When termination of parental rights is sought by TDFPS, the Texas Family Code requires the trial court to appoint counsel for an indigent parent who opposes the termination. TEX. FAM. CODE ANN. § 107.013(a)(1) (West Supp. 2016); In re A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *6 (Tex. App.—Texarkana Jan. 10, 2006, no pet.) (mem. op.). This statutory right to counsel includes the right to effective counsel.

This Court has previously noted that "there is no authority that such a defense could be properly raised in a proceeding of this nature" and declined to recognize such a defense. In re A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *6 (Tex. App.—Texarkana Jan. 10, 2006, no pet.) (mem. op.). The Beaumont Court of Appeals, agreeing with authorities from other jurisdictions, has also declined to recognize an ADA defense.

See In re S.G.S., 130 S.W.3d 223, 229-30 (Tex. App.—Beaumont 2004, no pet.); cf. In re C.L., 2014 WL 5037982, at *3 (describing split among Texas courts of appeals and stating "[o]ur supreme court has not addressed the issue"); In re A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *5-*6 (Tex. App.—Texarkana Jan. 10, 2006, no pet.) (mem. op.)

Had the trial court tried appellant's case separately from C.S.'s case, the fact that C.S. had been convicted of capital murder would have been relevant to the issues before the jury and C.S. would have been a witness. See In re A.M.M., No. 06-05-00039-CV, 2006 WL 42229, *7 (Tex. App.-Texarkana Jan. 10, 2006, no pet.) (mem. op.) (Although divorcing spouses were antagonists, separate termination trials were unnecessary absent a showing of a particularly unfair prejudicial attitude or testimony that would have been inadmissible in a separate trial.). Appellant might have benefitted from a separate trial, since he would have avoided C.S.'s presence in the courtroom throughout the trial, which was a constant reminder to the jury of her incarceration.