In the Interest of I.M.S. and C.K.S., Children v. the State of Texas ( 2023 )

Opinion issued April 27, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00094-CV
———————————
IN THE INTEREST OF I.M.S AND C.K.S., CHILDREN
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2020-49033
MAJORITY OPINION
Appellee A.L. (“Mother”) and her husband A.L. (“Stepfather”) filed this
private suit to terminate the parental rights of appellant B.S. (“Father”) to his two
minor daughters. Mother and Stepfather also requested that Stepfather be allowed to
adopt the children. The trial court found that Father had violated two statutory
predicate grounds for termination and that termination of his parental rights was in
the best interests of the children. See TEX. FAM. CODE § 161.001(b)(1)(F), (Q),
(b)(2).
On appeal, Father, who is pro se and incarcerated, argues that (1) the trial
court’s failure to appoint counsel to him violated his due process rights, and (2) the
trial court erred by terminating his parental rights to the children. We reverse and
remand.
Background
Mother and Father were married and they had two children together: I.M.S.
(“Iris”), who was born in 2009, and C.K.S. (“Catherine”), who was born in 2011.1
Iris and Catherine were twelve and ten years old, respectively, at the time of trial in
this case.
In May 2013, the trial court signed a final decree of divorce. The decree named
the parties joint managing conservators of the children, and Mother was given the
exclusive right to designate their primary residence. The decree limited this right to
designating the children’s primary residence within 300 miles of Father’s residence,
so long as he resided in Arlington, where he lived at the time of the divorce
proceedings. At the time, Mother lived in Huffman, Texas, and worked in Houston.
With respect to Father’s possessory rights, the decree gave Father a modified
1
In this opinion, we use pseudonyms for the parties and their minor children to
protect their privacy.
2
standard possession order. The decree also ordered Father to pay Mother $450 per
month in child support.
In the years following the divorce, Father regularly exercised his possessory
rights under the decree. However, it became obvious to Mother in 2016 that Father
had started using drugs, including marijuana and methamphetamine, and that he did
so during his times of possession. Mother testified that the children “were put in
dangerous situations more than once,” and that Father left them unsupervised at
home and in public places, including pools and restaurants. Mother stated, “They
were around drugs, all different kinds.” The last time Father saw the children in
person or talked to them was June 2016.
As a result of Father’s drug use, Mother moved to modify the parent-child
relationship. The trial court signed a modification order in March 2017. The
modification order named Mother as sole managing conservator and Father as
possessory conservator. The court found that awarding Father access to the children
would not be in their best interest. The court therefore ordered that Father’s visitation
with the children was to be supervised through the Guardians of Hope program in
Houston. The order required Father to register with the program within ten days, and
it also required both Father and Mother to comply with the program’s rules and
regulations. The order specified that if Father did not register with Guardians of
Hope, Mother was not required to register. If this occurred, Father’s possession
3
would be supervised by the Harris County Victims Assistance Center. The court
ordered Father to pay 100% of the cost of the supervised visitation program.
According to Mother, Father made a payment to Guardians of Hope, but he
did not provide his driver’s license or proof of insurance, both of which the program
required, and therefore Father did not complete the registration process. Mother
registered with the program but was not required to pay anything until Father
completed the registration process, which he never did. Guardians of Hope contacted
Mother about Father’s visitation with the children to inform her that “it wasn’t going
to happen.”
In August 2020, Mother filed the underlying petition to terminate Father’s
parental rights and to allow Stepfather to adopt the children. As grounds for
termination, Mother alleged that Father:
(a) voluntarily left the children alone or in the possession of another
without providing adequate support of the children and remained
away for a period of at least six months;
(b) failed to support the children in accordance with his ability
during a period of one year ending within six months of the date
of the filing of this petition; and
(c) knowingly engaged in criminal conduct that has resulted in his
conviction of an offense and confinement or imprisonment and
inability to care for the children for not less than two years from
the date this petition is filed.
4
See id. § 161.001(b)(1)(C), (F), (Q). Mother also alleged that terminating Father’s
parental rights would be in the children’s best interests. The trial court appointed an
amicus attorney to represent the interests of the children.
Father filed a pro se answer and an unsworn declaration of inability to pay
costs. In this filing, Father declared that he was presently incarcerated. Father also
alleged that due to his indigency, he was unable to hire an attorney to represent him.
He requested that the trial court appoint an attorney ad litem to represent his interests.
