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In Interest of D.L.W.

Court of Appeals of Texas, Fourteenth District, Houston
Mar 3, 2005
No. 14-04-00703-CV (Tex. App. Mar. 3, 2005)

Opinion

No. 14-04-00703-CV

Memorandum Opinion filed March 3, 2005.

On Appeal from the 314th District Court, Harris County, Texas, Trial Court Cause No. 03-08434J.

Affirmed.

Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.


MEMORANDUM OPINION


Appellant Denise O'Neil brings this appeal from the order terminating her parental rights to her minor children, D.L.W., A.D.W., and C.D.W. In her sole point of error, appellant claims that the trial court committed reversible error when it failed to appoint her counsel before the termination hearing. We affirm.

Background

On October 16, 2003, appellant left her three children at the Salvation Army shelter and did not return, despite her phone call to the shelter the next day saying she was on her way to retrieve the children. Three days later, the Department of Family and Protective Services (DFPS) filed suit against appellant, seeking termination of her parental rights. Appellant had had a history with DFPS; in 1991, one of her children had been temporarily removed from her custody due to appellant's abuse of the child. Although DFPS informed appellant in its family service plan of her rights and of the steps she was required to take to prevent termination, appellant neither completed the steps, provided the court with required information, nor visited nor called her children in foster care. Appellant is shown by court documents to have appeared at the initial hearing on October 20, 2003. In the court's temporary order, appellant is given notice of the full adversary hearing, which was set for October 30, 2003. The order also states that, at the full adversary hearing, appointment of an attorney ad litem for an indigent parent responding in opposition to the termination will be considered. Appellant is not shown to have appeared at the adversary hearing. At the October 30 hearing, the court ruled that appellant was not indigent and ordered her to pay reasonable attorney's fees for the children's attorney ad litem.

A.D.W., the middle child, was removed in 1991 and returned to appellant's custody in 1993.

According to the caseworker, appellant was asked to complete parenting classes, to submit to drug assessment, to obtain housing, employment, and counseling, and to provide names of relatives with whom the children could potentially be placed.

Appellant also tested positive for cocaine during the period between DFPS taking custody and termination.

Order for Protection of a Child in an Emergency and Notice of Hearing, dated October 21, 2003.

Appellant did not appear at the hearing during which the trial court terminated her parental rights and the rights of the children's fathers; however, later that afternoon, she did appear before the trial court, claiming that bad brakes had prevented her from appearing on time for the hearing. Appellant also told the court that, although she had been in the courtroom for a portion of the hearing, she had not made her presence known while her rights were being terminated since she thought the court would "re-do" the hearing. The court, after a brief conversation with appellant regarding her failure to comply with the process, told appellant that its order would remain in effect but that appellant had a right to appeal. Appellant said that she would appeal; the trial court thereafter appointed her counsel. In her appeal, appellant argues that the court erred in failing to appoint her counsel before the hearing as required by Section 107.013(a)(1) of the Family Code since it was aware of her indigence. Specifically, appellant alleges the court should have known she was indigent due to the fact that she lived at a shelter.

One father was unknown; the other was Walker Loving. Both were represented by counsel at the termination hearing.

Analysis

In a suit requesting the termination of the parent-child relationship, Section 107.013(a)(1) of the Family Code requires a trial court to appoint counsel to represent "an indigent parent of the child who responds in opposition to the termination." TEX. FAM. CODE ANN. § 107.013(a)(1) (Vernon Supp. 2004). The burden of proof rests on the individual seeking to establish indigent status to prove that she could not pay attorney's fees or costs associated with the suit. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980). Here, nothing in the record shows that appellant made a prima facie case that she was indigent; in fact, appellant neither appeared at the proper hearing, filed an affidavit of indigence, nor requested counsel until the date of the hearing. When she did request counsel, the court honored her request and appointed her an attorney which represented her in her motion for new trial and this appeal. Furthermore, we can see no reason (and appellant cites no authority) instructing us as to why the trial court should be required to appoint appellant counsel based on a `should have known' standard. We take very seriously the termination of a parent's rights and recognize that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel v. Granville, 530 U.S. 57, 68-69 (2000). However, appellant neither adequately cared for her children (or herself) nor took the steps necessary to prevent termination of her parental rights. The trial court did not err in failing to appoint her counsel prior to the termination hearing; her sole point of error is therefore overruled.

Appellant's motion for a new trial was denied.

We affirm the judgment of the trial court.


Summaries of

In Interest of D.L.W.

Court of Appeals of Texas, Fourteenth District, Houston
Mar 3, 2005
No. 14-04-00703-CV (Tex. App. Mar. 3, 2005)
Case details for

In Interest of D.L.W.

Case Details

Full title:IN THE INTEREST OF D.L.W., A.D.W., AND C.D.W., MINOR CHILDREN

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 3, 2005

Citations

No. 14-04-00703-CV (Tex. App. Mar. 3, 2005)