Petition for Review from the Court of Appeals for the
Thirteenth District of Texas
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 Â§ 263.0061.
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.
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.
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.
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.
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.
107.013 grants indigent parents the right to appointed
counsel in Department-initiated termination proceedings.
Subsection (a) identifies who is entitled to appointed
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
(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 ...