in the Interest of C.L., a Child ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00180-CV
IN THE INTEREST OF C.L., A CHILD
On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. B38989-1301, Honorable Edward Lee Self, Presiding
May 19, 2014
ON ABATEMENT AND REMAND
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
B.L. appeals an order signed May 1, 2014, terminating her parental rights with
the minor, C.L.1 The underlying suit affecting parent child relationship was brought in
the trial court by appellee the Texas Department of Family and Protective Services.
Trial was by jury, April 5 through 7, 2014. The reporter’s record has been filed. The
district clerk has filed a request for additional time to file the clerk’s record on the ground
that B.L. has not paid or made arrangements to pay for the record.
1
We identify the mother and child by initials to protect the minor child’s identity.
See TEX. FAM. CODE ANN. § 109.002(d) (West 2014) (appellate court may identify
parties in opinion by fictitious names or their initials); TEX. R. APP. P. 9.8(b)(1)(A)
(requiring use of initials or fictitious name in some cases).
In a pre-trial order, Tina Davis-Rincones was appointed attorney ad litem for B.L.
Davis-Rincones signed B.L.’s notice of appeal as “trial attorney.” The order of
termination, signed one day after B.L.’s notice of appeal was filed, dismissed Davis-
Rincones from her appointment as B.L.’s attorney ad litem.
Among the limited documents provided to the clerk of this court by the clerk of
the trial court is an order signed by the trial court on April 29, 2014, denying
“respondent” court-appointed counsel on appeal. According to the order, counsel was
denied because the financial affidavit was insufficient to determine indigency. In an
April 14, 2014 “affidavit of financial status,” B.L. averred that she is single, has no
dependents living with her, has no employer, has no income, but receives support from
“comm. resources.” Based on stated amounts for food, rent or mortgage, utilities, and
“other expenses” B.L. has monthly expenses of $736.
Apparently B.L. received appointed counsel in the trial court because of
indigence.2 As such, it is presumed that B.L. remains indigent through appeal. TEX.
FAM. CODE ANN. § 107.013(e) (West 2014); TEX. R. APP. P. 20.1(a)(3). We have no
indication the trial court reconsidered B.L.’s indigence and found her no longer indigent
due to a “material and substantial” change in financial circumstances. TEX. FAM. CODE
ANN. § 107.013 (West 2014). If indigent in the trial court, and without a change of
circumstances, B.L. would therefore be entitled to proceed without advance payment of
costs. TEX. R. APP. P. 20.1(a)(3). Additionally, an indigent parent responding in
2
According to the district clerk, the record does not contain an affidavit of
indigency filed by B.L. prior to the appointment of Davis-Rincones. See TEX. FAM. CODE
ANN. § 107.013(d) (West 2014) (affidavit under TEX. R. CIV. P. 145(b) required).
2
opposition to a parental termination case filed by a governmental entity is entitled to a
court appointed attorney ad litem. TEX. FAM. CODE ANN. § 107.013(a)(1) (West 2014); In
re M.S., 115 S.W.3d 534, 544 (Tex. 2003).
Given the lack of clarity the noted facts present, as well as the limited time we
have for reaching a final disposition,3 we abate the appeal and remand the cause to the
trial court for further proceedings. On remand, the trial court shall determine whether
B.L. is indigent and whether an attorney ad litem should be appointed for her
representation on appeal.
The trial court shall conduct any hearings it deems necessary for compliance with
this order. These hearings shall be recorded and a transcription included in a
supplemental reporter’s record. Any orders the trial court issues in complying with this
order shall be included in the clerk’s record. The trial court shall finally dispose of
matters required by this order no later than May 30, 2014.
Should the trial court determine that B.L. is indigent and entitled to court-
appointed counsel, the trial court shall appoint counsel and provide counsel’s name,
address, telephone number, and state bar number to the clerk of this court immediately
upon such appointment. If B.L. is indigent, the trial court shall direct the clerk to prepare
the clerk’s record without advance payment of costs by B.L. If the trial court signs an
order determining B.L. is indigent, the supplemental reporter’s record, if any, and the
3
See TEX. R. JUD. ADMIN. 6.2(a) (requiring disposition of appeal from judgment
terminating parental rights, so far as reasonably possible, within 180 days of the date
the notice of appeal is filed).
3
clerk’s record shall be filed with the clerk of this court on or before the seventh day
thereafter.
It is so ordered.
Per Curiam
4