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In re J.F.

Court of Appeals of Texas, Seventh District, Amarillo

November 6, 2019

IN THE INTEREST OF J.F. II, A CHILD

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

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

          OPINION

          Patrick A. Pirtle Justice.

         Appellant, B.T., presents two issues challenging the trial court's order terminating her parental rights to her son, J.F. II.[1] First, she maintains the associate judge erred when she did not appoint counsel to represent her and erred again by allowing retained counsel to withdraw a week prior to commencement of the trial on the merits in violation of Rule 10 of the Texas Rules of Civil Procedure.[2] By her second issue, B.T. alleges that failure to appoint counsel for the trial on the merits resulted in due process violations that were not cured by the appointment of counsel for the de novo hearing. We reverse and remand.

         Background

         B.T. has a history of methamphetamine use. She suffers from multiple ailments and takes numerous medications. She has been diagnosed with bipolar disorder, anxiety, asthma, migraines, seizures, polycystic ovarian syndrome (insulin resistance) and has a pituitary tumor. During her testimony, B.T. described at least ten medications that she had been prescribed for her ailments.

         When J.F. II was born in October 2017, the Texas Department of Family and Protective Services was notified that he tested positive for amphetamines. Two days after his birth, the Department filed its petition for his protection, as well as for conservatorship and for termination of B.T.'s parental rights.

         On November 1, 2017, B.T. filed her Application for Appointment of Attorney & Affidavit of Indigence. That same day, the trial court (a former associate judge) signed an order finding that B.T. was indigent and appointed counsel to represent her. On March 12, 2018, B.T. chose to retain a family lawyer and filed a Motion to Substitute Counsel. Citing B.T.'s failure to cooperate, on August 15, 2018, retained counsel moved to withdraw.

         No order appears in the clerk's record granting the motion to withdraw. At the commencement of the trial on the merits on September 14, 2018, B.T. requested a court-appointed attorney and moved for a continuance. She announced that she needed a continuance to "get an attorney. I need a court-appointed one, if you can." The trial court indicated there had been a hearing on retained counsel's motion to withdraw just a week earlier on September 7, 2018, at which B.T. was not present. The trial court then asked B.T. if she would "have been asking the Court to release [retained counsel] or would [she] have been asking the Court to keep him on as [her] attorney?" She answered, "[r]elease."

         The trial continued with the Department and attorney ad litem for the child both opposing a continuance based on the child's need for permanence. B.T.'s verbal motion for continuance as well as her request for court-appointed counsel were denied. She proceeded pro se at the trial on the merits.

         Before the presentation of testimony, the parties discussed with the trial court a pending approval of a home study related to the child's foster placement with a relative in Oklahoma. With a dismissal date of October 8, 2018 looming, the trial court granted a recess until September 28, 2018, to resolve the child's placement.

         When the trial resumed on September 28th, the Department announced, "present and ready to proceed . . . ." B.T. again moved for a continuance and was advised by the trial court to announce her name "but state not ready," and B.T. complied. She explained that she had attempted to retain counsel but did not have the financial 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 denied assistance. The day before the trial had resumed, B.T. again filed paperwork establishing her indigence as well as requesting the appointment of counsel. The trial court acknowledged the filing but deferred ruling on the request for counsel. The Department again opposed a continuance and eventually, the trial court again denied B.T.'s motion for continuance. The court also ruled, "[y]our request for additional time to get a court-appointed or hired attorney is also denied."

         The trial continued with B.T. as the first witness. Without any legal representation, she answered questions from three attorneys. After the presentation of witnesses and evidence, the trial court again ruled that B.T.'s motion for continuance as well as her request for an extension of the dismissal date were 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).[3]

         After another recess, the last day of trial resumed on October 19, 2018. B.T. was not present. According to the record, she was on her way to the trial when she passed out and was taken to the emergency room by a friend. B.T. sent her friend to the proceedings to advise the trial court that she was hospitalized and unable to attend. Without counsel or an advocate to represent B.T., the trial court announced, "[w]e are going to go on without her."

         The trial continued with the caseworker and two other witnesses testifying for the Department. The foster mother also testified telephonically. Their testimonies were not subjected to cross-examination by B.T. or an advocate for B.T.

         Based on the Department's case, the trial court found clear and convincing evidence to support termination of B.T.'s parental rights for (1) knowingly placing or allowing her child to remain in conditions or surroundings that endangered his physical or emotional well-being, (2) engaging in conduct or knowingly placing her child with persons who engaged in conduct that endangered his physical or emotional well-being, and (3) failing 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), (O) (West Supp. 2019). The trial court also found that termination of B.T.'s parental rights to J.F. II was in his best interest. § 161.001(b)(2). Finally, the trial court found that B.T. failed to provide by a preponderance ...


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