In the Interest of V.L.B., a Child
445 S.W.3d 802
| Tex. App. | 2014Background
- Mother K.M. was arrested in Nov. 2012; her four‑month‑old daughter V.L.B. was taken into DFPS custody after a neglectful‑supervision referral and temporarily placed with the maternal grandmother.
- DFPS filed for temporary conservatorship and termination in Feb. 2013; the court’s temporary orders made no indigency finding for K.M. at that time.
- K.M. appeared pro se at several status hearings and filed an affidavit of indigence on Dec. 2, 2013, one week before the scheduled termination trial.
- Trial began Dec. 10, 2013; the court proceeded with witness testimony and examined K.M. while she was unrepresented, although the court noted the filed indigency affidavit during trial.
- The court recessed, later appointed counsel, resumed in Jan. 2014, denied a continuance, and terminated K.M.’s parental rights; the Court of Appeals found the reporter’s record did not support that counsel had represented K.M. during the Dec. 10 proceedings.
Issues
| Issue | K.M.'s Argument | DFPS's Argument | Held |
|---|---|---|---|
| Whether the trial court violated statutory right to appointment of counsel by proceeding to trial before ruling on affidavit of indigence | K.M.: Filing affidavit triggered mandatory appointment; court should have appointed counsel and waited before critical stage (trial) | DFPS: Issue was waived because appointed counsel did not timely object to earlier proceedings | Held: No waiver; court erred by not addressing indigency and appointing counsel before the termination trial commenced |
| Whether proceeding without counsel violated due process | K.M.: Proceeding to merits without counsel denied effective representation and procedural protections | DFPS: Implicitly contended proceedings were permissible or waived | Held: Proceeding without first appointing counsel before critical stage implicated due process and required reversal of mother’s termination |
| Whether appointment delay requires automatic reversal or harmless‑error analysis | K.M.: Delay undermined counsel's ability to perform statutorily required preparation and duties | DFPS: (Implicit) any later appointment cured defect or error was not reversible | Held: Delay before a critical stage (trial) can irreparably impair defense; here reversal and remand for new trial of mother’s termination appropriate |
| Scope of remedy given other unchallenged termination findings | K.M.: Requested reversal of termination against her | DFPS: Moved to clarify that only mother’s termination should be reversed, leaving other fathers’ terminations intact | Held: Court reversed only the portion terminating K.M.’s parental rights and remanded that portion for a new trial; remainder of judgment left undisturbed |
Key Cases Cited
- In re B.L.D., 113 S.W.3d 340 (Tex. 2003) (discussing preservation and waiver principles for appellate review)
- In re B.G., 317 S.W.3d 250 (Tex. 2010) (recognizing the gravity of parental‑termination proceedings)
- In re C.L.S., 403 S.W.3d 15 (Tex. App.—Houston [1st Dist.] 2012) (addressing trial court duties before permitting pro se parental representation)
- Odoms v. Batts, 791 S.W.2d 677 (Tex. App.—San Antonio 1990) (holding failure to appoint counsel for indigent parent constitutes reversible error)
- In re C.D.S., 172 S.W.3d 179 (Tex. App.—Fort Worth 2005) (reversing termination where counsel was not appointed after affidavit of indigence)
- In re J.M., 361 S.W.3d 734 (Tex. App.—Amarillo 2012) (no magic words required to show opposition to termination and trigger counsel inquiry)
- In re T.R.R., 986 S.W.2d 31 (Tex. App.—Corpus Christi 1998) (parental statements can require inquiry into indigency and counsel appointment)