In re J.C.

1

IN THE INTEREST OF J.C., A CHILD

No. 06-22-00042-CV

Court of Appeals of Texas, Sixth District, Texarkana

March 2, 2023

Date Submitted: February 7, 2023

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 21-0471

Before Stevens, C.J., van Cleef and Rambin, JJ.

MEMORANDUM OPINION

Scott E. Stevens, Chief Justice

After Mother delivered J.C., both she and J.C. tested positive for cocaine and Mother admitted that she used cocaine throughout her pregnancy, which resulted in J.C. being removed from Mother's care. On the petition of the Texas Department of Family and Protective Services, the trial court terminated Mother's parental rights to J.C.^[1] based on statutory grounds E, N, O, and P and its finding that termination was in the best interests of the child.^[2] See Tex. Fam. Code Ann § 161.001(b)(1)(E), (N), (O), (P), (b)(2). Mother appeals the termination of her parental rights and asserts that her right to due process was violated (1) when the trial court discharged her court-appointed counsel four months before trial and appointed a different counsel three days before trial and (2) when the court required her to sign a document acknowledging certain conditions related to the appointment of her second counsel. She also claims that she was denied the effective assistance of counsel.^[3] We will affirm the trial court's judgment.

I. Procedural Background

On May 12, 2021, the Department filed its original petition for protection of J.C., for conservatorship, and for termination of Mother's parental rights. On that same date, the trial court found that Section 161.003(b) of the Texas Family Code required the appointment of an attorney ad litem for Mother and appointed Tim Cariker as her attorney. See Tex Fam. Code Ann. § 161.003(b). According to the record, Cariker appeared on behalf of Mother at the adversary hearing on May 18, 2021, at a status hearing on July 29, 2021, and at the initial permanency hearing on November 3, 2021.^[4] Mother did not appear at those hearings, but she attended the family group conference on June 8, 2021, and signed her family service plan on July 7, 2021.

For the first several months, Mother was cooperative with the Department and attended her scheduled visits with J.C., but she did not work any services required under her service plan. From June through September 2021, Mother tested positive for cocaine five times. In October, November, and December 2021, Mother failed to complete drug testing requested by the Department. Also, in November and December 2021, Mother missed four scheduled visits with J.C.

At the final permanency hearing on January 27, 2022, the trial court sua sponte discharged Mother's appointed counsel and found that Mother had not participated in the case so that the appointment was no longer necessary.^[5] Neither Mother nor her appointed counsel, Cariker, attended that hearing.^[6] The record does not reflect that the trial court or anyone else served either Mother or her appointed counsel with the order discharging her appointed counsel.

On May 4, 2022, Mother filed an affidavit of inability to pay attorney fees. James Terry was appointed to be her counsel on May 9, 2021. Apparently in conjunction with her affidavit, Mother executed a document titled "Acknowledgment of Conditions for Appointment of Attorney for Indigent Parent" that purported to give Mother's consent to the imposition of certain sanctions if she did not attend hearings. Terry received the file on the afternoon of May 10, and the final hearing was held on May 12. After a one-day hearing, the trial court terminated Mother's parental rights.

II. Mother Has Not Shown that Her Due Process Rights Were Violated when the Trial Court Discharged Her First Appointed Counsel

In her first issue, Mother asserts that the trial court violated her right to due process when it discharged her first appointed counsel and did not appoint her another attorney until three days before the trial. Mother argues that, because she was indigent and appeared in opposition to the termination suit, she was entitled to appointed counsel. She also argues that, once appointed, counsel is allowed to withdraw only for good cause and with appropriate terms and conditions, citing In re P.M., 520 S.W.3d 24 (Tex. 2016). Mother argues that a trial court's dissatisfaction with a parent's participation in the case is not good cause.^[7]

A. An Indigent Parent's Right to an Attorney

In a suit filed by a governmental entity that seeks the termination of the parent-child relationship, Section 107.013 of the Texas Family Code requires the trial court to "appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in opposition to the termination." Tex. Fam. Code Ann. § 107.013(a)(1). Subsection (d) sets forth the process for an indigent parent to invoke this right to appointed counsel:

The court shall require a parent who claims indigence under Subsection (a) to file an affidavit of indigence in accordance with Rule 145(b) of the Texas Rules of Civil Procedure before the court may conduct a hearing to determine the parent's indigence under this section. . . . If the court determines the parent is indigent, the court shall appoint an attorney ad litem to represent the parent.

