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

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
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. GOV’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. ANN. § 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).
Accordingly, we abate this appeal and remand the case to 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.
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 appellate 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 order. 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 order. 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 order.
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: April 5, 2022
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