in the Interest of H. A. a Child ( 2022 )

C OURT OF A PPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
THIRD ORDER OF ABATEMENT
Appellate case name: In the Interest of H.A., a Child
Appellate case numbers: 01-22-00106-CV
Trial court case number: 2020-05703
Trial court: 313th District Court of Harris County, Texas
This appeal involves the termination of the parent-child relationship. Appellant, father,
has filed a pro se notice of appeal from the trial court’s January 21, 2022 order terminating his
parental rights to his minor child, H.A., and granting adoption. Because this is a termination
case, the Court is required to bring this appeal to final disposition within 180 days of the date the
notice of appeal was filed so far as reasonably possible. See TEX. R. JUD. ADMIN. 6.2, reprinted
in TEX. G OV’T CODE ANN., tit. 2, subtit. F app.
The appellate record was due in this case on February 18, 2022. See TEX. R. APP. P.
35.1(b). The reporter’s record was filed on February 24, 2022, at no expense to appellant. The
court reporter’s information sheet filed in this Court states that “appellant is appealing as
indigent.” A clerk’s record has not yet been filed.
Appellant is currently incarcerated. Because the petition to terminate the parent-child
relationship was not filed by a governmental entity in this case, the appointment of counsel for
appellant is not mandatory. See TEX. FAM. CODE ANN. § 107.021; see also In re A.G.D., No.
07-15-00201-CV, 2015 WL 3764918, at *1 (Tex. App.—Amarillo June 16, 2015, order).
However, Texas Family Code section 107.021 grants the trial court the discretion to appoint
counsel in a termination proceeding wherein the State of Texas is not a party. See TEX. FAM.
CODE. A NN. § 107.021; see also In re A.G.D., 2015 WL 3764918, at *1; In re C.L.S., 403 S.W.3d
15, 25 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (Texas Legislature has granted trial
courts discretion to appoint counsel for parents in “private parental-rights disputes”); In re J.C.,
250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied).
On April 5, 2022, we abated this appeal and remanded the case to the trial court for the
trial court to immediately conduct a hearing at which appellant was to be present. The trial court
was directed to determine the following:
1. Whether appellant desires to prosecute the appeal;
2. Whether appellant is indigent; and
3. Whether appellant should be appointed counsel due to his indigency or other
circumstances particular to him and the nature of the proceeding involved.
We directed the trial court, if appellant is indigent, to order the trial court clerk to immediately
file the clerk’s record with this Court at no cost to appellant. Further, if the trial court
determined that appellant is entitled to appointed counsel, we directed the trial court to appoint
appellant counsel to represent appellant on appeal. The trial court was to enter written findings
of fact, conclusions of law, and recommendations as to the above-described issues, separate and
apart from any docket sheet notations.
We also directed the trial court to have a court reporter record the hearing and file a
reporter’s record with this Court within 14 days of the date of our April 5, 2022 abatement order.
The trial court clerk was directed to file a supplemental clerk’s record containing the trial court’s
findings, recommendations, and orders with this Court within 14 days of the date of our April 5,
2022 abatement order. If the trial court’s hearing was conducted by video teleconference, a
certified video recording of the hearing was to be filed in this Court within 14 days of the date of
our April 5, 2022 abatement order.
We did not receive a reporter’s record, a supplemental clerk’s record, or a certified video
recording related to the above-described hearing. Thus, on April 26, 2022, we issued a second
abatement order.
On May 11, 2022, we received a reporter’s record showing that on May 9, 2022, the trial
court attempted to hold a hearing and comply with our previous abatement orders. But “the
Warden or the prison [where appellant is incarcerated] failed to make [appellant] available to
appear” for the trial court’s hearing. Thus, the trial court stated that it did “not have the ability to
provide [this Court] with an answer to the three questions the [t]rial [c]ourt was ordered to
discuss or find out about.”
We note the trial court’s effort to comply with this Court’s April 5, 2022 abatement order
and April 26, 2022 second abatement order. But because the trial court has been unable to hold
the requested hearing and take the requested actions, we again order the trial court to
immediately conduct a hearing at which appellant shall be present. At the trial court’s discretion,
appellant may be present for the hearing in person or, because appellant is incarcerated, appellant
may participate in the hearing by closed-circuit video teleconferencing.1 The trial court is
directed to determine the following:
1. Whether appellant desires to prosecute the appeal;
2. Whether appellant is indigent; and
3. Whether appellant should be appointed counsel due to his indigency or other
circumstances particular to him and the nature of the proceeding involved.
1
Any such teleconference must use a closed-circuit video teleconferencing system that provides
for a simultaneous compressed full motion video and interactive communication of image and
sound between the trial court, appellant, and any attorneys.
2
If appellant is indigent, the trial court shall order the trial court clerk to immediately file the
clerk’s record with this Court at no cost to appellant. Further, if it is determined that appellant is
entitled to appointed counsel, the trial court shall appoint appellant counsel to represent appellant
on appeal. The trial court shall enter written findings of fact, conclusions of law, and
recommendations as to the above-described issues, separate and apart from any docket sheet
notations.
The trial court shall have a court reporter record the hearing and file the reporter’s record
with this Court within 14 days of the date of this third order of abatement. The trial court
clerk is directed to file a supplemental clerk’s record containing the trial court’s findings,
recommendations, and orders with this Court within 14 days of the date of this third order of
abatement. If the hearing is conducted by video teleconference, a certified video recording of
the hearing shall be filed in this Court within 14 days of the date of this third order of
abatement.
The appeal is abated, treated as a closed case, and removed from this Court’s active
docket. The appeal will be reinstated on this Court’s active docket when the supplemental
clerk’s record and the reporter’s record of the hearing is filed in this Court. The court
coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this
Court of such date.
It is so ORDERED.
Judge’s signature: ___________/s/ Julie Countiss___________________
Acting individually
Date: May 17, 2022
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