Tex. Fam. Code Ann. § 107.013(d). The Texas Supreme Court has determined that the appointment of an attorney for an indigent parent is only required "when an affidavit of indigence has actually been filed and the trial court has determined the parent is truly indigent." In re B.C., 592 S.W.3d 133, 136 (Tex. 2019) (per curiam); see Tex. Fam. Code Ann. § 107.013(d).

When a trial court determines that a parent is indigent under Section 107.013, she "is presumed to remain indigent for the duration of the suit" unless the court reconsiders its determination "on the motion of the parent, the attorney ad litem for the parent, or the attorney representing the governmental entity, [and] determines that the parent is no longer indigent due to a material and substantial change in the parent's financial circumstances." Tex. Fam. Code Ann. § 107.013(e). Further, an attorney ad litem for an indigent parent appointed under Section 107.013 continues to serve as the parent's attorney for the duration of the case, unless the attorney is relieved of his duties or replaced by another attorney after the trial court finds good cause rendered on the record. Tex. Fam. Code Ann. § 107.016(2) (Supp.). A trial court's reconsideration of its indigency determination on the motion of a party has been found to constitute good cause for relieving appointed counsel of his duties. In re G.S., No. 14-14-00477-CV, 2014 WL 4699480, at *20-21 (Tex. App.-Houston [14th Dist.] Sept. 23, 2014, no pet.) (mem. op.). In addition, there may be other grounds that constitute good cause for relieving appointed counsel of his duties to an indigent parent. See, e.g., B.B. v. Tex. Dep't of Fam. & Protective Servs., No. 03-15-00082-CV, 2015 WL 2183581, at *5 (Tex. App.-Austin May 5, 2015, no pet.) (mem. op.) (finding good cause to allow appointed counsel to withdraw when a parent no longer wanted to be represented by that counsel, parent complained that counsel failed to follow her instructions, parent was not willing to follow counsel's advice, and parent told trial court that she wanted to represent herself or for her private attorney to do so). Nevertheless, because Texas has granted indigent parents the right to counsel, "the State must administer that right consistent with the Due Process clause." In re S.K.A., 236 S.W.3d 875, 891 n.13 (Tex. App.-Texarkana 2007, pet. denied) (quoting In re A.H.L., 214 S.W.3d 45, 51 (Tex. App.-El Paso 2006, pet. denied)); see In re B.B., 2015 WL 2183581, at *5 (allowing appointed counsel to withdraw consistent with due process when trial court warned parent against proceeding pro se and ordered appointed counsel to remain at trial as advisory counsel).

B. Analysis

As noted above, Mother argues that, because she was indigent and responded in opposition to the termination, the trial court denied her right to due process by discharging her first appointed counsel. However, a parent's right to appointed counsel based on indigency does not become mandatory until she files an affidavit of indigence and she is determined to be indigent by the trial court. In re B.C., 592 S.W.3d at 136. Had Mother filed her affidavit of indigence at the beginning of the case, and had her first attorney been appointed based on the trial court's determination that she was indigent, then Mother's due process rights-based on indigency-arguably would have been violated.^[8] But Mother did not file her affidavit of indigence until May 4, 2021, and she was not determined to be indigent until May 9, 2021, over three months after her first appointed counsel was discharged from his representation. For that reason, Mother's right to appointed counsel based on indigency, and any associated due process rights, had not accrued at the time her first appointed counsel was discharged.^[9] We, therefore, find that Mother has not shown that her due process rights were violated when the trial court discharged her first appointed counsel. We overrule this issue.

III. Mother Has Not Shown that Her Trial Counsel Rendered Ineffective Assistance

Mother also complains that her trial counsel rendered ineffective assistance. Section 107.103 of the Texas Family Code "afford[s] all parents appearing in opposition to state-initiated parental-rights termination suits the right to effective counsel regardless of whether counsel is appointed or retained." In re D.T., 625 S.W.3d 62, 71 (Tex. 2021). "Ineffective-assistance-of-counsel claims in ...