The trial court did not appoint an attorney to represent Father.2
In December 2021, the trial court held a bench trial. Mother testified that
Father did not comply with his child support obligation. The trial court admitted a
printout from the Attorney General’s Child Support Division that was dated the
month before trial and reflected Father’s payment history. This document showed
that Father made sporadic payments throughout 2013, 2014, and 2015. According to
this report, Father made a $650 payment in January 2016, an $11,413.35 payment in
January 2018, and a $1,455.48 payment in August 2021. He made no other payments
after January 2016, and he had over $27,000 in arrearages. When shown this
document, Mother agreed that she received payments in January 2016 and August
2
At trial, the trial court asked whether Father had requested representation. Mother’s
attorney responded that Father had requested counsel, but “because this is a private
termination and not being done through the State, he is not entitled to one.” The
court ordered the trial proceedings to continue.
5
2021, but she disagreed that she received an $11,000 payment in January 2018. She
testified that she never received a payment of that size, and Father did not pay any
child support in 2018.
Mother also testified that, at the time of trial, Father was incarcerated after
being convicted of possession of marijuana, robbery, and kidnapping. When asked
what the “underlying event” was for these convictions, Mother stated, “He robbed
his grandparents at gunpoint and beat them up.” The trial court admitted copies of
five judgments of conviction. These judgments reflected that, in February 2020,
Father pleaded guilty to the third-degree felony offense of possession of between
five and fifty pounds of marijuana, two counts of the first-degree felony offense of
aggravated robbery with a deadly weapon, and two counts of the first-degree felony
offense of aggravated kidnapping. Father’s punishment for each offense was set at
nine years’ confinement, to run concurrently. At the time of judgment, Father had
credit for nearly two years of time already served.
Mother married Stepfather in October 2016. Stepfather had known the
children for nearly their entire lives. Mother testified that Stepfather had a good
relationship with the children and that he was a “wonderful dad.” She stated:
“[Stepfather is] their dad in their eyes. He has been for many years. And he raises
them and takes good care of them and they love him very much.” Mother believed
that terminating Father’s parental rights—and allowing Stepfather to adopt the
6
children—would be in the children’s best interest. She also agreed with the
children’s amicus attorney that there was no way to keep the children safe other than
to terminate Father’s parental rights.
Upon questioning from Father, Mother testified that providing letters and
artwork to the children was not the same as providing child support payments, and
Father had not provided support and care while he was incarcerated. Mother agreed
that, around 2017, she blocked Father from communicating with the children by
phone, but she did not prohibit Father from speaking with the children through email.
She stated that if Father had sent her an email, “which [he] was not blocked from,
and asked to talk to the girls and remain not irate, [he] would have been able to talk
to the girls.” Mother testified that she prohibited Father from speaking with the
children by phone because, over the course of several months, Father made “repeated
phone calls, harassment, threats, derogatory speech, middle of the night calls, all day
calls, all-day text messages.” Because Father refused to stop this behavior, she
refused to allow Father to speak with the children by phone.
Stepfather testified that he “provide[s] a place for the girls to live” and
“provide[s] everything that they have.” He tries “to be a father figure to them,” and
he views the children as if they were his own biological children. He testified that
he and Mother have two younger children together. Stepfather agreed that,
regardless of the outcome of the trial, he would continue acting as a father figure to
7
the children. He also agreed that terminating Father’s parental rights was in the
children’s best interest.
Father testified and acknowledged that he had pleaded guilty to five offenses,
that he was serving a nine-year sentence for the offenses, and the complainants in
the robbery and kidnapping charges were his grandparents. He admitted that a
firearm was involved in those offenses, but he stated that it was his grandparents’
gun that he took away from his grandfather. He also stated that these offenses
occurred in June 2018. Father did not know how much marijuana he had in his
possession at the time of that offense, but it was at least five pounds. He denied that
he intended to sell the marijuana, stating instead that he had purchased it “for
personal use.”
When asked about his payment of child support, Father testified that he did
not have the means to pay child support from 2016 onwards. Father had been self-
employed and owned a business printing T-shirts. Some months, he would earn more
than the amount of his child support obligation, but he “was trying to take care of
[himself]” and did not use these earnings to pay child support. He stated that he had
not had the means to pay child support since his incarceration in June 2018.3 When
3
Father informed the trial court that his house was foreclosed upon after he was
arrested, and approximately $26,000 of excess proceeds will go to Mother to satisfy
Father’s child support obligation. Mother’s counsel confirmed that he had submitted
to the court an application for a writ of garnishment to access these funds, but the
court had not yet ruled upon that request. Statements by both Father and Mother’s
8
asked by the children’s amicus attorney who he expected to provide for the children
when he was not paying child support and when he was incarcerated, he stated,
“Their mother.”
