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In re L.M.B.

Court of Appeals of Texas, Seventh District, Amarillo

September 17, 2019


          On Appeal from the County Court at Law Number 3 Lubbock County, Texas Trial Court No. 2012-501, 599, Honorable John A. Didway, Presiding.

          Before CAMPBELL and PIRTLE and PARKER, JJ.


          James T. Campbell Justice.

         In this parental-rights termination case brought by appellee the Texas Department of Family and Protective Services, appellants the mother and father, who appear pro se by their own intention, filed a notice of appeal after the trial court signed a final order terminating their rights to L.M.B.[1] According to the final order, the mother and father were each properly notified of the final hearing but did not appear. At the mother's request, findings of fact and conclusions of law were filed and the father's motion for new trial was overruled by order of May 23, 2019.[2] We will affirm the final order of the trial court.

         Procedural Background

         Because this case presents the unusual occurrence of parents proceeding pro se against the Department in the appeal of a final order terminating their parental rights, we describe in some detail the procedural background relevant to the issues presented and our disposition.

         In June 2012, the mother and father were divorced by decree of Lubbock County Court at Law Number Three in cause number 2012-501, 599. In November 2017, on the motion of the Office of Attorney General (OAG), the trial court conducted a hearing concerning the father's child support obligation under the decree. It confirmed a child support arrearage of $480.13, ordered the father to repay the arrearage by monthly payments of $25.00, and reduced the father's current child support to $190 monthly.

         One of five assistant attorneys general listed on the order was Kelley Tesch. Beneath the names of the five attorneys appeared the wording "Attorney of Record." The clerk's record also contains a notice of hearing filed in that proceeding on December 13, 2018, which listed Kelley Tesch and six other attorneys with the OAG's Child Support Division. The same wording appeared beneath the names of those attorneys. At some point, Tesch was appointed an associate judge for Lubbock County and handled certain pretrial judicial matters in the Department's termination suit. In the trial court and here, the mother and father complain that Judge Tesch was disqualified from presiding over any portion of the Department's case against them because of her role as an attorney in the OAG's child support case.

         In early 2018, the mother and L.M.B. lived in Ballinger, Runnels County, Texas, while the father lived in Lubbock County. Following a report of endangering conduct by the mother, on April 5, 2018, the 119th District Court of Runnels County rendered an order under Family Code section 262.102, entitled "Order for Protection of a Child in an Emergency and Notice of Hearing." The order named the Department sole managing conservator of L.M.B. Also on April 5, the Department filed its original petition for protection of a child, conservatorship, and termination in the 119th District Court. The April 5 order was extended by an order of April 10. An associate judge of the 119th District Court conducted an adversary hearing on April 17 pursuant to Family Code section 262.201 and on April 23 signed an order appointing the Department L.M.B.'s temporary managing conservator.

         In a motion filed in the 119th District Court on June 18, 2018, the Department requested transfer of its suit against the mother and father from Runnels County to Lubbock County Court at Law Number Three, the court of continuing exclusive jurisdiction.[3] The transfer was granted by order signed the following day and the Department's case was filed in County Court at Law Number Three under cause number 2012-501, 599.

         Initially in the trial court the mother and father each had appointed counsel. According to a docket sheet entry of April 10, 2018, the associate judge of the 119th District Court "reviewed affidavit of indigence and heard evidence of indigence and appointed Ben Clayton" attorney for the mother. The duration of Clayton's appointment is not shown but thereafter Amanda W. Kraynok was appointed attorney for the mother. On October 8, 2018, Kraynok was permitted to withdraw from the representation and Lezlie D. Olibas was appointed attorney for the mother. Olibas was permitted to withdraw by order of October 17. The clerk's record contains a document filed pro se by the mother on October 15, 2018, which provides in part, "There is no Tacit Agreement to allow any other man or woman, acting as attorney, to represent me. Any authority previously authorized by any administrator of the court is hereby null and void. Any appointment of said power of attorney is revoked, canceled and terminated as of this 9 day of October 2018."

         On July 23, 2018, Judge Tesch appointed an attorney for the father under Family Code section 107.013 and by order of September 19, 2018, permitted that attorney to withdraw. A permanency hearing order of the same date records the father "indicated his intent to represent himself in this case." At the February 15, 2019 permanency hearing the mother and father each declined court-appointed counsel.

         Final hearing of the Department's case for termination of parental rights was tried to the bench on April 5, 2019. The Honorable John A. Didway, Judge of the 121st District Court, sitting by assignment after the voluntary recusal of the court's presiding judge, presided. As noted, the mother and father did not appear. Judge Didway signed a final order terminating both parents' parental rights on April 9. The mother and father each signed a timely-filed pro se notice of appeal.

         In a document filed pro se in the trial court on May 7, 2019, the mother declared she was not indigent, could afford court costs, and wished to represent herself. In a July 1 letter to the clerk of this court the father stated, "I did not file an Affidavit of Indigence in the Trial Court and I do not consider myself to be indigent in this Court."

         The mother and father did not make arrangements to pay for preparation of the reporter's record.[4] By letter of May 30, 2019, we directed them to make acceptable payment arrangements by June 10. The letter also reminded the mother and father of their ability to seek a free record if indigent.

         On June 12, a reporter's record was filed consisting of the master index volume, a transcription of the February 15, 2019 permanency hearing, and the exhibits volume from the final hearing. Contemporaneously, the reporter notified the clerk of this court that the mother and father requested preparation only of these portions of the record.

         The mother and father jointly filed a pro se appellant's brief on July 12. After reviewing the brief we notified the mother and father by letter that the appellate record did not appear to support the issues through which they assigned error. Particularly, four of their six issues concerned sufficiency of the evidence supporting aspects of the final order. Yet, a transcription of the final hearing testimony, we further noted, was not included in the reporter's record. On our own motion, we granted the mother and father the option of supplementing the reporter's record by August 1.

         In a motion filed on July 31, the mother and father inter alia stated, "Upon further examination, the Appellants wish to proceed without the transcripts and move to file an amended appeal, narrowing down relevant issues to the true points on appeal." Accompanying the motion was an amended brief. By letter of August 2, we granted leave to file the amended ...

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