Court of Appeals of Texas, Seventh District, Amarillo
IN THE INTEREST OF J.F. II, A CHILD
Appeal from the 137th District Court Lubbock County, Texas,
Trial Court No. 2017-527, 563; Honorable John J. McClendon
QUINN, C.J., and PIRTLE and PARKER, JJ.
Patrick A. Pirtle Justice.
B.T., presents two issues challenging the trial court's
order terminating her parental rights to her son, J.F.
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. 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.
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.
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
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.
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,
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.
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.
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
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
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."
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
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 ...