Opinion
01-24-00106-CV
07-12-2024
In the Interest of L.S. and O.S., Children
Trial court: 314th District Court of Harris County, Trial court case number: 2023-00153J.
Panel consists of Hightower, Rivas-Molloy, and Farris Justices.
ORDER OF ABATEMENT
April L. Farris, Judge.
Appellant T.S. ("Mother") has three minor children: L.S., O.S., and A.S. In the abovecaptioned case, the Department of Family and Protective Services ("DFPS") sought managing conservatorship over the children or, alternatively, termination of Mother's parental rights to the children. During the pendency of the underlying proceeding, the trial court found that Mother was indigent and appointed an attorney ad litem to represent her.
At the rendition hearing on January 8, 2024, the trial court found that appointment of Mother as L.S. and O.S.'s managing or possessory conservator would not be the in the children's best interest, but the court did not terminate Mother's parental rights to L.S. or O.S. Instead, the court appointed DFPS as L.S. and O.S.'s managing conservator and limited Mother's visitation with the children. With respect to A.S., the court terminated Mother's parental rights based on several statutory predicate grounds. See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O). Upon DFPS's request, the court orally severed the claims involving A.S. into a separate cause number.
Also at the rendition hearing, Mother's appointed trial counsel represented that he had filed a "motion to substitute counsel and allow Respondent Mother to proceed pro se." Counsel represented that the court had previously denied a motion to withdraw filed by counsel "due to the fact that [counsel] was the fourth lawyer in the series of the attorneys for the mother." Counsel further represented that after trial concluded, Mother "sent [him] an email saying she wanted [him] to remove [himself] from the case immediately." Counsel informed the court that he explained to Mother "that the Court's not going to appoint her another lawyer and that means pro se and we've been discussing this for quite some time." Counsel then stated, "So I filed this motion to substitute to allow the mother to proceed pro se."
Although this filing is referenced in documents in the appellate record-such as expense claims filed by attorneys involved in the case and the trial court's docket sheet-the motion itself is not included in the appellate record. Any written order on this motion signed by the trial court is also not included in the record.
This motion to withdraw is also referenced in documents in the appellate record but does not itself appear in the record.
The trial court replied, "So that motion is granted." The court then asked if Mother had indicated whether she intended to appeal. Her counsel responded that Mother "has not mentioned that," although he stated that he informed Mother that if he was removed as her attorney, "she would have to consider should she want to go forward." The court responded: "Should Mother want to appeal this case, she would have to either notify the Court so the Court can appoint an appellate attorney for her, or she could always proceed pro se in representing herself in the appeal, but the Court will wait for the mother to notify the Court as to what her intentions are."
On January 29, 2024, the trial court signed a final decree relating to the conservatorship of L.S. and O.S ("the conservatorship decree"). On February 1, 2024, the court signed an order severing the claims involving A.S. into a separate cause number. On February 12, 2024, the court signed a final decree terminating Mother's parental rights to A.S. ("the termination decree").
The trial court made the same rulings with respect to the children's father, J.S. ("Father"). The trial court granted the motion to withdraw filed by Father's appointed trial counsel, and the court appointed appellate counsel for Father. Father's appointed appellate counsel filed a notice of appeal from the conservatorship decree on February 8, 2024. Father has filed a brief on the merits in this appeal, and DFPS has filed a brief in response.
Mother filed a pro se notice of appeal of the conservatorship decree in the original cause number on February 17, 2024. In her notice of appeal, Mother stated that "as of the date of this filing, [she] has not been appointed representation in her appeal of the above styled and numbered matter." Mother also stated that she was "presumed indigent and may proceed without paying costs under Texas Rule of Appellate Procedure 20.1."
The appellate record contains no indication that appellate counsel has been appointed for Mother. Mother has not filed any documents in this Court. Notices sent by this Court to Mother at the physical address and email address she provided in her notice of appeal-including a notice that Mother had not timely filed a brief and failure to adequately respond could result in her appeal being dismissed for want of prosecution-have been returned as undeliverable.
In a suit filed by a governmental entity such as DFPS in which termination of the parentchild relationship or the appointment of a conservator for a child 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 or appointment." TEX. FAM. CODE § 107.013(a)(1); In re B.C., 592 S.W.3d 133, 134 (Tex. 2019) (per curiam) ("The Texas Family Code grants indigent parents the right to appointed counsel in government-initiated suits seeking to terminate parental rights."). "A parent who the court has determined is indigent for purposes of this section is presumed to remain indigent for the duration of the suit and any subsequent appeal unless the court . . . determines that the parent is no longer indigent due to a material and substantial change in the parent's financial circumstances." TEX. FAM. CODE § 107.013(e). The right to counsel under section 107.013(a)(1) continues through "the exhaustion of appeals," including proceedings in the Texas Supreme Court. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (holding that appointed counsel should be permitted to withdraw only for good cause or if appeal is frivolous after following provisions of Anders v. California).
This is a suit filed by DFPS in which termination of the parent-child relationship or appointment of a conservator for a child was requested. The trial court found that Mother was indigent and appointed an attorney ad litem to represent her. See TEX. FAM. CODE § 107.013(a)(1). Mother is presumed to remain indigent "for the duration of the suit and any subsequent appeal." See id. § 107.013(e). There is no indication in the appellate record that the court has determined that Mother is "no longer indigent due to a material and substantial change in [her] financial circumstances." Id.
Mother is therefore entitled to appointed appellate counsel. Mother indicated her desire for appointed counsel in her pro se notice of appeal, in which she stated that "as of the date of this filing, [she] has not been appointed representation in her appeal of the above styled and numbered matter."
We abate this appeal and remand the case to the trial court with instructions to appoint counsel to represent Mother on appeal and to have a supplemental clerk's record containing that appointment filed in this appeal with the Clerk of this Court no later than 7 days from the date of this order. See TEX. FAM. CODE § 107.013(a)(1), (e); In re P.M., 520 S.W.3d at 25, 27.
Because this appeal involves the termination of the parent-child relationship, the Court is required to bring this appeal to final disposition within 180 days of February 8, 2024-the date this proceeding began when Father filed his notice of appeal-so far as reasonably possible. See TEX. R. JUD. ADMIN. 6.2(a). Thus, we request that this matter be expedited at all levels. Appointed appellate counsel should be prepared to pursue the appeal without further delay. See In re H.A.C., No. 06-16-00063-CV, 2016 WL 5956068, at *1-2 (Tex. App.-Texarkana Oct. 13, 2016, order) (abating appeal and directing trial court to appoint counsel for father without delay and instructing appointed counsel to pursue appeal in expedited manner). Appointed appellate counsel's brief will be due 20 days from the date that counsel is appointed.
It is so ORDERED.