Father agreed that he had not seen the children since 2016, but he stated that
this was not due to lack of effort and that he had “tried very hard to see [his] kids.”
When asked about the March 2017 modification order’s requirement that he register
for supervised visitation with Guardians of Hope, Father testified that he completed
the registration, provided appropriate identification, and paid the required fees.4
According to Father, supervised visitations never occurred due to Mother’s failure
to register with the program. Father never filed anything with the court to enforce
his visitation rights.
With respect to his incarceration, Father testified that he would be eligible for
parole in December 2022. If he is not granted parole at that time, he could continue
to seek parole each year after that. If he is never granted parole, he would be released
from confinement in 2027. In addition to the charges for which he was currently
confined, he also had “some misdemeanors,” but he did not remember what those
counsel suggest that the foreclosure sale of Father’s house occurred in 2018, after
Father’s arrest, but no one stated precisely when the sale occurred or when Father
became entitled to any excess proceeds from the sale.
4
Father stated that he had a receipt from Guardians of Hope demonstrating his
registration with the program. Father did not offer a receipt as documentary
evidence.
9
charges were. He did not dispute Mother’s testimony that he was placed on
supervised visitation with the children in 2017 because he had tested positive for
marijuana and methamphetamine usage. He stated, however, that he had not “had a
problem with drugs.”
The trial court signed an order terminating Father’s parental rights. The court
found, by clear and convincing evidence, that Father had (1) failed to support the
children in accordance with his ability during a one-year period ending within six
months of the date of filing of the petition; and (2) knowingly engaged in criminal
conduct that resulted in his conviction of an offense and confinement and inability
to care for the children for not less than two years from the date the petition was
filed. See id. § 161.001(b)(1)(F), (Q). The court also found, by clear and convincing
evidence, that terminating Father’s parental rights would be in the children’s best
interest.
This appeal followed.
Denial of Appointed Counsel
In his first issue,5 Father, who has been pro se and incarcerated throughout the
pendency of this proceeding, argues that the trial court’s failure to appoint him
counsel violated his due process rights.
5
Father filed his appellate brief before the court reporter filed the reporter’s record,
and therefore Father’s brief does not contain any citations to the appellate record.
See TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain “a clear and
10
A. Governing Law
Suits to terminate a parent’s parental rights can be filed by multiple parties,
including a governmental entity—such as the Department of Family and Protective
Services—and the child’s other parent. See TEX. FAM. CODE § 102.003(a)(1), (5),
(6); In re H.D.D.B., No. 01-20-00723-CV, 2022 WL 2251655, at *8 (Tex. App.—
Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.). In a termination suit initiated
by a governmental entity, an indigent parent has a statutory right to appointment of
an attorney ad litem to represent his interests. See TEX. FAM. CODE § 107.013(a)(1);
In re B.C., 592 S.W.3d 133, 134 (Tex. 2019) (per curiam); In re J.C., 250 S.W.3d
486, 489 (Tex. App.—Fort Worth 2008, pet. denied). However, in termination suits
initiated by a private party, such as the child’s other parent, an indigent parent is not
statutorily entitled to appointment of counsel. See In re J.C., 250 S.W.3d at 489.
Instead, in private termination cases, the trial court is authorized to appoint an
attorney ad litem to represent an indigent parent, but this authority is discretionary
with the trial court, not mandatory. See TEX. FAM. CODE § 107.021(a)(2); In re J.C.,
250 S.W.3d at 489; In re H.D.D.B., 2022 WL 2251655, at *8.
concise argument for the contentions made, with appropriate citations to authorities
and to the record”). He also cites no authorities in support of his statement that the
trial court’s failure to appoint counsel for him violated his due process rights. Given
the importance of Father’s rights at stake in this parental-rights termination
proceeding, we construe his brief liberally to reach the merits of his appellate issues
where possible. See TEX. R. APP. P. 38.9; In re H.D.D.B., No. 01-20-00723-CV,
2022 WL 2251655, at *4 (Tex. App.—Houston [1st Dist.] June 23, 2022, no pet.)
(mem. op.).
11
Although Texas statutory law does not require appointment of counsel in
private termination suits, the due process clause of the Fourteenth Amendment may
require it. See U.S. CONST. amend. XIV; In re H.D.D.B., 2022 WL 2251655, at *9;
In re L.F., No. 02-19-00421-CV, 2020 WL 2201905, at *11 (Tex. App.—Fort Worth
May 7, 2020, no pet.) (mem. op.). In Lassiter v. Department of Social Services of
Durham County, North Carolina, the United States Supreme Court addressed
whether indigent parents have a due process right to appointed counsel in
termination proceedings. See 452 U.S. 18 (1981). The Court began with the
presumption that an indigent litigant has a due process right to appointed counsel
“only when, if he loses, he may be deprived of his physical liberty.” Id. at 26–27.
