Opinion
06-24-00060-CV
09-12-2024
IN THE INTEREST OF M.K. AND O.K., CHILDREN
On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 23C0495-CCL
Before Stevens, C.J., van Cleef and Rambin, JJ.
ORDER
Mother appeals from the termination of her parental rights to M.K. and O.K. On August 28, 2024, Mother's appointed counsel, John Mark Burgess, filed a motion in this Court seeking to withdraw from his representation of Mother. Burgess stated that Mother "called [him] to state that she no longer wishe[d] to be represented by [him] in this Appeal and that she intend[ed] to hire private counsel instead." Then, on September 9, 2024, Mother filed a pro se motion seeking an extension of the briefing deadline. In her motion, Mother stated, "Appellant is representing herself pro se in an appeal challenging the trial court's decision regarding the termination of parental rights in the case of O.K. and M.K."
"Given the fundamental nature of the interests at stake, Texas laws afford indigent parents opposing state-initiated termination proceedings the right to appointed counsel." In re M.H., 668 S.W.3d 426, 429 (Tex. App.-Amarillo 2023, no pet.) (citing TEX. FAM. CODE ANN. § 107.013(a)(1)). "Having undertaken to grant the right to counsel to an indigent parent, the State must administer that right consistent with the Due Process Clause of the Fourteenth Amendment." Id. (citing In re K.L., 91 S.W.3d 1, 6 (Tex. App.-Fort Worth 2002, no pet.)).
"Once appointed by the trial court, an attorney may withdraw from representation only for good cause." Id. (citing TEX. R. CIV. P. 10); see TEX. FAM. CODE ANN. § 107.016(2) (Supp.) (requiring a finding of "good cause" before an attorney appointed to represent an indigent parent in a parental-rights termination case can be relieved of the attorney's duties); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) ("Once appointed by the trial court, counsel should be permitted to withdraw only for good cause and on appropriate terms and conditions." (footnotes omitted) (citations omitted)); In re J.C., No. 06-22-00042-CV, 2023 WL 2319410, at *3 (Tex. App.-Texarkana Mar. 2, 2023, pet. denied) (mem. op.) (identifying some factors that have been deemed “good cause” to relieve appointed counsel from duties).
“A parent's waiver of the right to counsel must, at the very least, be knowing and intelligent.” In re M.H., 668 S.W.3d at 430-31 (citing In re C.L.S., 403 S.W.3d 15, 19-20 (Tex. App.-Houston [1st Dist.] 2012, pet. denied); In re A.J., 559 S.W.3d 713, 717-18 (Tex. App.-Tyler 2018, no pet.)). The First Court of Appeals in Houston summed up this issue as follows:
Because a termination of parental rights case is like a criminal case-both protect valuable personal rights from “devastatingly adverse action”-we will “apply the same right to counsel standard that we apply to criminal cases.” In re J.M.S., 43 S.W.3d [60,] 63 [(Tex. App.-Houston [1st Dist.] 2001, no pet.)] (internal citation omitted). The right to counsel under criminal cases requires that a defendant be made aware of the dangers of self-representation before waiving counsel so that “he knows what he is doing and his choice is made with eyes open.” Faretta [v. California], 422 U.S. [806,] 835, 95 S.Ct. [2525,] 2541 [(1975)]. Thus, we hold that in parental[-rights] termination cases, before a parent is permitted to represent himself pro se, the record should show that the trial judge has informed him “that there are technical rules of evidence and procedure, and that he will not be granted any special consideration solely because he has asserted his right of self-representation.” Williams [v. State], 252 S.W.3d [353,] 356 [(Tex. Crim. App. 2008)]. This serves to protect the right to counsel in such cases by ensuring that it is not lightly waived.In re C.L.S., 403 S.W.3d 15, 21-22 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) (footnote omitted) (citations omitted).
Before this matter can proceed on appeal, we must abate it to the trial court for an evidentiary hearing to address the following issues:
1. whether Mother remains indigent and is, therefore, still entitled to be represented by court-appointed counsel on appeal;
2. whether “good cause” exists to relieve Burgess of his duties as Mother's appellate counsel, see TEX. FAM. CODE ANN. § 107.016(2)(C); TEX. R. CIV. P. 10;
3. whether Mother seeks to waive her right to be represented by court-appointed counsel on appeal;
4. if Mother seeks to waive her right to appellate counsel, the trial court should admonish Mother of the pitfalls of engaging in the appellate process without the assistance of counsel;
5. whether, after having been admonished, Mother still desires to waive her right to appellate counsel and whether that waiver is made knowingly, intelligently, and voluntarily;
6. if the trial court determines that good cause exists to permit Burgess to withdraw but that Mother does not desire to waive her right to appellate counsel, the trial court should immediately appoint new appellate counsel to represent Mother in this appeal; and
7. the trial court should enter any additional findings it deems useful to this Court in resolving these issues.
The hearing in the trial court should be held within twenty days of the date of this order. The trial court's findings, as set forth above, shall be entered into the record of the case and filed with this Court as a supplemental clerk's record within ten days of the date of the hearing. The hearing shall be stenographically recorded, and a transcript of the hearing shall be filed in the form of a supplemental reporter's record within ten days of the date of the hearing.
All appellate timetables are stayed and will resume on our receipt of the supplemental record.
IT IS SO ORDERED.
BY THE COURT