in the Interest of J.M., a Child
361 S.W.3d 734
| Tex. App. | 2012Background
- Petition filed 1/11/2010 seeking termination of Melissa's rights to J.M. and V.K.; J.M. placed in DFPS custody under an order for protection.
- Melissa agreed to temporary orders; DFPS named managing conservator of J.M. while Melissa remained possessory conservator of V.K.
- Melissa was incarcerated at various times during proceedings; final adjudication of guilt and six-year sentence occurred prior to final hearing.
- Department sought termination, but reunification was the stated goal in early plans; Melissa largely did not participate in reviews after 10/2010.
- On final hearing date, Melissa appeared in court prior to trial; evidence included Petitioner’s Exhibit 65 (criminal judgment) showing indigent status for criminal proceedings.
- Trial court terminated Melissa’s parental rights to J.M.; an attorney ad litem was appointed after the judgment on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to appoint counsel when parent appears in person opposed to termination | Melissa opposed termination; contends indigence inquiry required | Department argues no duty absent written request | Reversible error for not appointing ad litem |
| Effect of not advising right to jury trial and indigency inquiry | Melissa did not request counsel; record shows opposition | No formal indigency inquiry required without request | Not addressed/raised on remand |
Key Cases Cited
- Stanley v. Illinois, 405 U.S. 645 (U.S. Supreme Court 1972) (parents have constitutional rights in the parent-child relationship)
- In re G.M., 596 S.W.2d 846 (Tex. 1980) (parental rights include right to representation)
- Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574 (Tex.App.—Corpus Christi 1993) (whether counsel must be appointed when parent does not request)
- Odoms v. Batts, 791 S.W.2d 677 (Tex.App.—San Antonio 1999) (appointment of counsel when parent files an answer and asserts indigence)
- In re T.R.R., 986 S.W.2d 31 (Tex.App.—Corpus Christi 1998) (sufficiency of parent’s statements to trigger indigency inquiry)
- In re T.C.B., (Tex.App.—El Paso Aug. 7, 2003) (Tex.App.) (father sought appointment of attorney; not designated for publication)