The Court then balanced this presumption against three elements typically evaluated
when determining what procedures due process requires: the private interests at
stake, the government’s interest, and the risk that the procedures used will lead to an
erroneous decision. Id. at 27 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
Because a parent’s desire and right to “the companionship, care, custody and
management of his or her children” is an important one, the parent’s interest in the
accuracy and justice of the decision to terminate parental rights is “commanding.”
Id. The parent has an additional interest if the termination petition contains
allegations of abuse or neglect upon which future criminal charges could be based.
Id. at 32. The State has a parens patriae interest in preserving and promoting the
12
welfare of children, see Santosky v. Kramer, 455 U.S. 745, 766 (1982), and thus the
State shares the parent’s interest in an accurate and just decision. See Lassiter, 452
U.S. at 27–28; see also In re K.S.L., 538 S.W.3d 107, 114 (Tex. 2017) (stating that
State’s interest in “just decision is largely coextensive with the parents’ interests”);
In re K.L., 91 S.W.3d 1, 10 (Tex. App.—Fort Worth 2002, no pet.) (noting that
parens patriae interest “favors preservation, not severance, of natural familial
bonds”).
Parents, children, and the State have an interest in resolving termination cases
as expeditiously as reasonably possible to reduce the amount of instability in the
children’s lives. In re J.F.C., 96 S.W.3d 256, 274 (Tex. 2002); In re K.L., 91 S.W.3d
at 10 (noting that State has interest in ensuring termination proceedings are not
unreasonably delayed to avoid “prolonged uncertainty” for child). “The child’s best
interest is inherently threatened by undue uncertainty and delay in finally
determining where the child will live and who will raise her.” In re K.S.L., 538
S.W.3d at 115. The State also has an economic interest in avoiding the expense of
appointed counsel and the cost of lengthened proceedings that may ensue if the
parent is represented by counsel. Lassiter, 452 U.S. at 28. The State’s pecuniary
interest is “legitimate,” but it is not significant enough to overcome the parent’s
strong and important interest in maintaining parental rights. Id.13
Courts must also consider the risk that the parent might be erroneously
deprived of his parental rights because he is not represented by counsel. 6 Id. A
relevant consideration with respect to this interest is whether expert medical or
psychiatric testimony, “which few parents are equipped to understand and fewer still
to confute,” is presented. Id. at 30. Courts should also consider whether the case
presents “troublesome points of law, either procedural or substantive,” for which
counsel could make “a determinative difference” or whether the “absence of
counsel’s guidance” on a particular point “render[s] the proceedings fundamentally
unfair.” Id. at 32–33.
The Lassiter Court summarized its discussion of the relevant factors and
reasoned:
[T]he parent’s interest is an extremely important one (and may be
supplemented by the dangers of criminal liability inherent in some
termination proceedings); the State shares with the parent an interest in
a correct decision, has a relatively weak pecuniary interest, and, in some
6
In a case in which the Department of Family and Protective Services sought
termination of parental rights, the Texas Supreme Court noted that the Texas
Legislature has “enacted a comprehensive statutory scheme to ensure that
termination trials result in a correct decision.” In re B.L.D., 113 S.W.3d 340, 353
(Tex. 2003). For example, a termination petition must provide notice to all parties
by alleging the statutory grounds for termination and that termination is in the
children’s best interest; the findings supporting termination must be made by clear
and convincing evidence; and legal and factual sufficiency challenges are
considered under a heightened standard of appellate review. Id. at 353–54. The court
also noted an additional procedural safeguard to ensure termination proceedings
result in the correct decision: “A trial court must appoint counsel for indigent parents
opposing termination.” Id. at 353. As discussed above, however, the Legislature has
not granted this right of counsel to indigent parents in private termination
proceedings.
14
but not all cases, has a possibly stronger interest in informal procedures;
and the complexity of the proceeding and the incapacity of the
uncounseled parent could be, but would not always be, great enough to
make the risk of an erroneous deprivation of the parent’s rights
insupportably high.
If, in a given case, the parent’s interests were at their strongest, the
State’s interests were at their weakest, and the risks of error were at
their peak, it could not be said that the Eldridge factors did not
overcome the presumption against the right to appointed counsel, and
that due process did not therefore require the appointment of counsel.
