T. D. v. Tex. Dep't of Fam. & Protective Serv.

683 S.W.3d 901

T. D., Appellant

v.TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

NO. 03-23-00469-CV

Court of Appeals of Texas, Austin.

Filed: January 26, 2024

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY, NO. C2022-1912B, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING

Terry "Ty" Wesley Baker, Baker Law Office, P.O. Box 33, Geronimo, TX 78115, for appellant.

Jennifer A. Tharp, Comal Criminal District Attorney, 199 Main Plaza, Suite 2007, New Braunfels, TX 78130, Leslie Capace, Texas Department of Family and Protective Services, P.O. Box 149030, Austin, TX 78714, for appellee.

Before Chief Justice Byrne, Justices Kelly and Theofanis

OPINION

Chari L. Kelly, Justice

T.D. (Mother) appeals the trial court’s Final Order of Termination, rendered after a bench trial, terminating her parental rights to her daughters M.E.D. (Older Daughter) and N.A.D.M. (Younger Daughter).¹ In five appellate issues, some with discrete subparts, Mother maintains that (1) the trial court’s noncompliance with statutory provisions and its conduct of the trial on the merits deprived her of due process; (2) she was not given effective notice of the full adversary hearing or of the trial; (3) the evidence was insufficient to support termination under Paragraph (O), see Tex. Fam. Code § 161.001(b)(1)(O); (4) the evidence was insufficient to support termination under Paragraph (E), see id. § 161.001(b)(1)(E); and (5) the trial court should not have appointed the Department of Family and Protective Services as the children’s managing conservator. We affirm.

BACKGROUND

Older Daughter was 12 years old and Younger Daughter 10 at the time of trial. The family had been involved with the Department in the past, and this time, Department involvement began with a report of neglectful supervision of the children. The family was found living in a warehouse without running water or working heat or air conditioning and with only a generator for electricity. Mother tested positive for methamphetamine, and her husband—the children’s father—Admitted that he had been using methamphetamine. The children looked underfed and had not been in school for some time. The Department placed the children with a licensed foster placement, who now wants to adopt the children. The children are excited at the prospect of living with the foster placement permanently.

The Department prepared Family Service Plans for both Mother and the children’s father and asked each parent to comply with their Plant’s requests if the parents wished the children to be returned to them. Mother’s Plan required her to submit to random drug-testing. The trial court later made the parents’ Plans orders of the court. Both parents refused outright to participate in their Plans, including refusing all requested drug tests until the trial court said that it would have the parents arrested if they did not test. The parents then took that one drug test, and it came back positive for each parent for methamphetamine. The Department filed this suit for termination of Mother’s and the father’s parental rights to the children.

As the suit progressed, the trial court appointed an attorney to represent Mother, but Mother later asked the court to discharge that attorney and for permission to represent herself in the suit or for the children’s father, who is not a lawyer, to represent her. The court told Mother that the father could not represent her.

That condition—Mother’s self-representation—continued through the trial on the merits, and Mother did not request the help of an attorney. Mother and the father showed up to the trial late but were allowed to participate once they arrived. After trial, the trial court signed its Final Order of Termination, ruling that both parents’ rights be terminated and that termination of Mother’s rights was properly based on statutory predicate grounds Paragraph (E) and Paragraph (O). Mother now appeals and is represented by appointed appellate counsel.

DISCUSSION

I. Mother’s due-process complaints are either unmeritorious or unpreserved.

In her first issue, Mother maintains that the trial court denied her due process. She argues that she was denied due process because of two sets of acts or omissions by the court: (1) its failure to comply with Family Code sections 107.013 and 263.0061(a) and (2) its conduct of the trial on the merits.

A. Mother has not shown that the trial court was noncompliant with Sections 107.013 and 263.0061 (a).

[1] Section 107.013 deals with the right to counsel, providing for appointment of counsel for indigent parents under certain circumstances. See Tex. Fam. Code § 107.013(a), (d), (e). It begins, "In a suit filed by a governmental entity under Subtitle E 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." Id. § 107.013(a)(1). It continues/ addressing necessary procedures for appointing an attorney:

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.

