in the Interest of G.E.D.

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00226-CV
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IN THE INTEREST OF G.E.D.
__________________________________________________________________
On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. C190766-D
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MEMORANDUM OPINION
H.D. (H.D. or Appellant) appeals from a judgment terminating his parental
rights to his daughter, G.E.D.1 On appeal, H.D. argues he was denied procedural due
process because he was not properly admonished of his right to appointed counsel
and such denial caused error that rendered an improper judgment. In its appellate
brief, the Department of Family and Protective Services (the Department) agrees that
the trial court failed to properly admonish H.D. of his right to counsel and that it was
reversible error and that the case should be remanded to the trial court for a new trial.
1 To protect the identity of the minor, we use initials to refer to the child and
her father. See Tex. R. App. P. 9.8(b)(2).
1
Section 107.013(a)(1) mandates the appointment of an attorney ad litem for
an indigent parent who opposes the termination of the parent-child relationship in a
suit filed by the Department. Tex. Fam. Code Ann. § 107.013(a)(1). To trigger the
process for mandatory appointment of counsel in a termination proceeding, a parent
must file an affidavit of indigence pursuant to Rule 145 of the Texas Rules of Civil
Procedure. Tex. R. Civ. P. 145(e); In re B.C., 592 S.W.3d 133, 136 (Tex. 2019). 2
Additionally, the trial court is required to admonish a parent at the first hearing
at which the parent appears of: (1) their right to be represented by an attorney, and
(2) if they are indigent and appearing in opposition to the suit, the right to have an
attorney appointed to represent them in the proceedings. Tex. Fam. Code Ann.
§ 107.013(a-1)(1), (2). And, the trial court must provide an admonishment at the
status hearing and permanency hearing to a parent who is not represented by an
attorney of the right to be represented by an attorney, and if they are indigent and
appear in opposition of the suit, of their right to a court-appointed attorney. Id.§ 263.0061(a)(1).
Rule 44.1(a)(1) of the Texas Rules of Appellate Procedure states that the
judgment may not be reversed unless this Court concludes that the error “probably
2H.D.’s failure to file an affidavit of indigence is not dispositive because, as
this Court discusses below, the trial court failed to properly admonish H.D. as
required by section 263.0061(a). See In re B.C., 592 S.W.3d 133, 136-37 (Tex.
2019).
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caused the rendition of an improper judgment[.]” Tex. R. App. P. 44.1(a)(1); In re
S.R., No. 10-19-00235-CV, 2019 Tex. App. LEXIS 11277, at *5 (Tex. App.—Waco
Dec. 31, 2019, pet. denied) (mem. op).
The record indicates that the Department filed an Original Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship on September 16, 2019. H.D. signed a Waiver of Service,
and he appeared without counsel at the full adversary hearing on September 26,
2019. At the adversary hearing, after H.D. had already testified, the trial court
admonished him of his right to request court-appointed counsel:
So you need to know that the right to request a court-appointed attorney
lasts you throughout this case, so if ever there’s a time it comes up and
you feel like, “You know what, I think I’m going to get an attorney,”
you can always ask and if you are indigent I will appoint a court-
appointed attorney for you.
H.D. did not request an attorney at the hearing. An Acknowledgment of Right to be
Represented by Counsel that was signed by H.D. on October 8, 2019 appears in the
clerk’s record.
H.D. appeared at the status hearing on November 14, 2019 without counsel
and testified. H.D. stated that he signed an acknowledgement of paternity at the time
of G.E.D.’s birth. The trial court acknowledged H.D. as G.E.D.’s legal father and
instructed the Department to create a service plan for H.D. The trial court did not
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admonish H.D. of his right to an attorney or his right to request a court-appointed
attorney if he was indigent.
H.D. then appeared without counsel at the initial permanency hearing on
February 27, 2020. H.D. and others testified, and the record does not contain any
admonishment from the trial court to H.D. as to his right to counsel or his right to
request court-appointed counsel. On June 11, 2020, H.D. again appeared without
counsel via Zoom at a subsequent permanency hearing. After testimony and at the
close of the hearing, the trial court did admonish H.D. that his deadline to apply for
a court-appointed attorney was July 3, 2020.
On September 17, 2020, H.D. appeared without counsel at the bench trial via
Zoom. H.D. was not informed of his right to an attorney before he or others testified,
but at the close of the trial he was advised by the trial court to consult an attorney
regarding an appeal. The trial court signed an Order of Termination, terminating
H.D.’s parental rights under section 161.001(b)(1)(O) and finding that termination
was in G.E.D.’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2).
H.D. appeared without counsel at all stages of the proceeding, and we agree
with the parties that the trial court failed to admonish H.D. of his right to counsel at
the initial status hearing and each permanency hearing in violation of section
263.0061(a)(1). See id. § 263.0061(a)(1). Although the trial court did inform H.D.
during one of the status conferences that his right to counsel and right to appointed
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counsel if he was indigent would continue throughout the process, on the record now
before us, we cannot say that the error was harmless, and we conclude that a reversal
is required, and H.D. is entitled to a new trial. See Tex. R. App. P. 44.1(a)(1); In re
S.R., 2019 Tex. App. LEXIS 11277, at **5-6; see also In re B.C., 592 S.W.3d at 137
(trial court’s noncompliance with section 263.0061 was not harmless error and
reversal was proper where indigent parent unrepresented at parental-rights-
termination trial had parental rights terminated). We sustain Appellant’s issue. We
reverse and remand this proceeding for a new trial.
REVERSED AND REMANDED.
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LEANNE JOHNSON
Justice
Submitted on December 28, 2020
Opinion Delivered January 21, 2021
Before Kreger, Horton and Johnson, JJ.
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