Id. at 31; see M.L.B. v. S.L.J., 519 U.S. 102, 123 (1996) (“When deprivation of
parental status is at stake, however, counsel is sometimes part of the process that is
due.”). However, the Court refused to hold that due process “requires the
appointment of counsel in every parental termination proceeding.” Lassiter, 452
U.S. at 31. Instead, the question whether due process requires appointment of
counsel for an indigent parent in a termination proceeding is “to be answered in the
first instance by the trial court, subject, of course, to appellate review.” Id. at 31–32;
see In re R.J.C., No. 04-09-00106-CV, 2010 WL 816188, at *3 (Tex. App.—San
Antonio Mar. 10, 2010, no pet.) (mem. op.) (“Whether due process calls for the
appointment of counsel for indigent parents in termination proceedings is left to the
sound discretion of the trial court.”).
B. Analysis
The proceeding to terminate Father’s parental rights was filed by Mother and
Stepfather, not the Department of Family and Protective Services or another
15
governmental entity. As a result, because this is a private termination case, Father,
even though he is incarcerated and indigent, is not statutorily entitled to appointment
of counsel. See In re J.C., 250 S.W.3d at 489. Father requested appointment of
counsel, and the trial court had discretion to grant that request, but the court was not
statutorily mandated to grant the request and appoint counsel for Father. See TEX.
FAM. CODE § 107.021(a)(2); In re J.C., 250 S.W.3d at 489; In re H.D.D.B., 2022
WL 2251655, at *8. We therefore turn to whether the failure to appoint counsel for
Father violated his due process rights under the Fourteenth Amendment.
As the United States Supreme Court has acknowledged, Father has an
“important” interest in maintaining the “companionship, care, custody and
management” of his children, and his interest in the accuracy of this proceeding,
which sought to terminate his parental rights forever, is “commanding.” See Lassiter,
452 U.S. at 27. This “fundamental” right, see In re D.T., 625 S.W.3d 62, 69 (Tex.
2021), is “far more precious than any property right.” Santosky, 455 U.S. at 758–59;
In re J.F.C., 96 S.W.3d at 273. As in Lassiter, however, the termination petition did
not contain any allegations that Father abused or neglected the children, such that,
in addition to the termination proceedings, he could also be subject to future criminal
prosecution. See 452 U.S. at 32 (noting that termination petition contained no
allegations of abuse or neglect that could form basis for criminal liability, and
therefore indigent mother could not argue that she needed assistance of counsel for
16
that reason); In re L.F., 2020 WL 2201905, at *12 (concluding that due process did
not require appointment of counsel for indigent mother in part because termination
petition “contained no allegations against [m]other upon which criminal charges
could be based”). Thus, although Father has an “extremely important” interest at
stake, his interests are not “at their strongest.” See Lassiter, 452 U.S. at 31.
At trial, the only witnesses were Mother, Father, and Stepfather. This was
therefore not a situation in which Father was faced with cross-examining expert
witnesses without the assistance of counsel. Additionally, although Mother offered
several exhibits, these exhibits consisted of an account activity report prepared by
the Office of the Attorney General, the judgments for Father’s criminal convictions,
Mother and Father’s divorce decree, and the March 2017 order modifying the parent-
child relationship to require supervised visitation. No complicated medical or
psychiatric reports or other evidence was admitted. See id. at 32 (noting that while
state entity seeking termination was represented by counsel at trial, no expert
witnesses testified); see also In re L.F., 2020 WL 2201905, at *12 (noting, in
concluding that due process did not require appointment of counsel in private
termination suit, that no expert witnesses testified); In re J.E.D., No. 11-19-00166-
CV, 2019 WL 5617645, at *3 (Tex. App.—Eastland Oct. 24, 2019, no pet.) (mem.
op.) (same); In re T.L.W., No. 12-10-00401-CV, 2012 WL 1142475, at *2 (Tex.
17
App.—Tyler Mar. 30, 2012, no pet.) (mem. op.) (same); In re R.J.C., 2010 WL
816188, at *4 (same).
