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In re B.C.

Supreme Court of Texas

December 20, 2019

In the Interest of B.C., a Child

          On Petition for Review from the Court of Appeals for the Thirteenth District of Texas

          PER CURIAM

         The Texas Family Code grants indigent parents the right to appointed counsel in government-initiated suits seeking to terminate parental rights. Tex. Fam. Code § 107.013(a). When a parent claims indigence, an attorney shall be appointed if the trial court determines the parent is indigent, but the court may not hold a hearing to make that determination until the parent has filed an affidavit of indigence in accordance with the rules of civil procedure. Id. § 107.013(d) (citing Tex.R.Civ.P. 145(b)). In this case, the court of appeals erred in holding the trial court was required to conduct a pre-trial inquiry into a parent's indigency status, because she neither claimed indigence nor filed the requisite affidavit until after the trial had concluded. See 579 S.W.3d 432, 437 (Tex. App.-Corpus Christi 2019). We nevertheless affirm the court of appeals' judgment remanding for a new termination trial because the trial court failed to give mandatory statutory admonishments regarding the right to appointed counsel. See Tex. Fam. Code § 263.0061.

         The Department of Family and Protective Services removed B.C. from her mother's home based on allegations that drugs were being used and sold in the home, the home lacked electricity and running water, and domestic violence was ongoing. The trial court promptly held a removal hearing and appointed the Department as B.C.'s temporary managing conservator. Because Mother appeared without counsel at the removal hearing, the trial court informed her that she had the right to legal representation and the right to court-appointed counsel if she was indigent, but she would have to fill out "some forms" before the court could determine her indigency status. See Tex. Fam. Code §§ 107.013(a-1) & (d), 263.0061. Mother appeared without counsel at every subsequent permanency hearing, but she was not further admonished about her statutory right to legal representation. Mother neither claimed indigency nor filed an affidavit of indigence, and the trial court did not appoint counsel to represent her.

         Several months before the mandatory dismissal date, the Department's primary goal of family reunification changed to family or fictive kin conservatorship. But as the dismissal date loomed, and Mother's progress under the family service plan stalled, the Department sought to terminate parental rights. Mother did not appear at either the pretrial hearing or the bench trial six days later, and she remained unrepresented at both.

         After a brief evidentiary hearing, the trial court found grounds to terminate parental rights and that severing the parent-child relationship is in B.C.'s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P), & (b)(2) (involuntary severance of parental rights). At that point, Mother filed an affidavit of indigence and a pro se notice of appeal, prompting the trial court to hold a hearing to determine her indigency status. See id. § 107.013(d). The court found Mother indigent and appointed counsel to represent her on appeal. See id.

         Mother's appeal raised three issues: (1) she was not timely notified about the trial setting; (2) she was denied her statutory right to appointed trial counsel; and (3) the trial court's best-interest finding is not supported by sufficient evidence. The court of appeals rejected the first issue and did not reach the third issue, reversing and remanding to the trial court for a new trial based on issue two. 579 S.W.3d at 436-37. The court held that Mother was entitled to appointed counsel because she had appeared in opposition to the suit by informing the trial court that she "wanted her children back" and "there was sufficient indication in the record that [she] was indigent such that the trial court should have conducted further inquiry into her status." Id. at 437.

         The Department does not dispute Mother's indigency status but asserts that under section 107.013 of the Family Code, she was required to file an affidavit of indigence as a predicate to obtaining court-appointed counsel. Mother contends an affidavit was not necessary to invoke the statutory right to appointed counsel and, in the alternative, the trial court failed to properly inform her about her right to legal representation as required by section 263.0061.

         Section 107.013 grants indigent parents the right to appointed counsel in Department-initiated termination proceedings. Subsection (a) identifies who is entitled to appointed counsel:

In a suit filed by a governmental entity under Subtitle E in which termination of the parent-child relationship or the appointment of a conservator for a child is requested, the court shall appoint an attorney ad litem to represent the interests of:
(1) an indigent parent of the child who responds in opposition to the termination or appointment . . . .

Tex. Fam. Code § 107.013. Subsection (a-1) requires trial courts to admonish unrepresented parents about the right to legal representation:

In a suit described by Subsection (a) . . . the court shall inform [an ...

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