in the Interest of J.R. and I.R., Children ( 2017 )

Opinion filed January 17, 2017
In The
Eleventh Court of Appeals
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No. 11-16-00203-CV
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IN THE INTEREST OF J.R. AND I.R., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 8126-CX
MEMORANDUM O PI NI O N
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of J.R. and I.R.1 On appeal, the mother presents two
issues related to her statutory right to be represented at trial by a court-appointed
attorney. We reverse in part and remand.
I. Background Facts
The Department of Family and Protective Services filed a petition to terminate
the mother’s parental rights to her children. The petition was filed on July 20, 2015,
and the trial court appointed Stacey Chapman as the mother’s attorney ad litem on
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We note that each parent filed a notice of appeal. However, the father subsequently filed a motion
to dismiss his appeal, and this court granted his motion on November 3, 2016.
July 31, 2015. Chapman represented the mother at the adversary hearing that was
held on August 7, 2015. Thereafter, on August 31, 2015, Chapman filed a motion to
withdraw as counsel for the mother. Attached to Chapman’s motion were two
exhibits: a letter from the mother and e-mail correspondence between Chapman and
the mother.
Both exhibits reflect that the mother was extremely displeased with
Chapman’s representation and that the mother attempted, unilaterally, to terminate
her attorney-client relationship with Chapman. In the letter, the mother notified
Chapman that Chapman was “hereby released from any obligation and or contract
to litigate on my behalf or to represent me as legal counsel, effective immediately.”
Chapman informed the mother that her “release” of Chapman was ineffective and
that the trial court would have to allow Chapman to withdraw in order for Chapman
to be released from her duties to represent the mother. The mother replied:
I don’t need permission to dismiss an attorney who does not put in the
work needed. You talking about the service plan clearly shows you
have no regard to your wrongdoing in this matter. . . . From the day we
walked into your office you have belittle[d] my family. You did not
speak on anything that was asked [of] you nor did you allow me to tell
you in court what needed to be said. I refuse to allow you to treat me
like a criminal or [a] child. I will attempt to raise money to hire a
competent attorney before I allow you to . . . .
On September 9, 2015, the trial court held a hearing on Chapman’s motion to
withdraw as counsel for the mother. The mother did not appear for the hearing. The
trial court granted Chapman’s motion to withdraw but did not appoint an attorney to
take Chapman’s place as counsel for the mother. The mother subsequently filed a
pro se motion to dismiss the petition and a pro se motion to disqualify the judge.
Shortly thereafter, the mother must have requested that another attorney be appointed
to represent her because, on October 1, 2015, the trial court informed the mother by
letter that her “request for another Court Appointed Attorney has been denied.” The
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trial court explained in the October 1 letter that the mother did not qualify for another
court-appointed attorney because the mother was responsible for Chapman’s
withdrawal.
In a document filed on January 8, 2016, the mother asked that the trial court
reconsider her request for a court-appointed attorney. In this filing, the mother
asserted her right to counsel as an indigent parent and stated that she could not
represent herself properly, as she quickly discovered at a status hearing. When the
final hearing on termination commenced on June 10, 2016, the trial court addressed
the mother’s motion to reconsider her request for another attorney. The trial court
ruled that, although it had found the mother to be indigent and had appointed an
attorney to represent her, the mother had “discharged that attorney and, accordingly,
. . . is not entitled to a second court-appointed attorney.” The final hearing proceeded
after this ruling.
The mother was without counsel and represented herself at the final hearing.
The record shows that she did not cross-examine any of the witnesses, lodge any
objections, or call any witness to testify on her behalf. At the end of that hearing,
the trial court terminated the mother’s parental rights. See TEX. FAM. CODE ANN.
§ 161.001(b) (West Supp. 2016).
II. Right to a Court-Appointed Attorney
In Texas, an indigent parent has a statutory right to court-appointed counsel in
a case brought by the Department to terminate the parent’s parental rights. Id.