Some of Mother’s testimony—including her testimony concerning the
circumstances of Father’s criminal offenses—was not based on her own personal
knowledge, and was therefore objectionable, but Father did not object. Father
acknowledged in his testimony that the complainants of his aggravated robbery and
kidnapping offenses were his grandparents and that a firearm was involved, although
Father testified that the gun was not his, and instead he took his grandfather’s gun
away from him. There is no indication that the judgments reflecting Father’s
convictions and sentences, the testimony concerning Father’s failure to pay child
support, and Mother’s and Stepfather’s testimony concerning Stepfather’s
relationship with the children were inadmissible. See In re T.L.W., 2012 WL
1142475, at *2 (“[A]lthough some objectionable evidence may have been admitted,
there is no indication that the evidence of [father’s] convictions, his child support
records, or [mother’s] and her new husband’s testimony indicating that termination
was in the children’s best interest was inadmissible.”); In re R.J.C., 2010 WL
816188, at *4 (same).
Additionally, Father demonstrated a desire to contest the proceedings and
retain his parental rights. In several filings with the trial court, he stated that he
wanted to maintain a relationship with the children and that he had tried to do so by
18
sending the children letters and gifts while he was incarcerated, but Mother was
uncooperative. Father offered, and the trial court admitted, three letters that Mother
wrote to him during his incarceration and the pendency of the termination
proceeding. In these letters, Mother acknowledged that Father had sent the children
letters, artwork, and gifts, and she also acknowledged that Father wanted to remain
a part of the children’s lives. Although the parent’s desire to contest the proceedings
and parent their children is a factor that we consider, that circumstance alone does
not entitle a parent to appointment of counsel. See In re T.L.W., 2012 WL 1142475,
at *2; In re R.J.C., 2010 WL 816188, at *4.
We must also consider whether the case presented any “specially troublesome
points of law, either procedural or substantive.” See Lassiter, 452 U.S. at 32; In re
T.L.W., 2012 WL 1142475, at *2 (considering whether case involved any
“troublesome points of law to address”); In re R.J.C., 2010 WL 816188, at *4
(same). Mother sought termination of Father’s parental rights based on three
statutory predicate grounds: Family Code section 161.001(b)(1)(C), (F), and (Q).
The trial court ultimately terminated Father’s parental rights based on subsections
(F) and (Q).
A trial court may terminate a parent’s rights under subsection (F) if it finds,
by clear and convincing evidence, that the parent failed to support the child in
accordance with the parent’s ability during a period of one year ending within six
19
months of the date of the filing of the petition. TEX. FAM. CODE § 161.001(b)(1)(F).
“One year” means twelve consecutive months, and this period must begin no earlier
than eighteen months before the date of filing the termination petition. In re J.G.S.,
574 S.W.3d 101, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied); In re
F.E.N., 542 S.W.3d 752, 765 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
(concluding that relevant time period under subsection (F) was “any twelve
consecutive months” between September 1, 2011, and March 1, 2013, which was
date termination petition was filed), pet. denied, 579 S.W.3d 74 (Tex. 2019) (per
curiam).
The party seeking termination bears the burden to establish that the parent had
the ability to support the child during each month of the twelve-month period. In re
J.G.S., 574 S.W.3d at 117; In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso
2007, no pet.); In re T.B.D., 223 S.W.3d 515, 518 (Tex. App.—Amarillo 2006, no
pet.). A previous child-support order is not evidence of a parent’s ability to pay under
subsection (F). In re D.M.D., 363 S.W.3d 916, 920 (Tex. App.—Houston [14th
Dist.] 2012, no pet.); In re D.S.P., 210 S.W.3d 776, 781 (Tex. App.—Corpus
Christi–Edinburg 2006, no pet.) (concluding that child support order “should not be
afforded any relevance in a termination proceeding involving section
161.001[b](1)(F)”). The parent does not bear the burden to disprove ability to pay.
See in re D.M.D., 363 S.W.3d at 920. Without clear and convincing evidence of the
20
parent’s ability to support their child during the statutory period, the trial court may
not order termination under subsection (F). In re J.G.S., 574 S.W.3d at 117.
Mother filed suit to terminate Father’s parental rights on August 16, 2020.
Thus, the relevant time period for determining if Father supported the children in
accordance with his ability is February 16, 2019, to August 16, 2020. See id. (stating
that “one year” means twelve consecutive months and period must begin no earlier
than eighteen months before filing of termination petition). Mother bore the burden
to establish, by clear and convincing evidence, that Father had the ability to support
the children for each of twelve consecutive months during this time period, but
Father failed to do so.
The divorce decree, entered in May 2013, imposed a $450 per month child
support obligation on Father. A financial activity record maintained by the Attorney
General’s office reflected that Father made some payments throughout 2013, 2014,
and 2015. Father then made a $650 payment in January 2016, an $11,413.35
payment in January 2018, and a $1,455.48 payment in August 2021.7 He made no
other payments, including no payments at all from February 2019 through August
2020.