Id. § 107.013(d).

Section 261.0061(a) deals with the parent’s right to notice of the right to counsel and to notice of the right to appointed counsel in certain circumstances. The statute provides:

At the status hearing under Subchapter C and at each permanency hearing under Subchapter D held after the date the court renders a temporary order appointing the department as temporary managing conservator of a child, the court shall inform each parent not represented by an attorney of:

(1) the right to be represented by an attorney; and

(2) if a parent is indigent and appears in opposition to the suit, the right to a court-appointed attorney

We next recount the relevant portions of the record to determine whether the trial court complied with these statutory directives.

After the Department filed this suit, soon after Mother was served with citation, the trial court ordered appointment of an attorney to represent Mother but in the same order "defer[red] its findings as to whether [Mother] is indigent, with the right to a court appointed attorney." Two months later, and while Mother was still represented by the appointed attorney, the court signed a Temporary Order Following Adversary Hearing that both (a) found Mother to be indigent and (b) informed Mother of her right to an appointed attorney conditioned both on "sign[ing] an affidavit of indigence" and potentially on the court’s "hear[ing] evidence to determine if [Mother is] indigent." (Formatting altered.) About three months after that order, the court held an initial permanency hearing, and both Mother and her appointed attorney appeared at the hearing. The court did not notify Mother during the hearing that Mother was entitled to appointed counsel. Mother told the court that she did not want the attorney to represent her anymore and that she wanted to represent herself or the children’s father to represent her. The court told Mother that the father, who is not a lawyer, could not represent her. Soon after the hearing, the court signed an Initial Permanency Hearing Order Before Final Order that discharged Mother’s attorney from the representation, There is no reporter’s record for any hearings occurring between this initial permanency hearing and trial, so we presume that the trial court did not violate Mother’s rights at any such hearings. At trial, the proceedings began and continued for "almost 30 minutes," according to the trial court, before Mother and the father appeared. After they appeared, the trial continued with more witness testimony, and after trial, the court rendered its judgment terminating Mother’s parental rights to Older Daughter and Younger Daughter. The court did not notify Mother during the trial that Mother was entitled to appointed counsel. There is no affidavit of indigence by Mother in the record, and at no point after Mother’s appointed attorney was discharged did Mother request from the court the assistance of an attorney.

Based on this record, the trial court did not fail to comply with either Section 107.013 or Section 261.0061(a). See Tex. Fam. Code §§ 107.013, 261.0061(a); In re B.C., 592 S.W.3d 133, 134, 136–37 (Tex. 2019) (per curiam); A.G. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00502-CV, 2022 WL 17982121, at *5 n.6 (Tex. App.—Austin Dec. 29, 2022, no pet.) (mem. op.); In re B.C., No. 02-22-00256-CV, 2022 WL 17172338, at *5 (Tex. App.— Fort Worth Nov. 23, 2022, pet. denied) (mem. op.); In re S.C., No. 09-21-00325-CV, 2022 WL 1037912, at *15 (Tex. App.— Beaumont Apr. 7, 2022, no pet.) (mem. op.); see also In re K.S.L., 538 S.W.3d 107, 112 & n.16 (Tex. 2017) ("[D]ue process d[oes] not require the appointment of counsel in every parental-termination proceeding." (citing Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981))); B.L.M. v. J.H.M., No. 03-14-00050-CV, 2014 WL 3562559, at *11 & n.8 (Tex. App.—Austin July 17, 2014, pet. denied) (mem. op.) (contrasting status hearings with "the termination trial"). Consistent with the above statutory requirements, the trial court appointed Mother counsel who represented her until Mother advised the trial court that she no longer wanted counsel to represent her. After the trial court allowed her attorney to withdraw based on her request, Mother never requested counsel again. While Mother was not admonished of her right to counsel at her trial, at that point in the case, the court was not required to do so. See Tex. Fam. Code § 263.0061(a); A.G., 2022 WL 17982121, at *5 (stating that "better practice"...