In re C.L.S.

IN RE C.L.S.

NO. 01-11-00439-CV

Court of Appeals For The First District of Texas

Opinion issued October 31, 2012

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Case No. 56309

DISSENTING OPINION

This Court holds that the trial court committed reversible error by failing to admonish a private party of the dangers of waiving his right to counsel before allowing him to appear pro se in this litigation. But the law does not grant the party a right to counsel—only the option of counsel typically available in litigation between two private parties. And the law does not mandate that trial courts adviseprivate parties on the wisdom of their litigation choices in the absence of a right to counsel.

I agree with the Court that when one parent appears without counsel at a trial in which the other parent seeks to terminate parental rights, the best practice is for a trial judge to explain the benefits of counsel and inquire into whether the pro se parent understands the risks of proceeding without counsel. The parent-child relationship gives rise to rights of constitutional proportions, and such rights are worthy of particular judicial sensitivity. But, while I agree that trial courts are wise to make such inquiries, I disagree that the law requires them to do so.¹ 1 would hold instead that when neither a Texas statute nor a constitutional provision mandates the appointment of counsel in private litigation between two parents—particularly when the court appoints an attorney to advise the court on the child's best interests—a trial court is not required to ensure a voluntary and knowing waiver of such representation.

Background

Mother filed this private parental termination proceeding after Father filed a lawsuit seeking custody of their child. At the commencement of the termination proceeding, Mother did not allege abuse upon which criminal charges could bebased as a ground for termination of Father's parental rights. Instead, her original petition stated two termination grounds, both related to Father's failure to financially support the child: (1) Father voluntarily left the child in Mother's possession without providing the child with adequate support and remained away for a period of at least six months and (2) Father failed to support the child in accordance with Father's ability during a one-year period ending within six months of the filing date of Mother's petition. Father, through counsel, answered Mother's petition and filed a cross-action.

The trial court appointed an amicus attorney to protect the child's best interests and ordered each parent to pay one half of the amicus attorney's costs.

Father first appeared without counsel at a status conference during which the trial court notified him that the case was set for trial. Father also represented himself at trial. He testified that he paid his attorney of record $2500 and signed a contract retaining the attorney for trial, but the attorney did not appear. The record does not indicate why Father's attorney of record did not participate in the trial or contain a request to continue the proceedings in order for Father to obtain counsel. The amicus attorney testified that she explained to Father before the trial that "it was imperative that [he] had an attorney come to court[.]" The amicus attorney asked some questions during trial that were intended to allow Father to present his version of the facts.

Mother testified concerning the child's condition and Father's involvement in the child's life. She testified to the following facts: The child, who was five years old at the time of trial, has a congenital heart defect that requires around-the-clock medical care. Mother knew of the heart defect before the child's birth and received training to care for the child's special needs. Father "refused" the training because he was "very uninterested." Mother and Father lived together in an apartment after the child's birth, but Father spent little time with the child. Two months after the child's birth, the child became cyanotic and was rushed to the hospital. Father did not accompany the child to the hospital. A short time later, the child required cardiac surgery. Father was not present at the hospital for six hours. At six months of age, the child suffered three strokes and seizures, leaving the child permanently brain damaged and incapable of communication or ambulation. Mother explained that the child "can't do anything on his own. He's non-responsive." The child endures seizures daily and requires a special feeding schedule. Mother and Father stopped living together seven months after the child's birth. Mother is the child's full-time caretaker. According to her, Father has provided virtually no care for the child since Mother and Father separated, and Father has never received the training necessary to care for the child. The cost of the child's medical care, however, has been taken care of as a result of a largesettlement Mother, Father, and the child received in a lawsuit against the manufacturer of a medication Mother took during her pregnancy.

In the middle of the trial, Mother was granted leave to amend her petition to allege a violation of section 161.001(1)(E) of the Family Code—engaging in conduct which "endangers the physical or emotional well-being of the child." TEX. FAMILY CODE ANN. § 161.001(1)(E) (West Supp. 2012). The trial court entered an order terminating Father's parental rights shortly after the trial concluded. Father retained a new attorney who entered an appearance thirty-four days after the order of termination and who brings this appeal on Father's behalf.

Procedural Protection of the Right to Counsel Is

Mandatory Only When There Is a Right to Counsel

In each of the cases on which the Court relies, the appellant had a statutory or constitutional right to counsel in the action on appeal. When the law grants a right to counsel, certain procedural protections of that right necessarily follow. But there is no statutory or constitutional right to counsel in this case. No procedural protections attach when no right exists. Because there is no right to counsel, the trial court was not required to advise Father of the dangers of waiving such a right.²

A. Father did not have a right to counsel in this proceeding

Both the Texas Legislature and the United States Constitution have endowed certain parties with a right to appointment of legal representation in certain actions involving fundamental rights. But those endowments do not extend to this private litigation between Mother and Father, each of whom had the means to obtain private counsel.

1. No Texas statute confers a right to representation in a private termination proceeding

Cognizant of the fundamental importance of the parent-child relationship, the Texas Legislature has provided for legal representation of certain interests in suits affecting the parent-child relationship. But a non-indigent parent in a private dispute is not one of the parties the Legislature endowed with a statutory right to counsel.

The Legislature has provided for legal representation of a child's interest in both private and State-initiated suits affecting the parent-child relationship. See TEX. FAMILY CODE ANN. §§ 107.012 (West 2008) (mandatory appointment inState-initiated actions), 107.021(a-1) (West 2008) (discretionary appointment in private actions).³ The Legislature has also recognized a right to counsel for indigent parents in government-initiated suits affecting the parent-child relationship.⁴ See TEX. FAMILY CODE ANN. § 107.013(a)(1) (West Supp. 2012). ("In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in opposition to the termination[.]"). But the Legislature has elected not to create a statutory right tocounsel for a non-indigent parent in a private dispute between the parents. Instead, the Legislature has granted trial courts discretion to appoint counsel for parents in private parental-rights disputes. See In re D.L.S., No. 02-10-00366-CV, 2011 WL 2989830, at *2 (Tex. App—Fort Worth July 21, 2011, no pet.) (mem. op.) (observing that section 107.021(a) of Family Code provides for discretionary appointments in private termination suits); see also In re G.J.P., 314 S.W.3d 217, 222 (Tex. App.—Texarkana 2010, pet. denied) (same); In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied) (same); In re A.S.L., No. 02-09-00452-CV, 2011 WL 2119645, at *2 n.6 (Tex. App.—Fort Worth May 26, 2011, no pet.) (mem. op.) (same).⁵ Father did not request that the trial court appointhim counsel and does not argue on appeal that the trial court abused its discretion in failing to appoint him counsel.⁶

Nor can section 107.013's right of counsel be extended to this dispute. The statute's plain language limits its application to suits "filed by a governmental entity"⁷ and vests the right it recognizes only in "an indigent parent." TEX. FAMILYCODE ANN. § 107.013(a)(1). This suit was not filed by a governmental entity and Father was not indigent.⁸ Consequently, Texas statutes do not confer on Father a right to counsel. See In re J.C., 250 S.W.3d 486, 489 (Tex. App—Fort Worth 2008, pet. denied) (holding that mother possessed no mandatory statutory right to appointed counsel under section 107.013(a)(1) when her parental rights were terminated pursuant to private termination suit brought by foster parents because "no statutory right exists to appointed counsel in a private termination suit"), cert. denied sub nom., Rhine v. Deaton, 130 S. Ct. 1281 (2010).

2. Father has not established a right to counsel under the Sixth Amendment

The Court relies heavily on Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). I agree with the Court that, if Father had a constitutional right to legal representation in...