7
Mother confirmed that she received a child support payment in January 2016 and
August 2021, but she disputed receiving a payment in January 2018. She agreed that
she received no child support payments from Father in 2019 and 2020.
21
It is undisputed that Father was incarcerated throughout the pendency of the
termination proceedings. Father testified that he was arrested for the incident that
formed the basis for his convictions in June 2018, and he has been incarcerated since
then. Father was convicted in February 2020. When asked if he has voluntarily paid
child support since he has been incarcerated, Father responded, “I haven’t had the
means.” See id. at 118 (concluding that paternal grandmother did not establish
father’s ability to pay when father was incarcerated for entire statutory period under
subsection (F) and he had no access to military pay during this time); In re E.M.E.,
234 S.W.3d at 74 (concluding evidence was insufficient to support finding under
subsection (F) when evidence was undisputed father had no income while
incarcerated during relevant time period); In re T.B.D., 223 S.W.3d at 518
(concluding that termination under subsection (F) was not appropriate when father
was incarcerated during entire statutory time period, father testified he had no ability
to support his child while in prison, and no evidence was presented of father’s ability
to support child). Mother’s counsel did not ask Father any questions about his assets,
nor did counsel ask any questions about any funds Father may have received or had
access to from February 16, 2019, through August 16, 2020.
At the close of the hearing, the trial court stated its intentions to find that
Father committed at least two statutory predicate acts and that termination of his
parental rights was in the children’s best interest. The court mentioned subsection
22
(F) and stated, “but you have not provided support.” The trial court, Father, and
Mother’s counsel then had the following exchange:
Father: In July I made [Mother’s counsel] and [Mother] a
judgment for $26,000 for child support,
uncontested, and they’re now going after the
foreclosure of my house, the excess funds to pay
that $26,000. So my child support will be paid in
full once that—once that excess proceeds comes to
[Mother].
The Court: Is the house on the market?
Father: No. It was foreclosed in 2018 when I got
incarcerated.
The Court: Okay. So how did you know that there’s any excess
proceeds?
Father: Because [Mother’s counsel] has provided me with
the information.
....
Mother’s Counsel: There is [an] application for a writ of judgment—or
writ of garnishment that is awaiting your signature
in the original SAPCR, it was the original SAPCR
case with an A on it. We’ve been awaiting your
signature on that, although I will add that per the
Code, he’s not supporting the child during—what
he’s talking about is that application garnishment—
garnishment and that was for—he had property that
was foreclosed on in 2018.
I would just add to the Court though, that the mere
evidence of the fact that he’s owned—that he owned
the property that he could have sold to pay the child
support establishes that he had the ability to pay
child support.
The Court: All right. And do you have any response to that, sir?
23
Father: That’s not the case. Nobody—I couldn’t sell my
property if I was living there. I would have nowhere
to live.
Although Father and Mother’s counsel agreed that Father’s house had been
foreclosed upon in 2018 and there were excess proceeds from the foreclosure sale,
the record is not clear when the sale happened, whether Father had access to the
excess proceeds, or whether he even knew about the excess proceeds during the time
period relevant to subsection (F). Mother bore the burden to establish that Father had
the ability to pay support during the statutory time period but failed to do so. See In
re J.G.S., 574 S.W.3d at 117. Based on this record, we cannot say that, had counsel
represented Father, counsel could not have “made a determinative difference” at
trial. Cf. Lassiter, 452 U.S. at 32–33 (stating that while hearsay evidence was
admitted at trial and mother “no doubt left incomplete her defense,” weight of
evidence that mother had little interest in relationship with her child “was
sufficiently great that the presence of counsel for [mother] could not have made a
determinative difference”).
The trial court also terminated Father’s parental rights based on subsection
(Q). This subsection allows a court to terminate a parent’s rights if it finds by clear
and convincing evidence that the parent knowingly engaged in criminal conduct that
has resulted in the parent’s (1) conviction of an offense, and (2) confinement or
imprisonment and inability to care for the child for not less than two years from the
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date of filing the petition for termination. TEX. FAM. CODE § 161.001(b)(1)(Q). If
the parent is convicted and sentenced to serve at least two years’ confinement and
will not be able to provide for the child during that time, a party may seek termination
of the parent’s rights under subsection (Q). In re A.V., 113 S.W.3d 355, 360 (Tex.
2003); In re A.R., 497 S.W.3d 500, 503 (Tex. App.—Texarkana 2015, no pet.).