§ 107.013(a)(1); In re P.M., No. 15-0171, 2016 WL 1274748, at *3 (Tex. Apr. 1,
2016); In re B.G., 317 S.W.3d 250, 253 (Tex. 2010); In re M.S., 115 S.W.3d 534, 544
(Tex. 2003). This statutory right to counsel includes the right to effective assistance
of counsel. M.S., 115 S.W.3d at 544, 550. Once appointed under Section 107.013(a),
an attorney cannot withdraw without good cause and the court’s permission. B.G.,
317 S.W.3d at 254. In P.M., the Texas Supreme Court stated: “Courts have a duty to
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see that withdrawal of counsel will not result in foreseeable prejudice to the client.
If a court of appeals allows an attorney to withdraw, it must provide for the
appointment of new counsel to pursue a petition for review.” 2016 WL 1274748, at
*3 (footnote omitted).
A. Motion to Withdraw: Good Cause
In her first issue, the mother asserts that the trial court erred when it granted
Chapman’s motion to withdraw because good cause did not exist for Chapman’s
withdrawal. We disagree. Chapman asserted in her motion that good cause existed
for her withdrawal because she was unable to effectively communicate with the
mother. The exhibits attached to Chapman’s motion reveal the discord in their
attorney-client relationship. The record indicates that the motion to withdraw was
not based on mere dissatisfaction but that the relationship between Chapman and the
mother had deteriorated to such an extent that good cause existed for Chapman’s
withdrawal. See id. at *3–4. Consequently, we hold that the trial court did not abuse
its discretion when it granted Chapman’s motion to withdraw as counsel. We
overrule the mother’s first issue.
B. Denial of Subsequent Requests for Attorney
In her second issue, the mother contends that the trial court erred when it
refused to grant the mother’s request for new counsel and left her without counsel in
violation of Section 107.013(a)(1). We agree.
We first note that the Department suggests that the mother invited error when
she attempted to release Chapman as her counsel, failed to appear at the hearing on
Chapman’s motion to withdraw, and filed pro se motions after Chapman withdrew.
The Department cites In re R.H. in support of its position. See In re R.H., No. 01-
14-00874-CV, 2015 WL 4594557, at *7–8 (Tex. App.—Houston [1st Dist.] July 28,
2015, no pet.) (mem. op.). Although the mother may have invited the trial court’s
decision to permit Chapman to withdraw, the mother subsequently requested
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replacement counsel well before the final hearing and, thus, did not invite the trial
court’s decision to refuse such requests. The Department does not address the
doctrine of invited error with regard to the trial court’s denial of the mother’s
subsequent requests for a court-appointed attorney, and we do not believe that the
invited-error doctrine applies to this issue under the circumstances in this case. The
mother was indigent and expressly requested that counsel be appointed.
Based upon the clear mandate of the legislature and the supreme court that an
indigent parent is entitled to a court-appointed attorney ad litem in a case of this
type, we hold that the trial court abused its discretion when it refused to grant the
mother’s requests for another court-appointed attorney after the trial court permitted
Chapman to withdraw. See FAM. § 107.013(a)(1), (a-1), (d), (e); P.M., 2016
WL 1274748, at *3; In re B.G., 317 S.W.3d at 253; In re M.S., 115 S.W.3d at 544.
The trial court’s failure to grant these requests for counsel constitutes reversible
error. See In re V.L.B., 445 S.W.3d 802, 806–08 (Tex. App.—Houston [1st Dist.]
2014, no pet.); In re C.D.S., 172 S.W.3d 179, 185–86 (Tex. App.—Fort Worth 2005,
no pet.); In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet.
denied); In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.—Corpus Christi 1998, no pet.).
Consequently, we sustain the mother’s second issue.
III. This Court’s Ruling
We reverse the trial court’s order insofar as it terminated the mother’s
parental rights, and we remand this cause to the trial court for further proceedings.
Any proceeding on remand must be commenced within 180 days of this court’s
mandate. TEX. R. APP. P. 28.4.
January 17, 2017 MIKE WILLSON
Panel consists of: Wright, C.J., JUSTICE
Willson, J., and Bailey, J.
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