the Family Code requires that a party specify the issues that will be presented to the referring court. B.T. listed the lack of representation at the hearing and explained that she was ...

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