Establishing “inability to care for the child” is not met by merely showing
prolonged incarceration. In re J.G.S., 574 S.W.3d at 118. If that were sufficient, then
termination of parental rights “could become an additional punishment
automatically imposed along with imprisonment for almost any crime.” In re E.S.S.,
131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.). Thus, evidence of
incarceration for at least two years “is only the first of a three-step analysis.” In re
J.G.S., 574 S.W.3d at 118.
Once the party seeking termination has presented evidence of criminal
conduct by the parent resulting in confinement for at least two years, the burden of
production shifts to the parent to provide some evidence of how the parent will
provide care for the child during the period of confinement. Id. at 119; see In re
C.L.E.E.G., 639 S.W.3d 696, 700 (Tex. 2022) (per curiam) (concluding that
sufficient evidence supported termination under subsection (Q) when parent
introduced “no evidence” of efforts to arrange for child’s care “during his remaining
imprisonment”). The parent may meet this burden of production by presenting some
25
evidence that the parent has arranged with another person for that person to provide
care for the child during the parent’s period of confinement. In re J.G.S., 574 S.W.3d
at 119; In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet.
denied). The parent must prove the proposed caregiver’s agreement to provide care.
In re J.G.S., 574 S.W.3d at 119.
The Texas Supreme Court has stated:
Absent evidence that the non-incarcerated parent agreed to care for the
child on behalf of the incarcerated parent, merely leaving a child with
a non-incarcerated parent does not constitute the ability to provide care.
If it did, then termination under subsection Q could not occur in any
instance where one parent is not incarcerated and is willing and able to
care for the child. [The mother] is [the child’s] sole managing
conservator, and as such, she has both the obligations of a parent and
specific statutory rights. It does not follow that the possessory
conservator’s obligations are satisfied by allowing the sole managing
conservator to be the exclusive caregiver.
In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (per curiam); In re J.G.S., 574
S.W.3d at 119 (stating that parent “must demonstrate that the care is being provided
on behalf of the parent, not out of an existing duty or inclination to care for the
child”). When determining whether the parent has an inability to care for the child,
we consider factors including the “availability of financial and emotional support
from the incarcerated parent.” In re B.M.R., 84 S.W.3d 814, 818 (Tex. App.—
Houston [1st Dist.] 2002, no pet.).
If the parent meets this burden of production, the burden shifts back to the
party seeking termination, who has the burden of persuasion to show that the parent’s
26
provision or arrangement will not adequately satisfy the parent’s duty to the child.
In re J.G.S., 574 S.W.3d at 119–20; In re B.D.A., 546 S.W.3d 346, 358 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied).
Father does not deny that he has been sentenced to confinement for nine years
and Mother presented evidence of his sentences for five criminal offenses at trial.
Thus, the first step in the analysis under subsection (Q) is satisfied. See TEX. FAM.
CODE § 161.001(b)(1)(Q); In re A.V., 113 S.W.3d at 360. However, this is “only the
first of a three-step analysis.” In re J.G.S., 574 S.W.3d at 118. After Mother
presented evidence that Father knowingly engaged in criminal conduct that resulted
in his imprisonment for at least two years, the burden of production shifted to Father
to present some evidence of how he would provide care for the children during his
period of confinement. See id. at 119. Father could meet this burden by providing
evidence that he arranged with another person for that person to provide care for the
children. See id. Father, however, presented no such evidence.
While Mother, as the party seeking termination, bore the ultimate burden of
persuasion to establish the statutory elements of subsection (Q) by clear and
convincing evidence, once she presented evidence that he had engaged in criminal
conduct resulting in imprisonment for at least two years, Father also bore a burden
of production. See In re C.L.E.E.G., 639 S.W.3d at 700; In re J.G.S., 574 S.W.3d at
119. Thus, to avoid termination under this subsection, Father was not just required
27
to defend himself against the allegation that he violated subsection (Q). Instead, he
had his own evidentiary burden. We conclude that this case presented “troublesome
points of law” and that counsel for Father could have “made a determinative
difference.” See Lassiter, 452 U.S. at 32–33.
When we consider all the circumstances, particularly the importance of
Father’s interest at stake, his desire to contest the proceedings and maintain a
relationship with his daughters, and the challenges of defending against termination
under subsections (F) and (Q) in this case, we conclude that the trial court should
have appointed counsel to represent Father as a matter of due process. See id. at 31–
32. We hold that the trial court erred by failing to appoint counsel to represent Father
in this private termination proceeding.
Conclusion
We reverse the trial court’s order terminating Father’s parental rights to Iris
and Catherine and remand the case for further proceedings.
April L. Farris
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
Justice Countiss, dissenting.
28