In re C.L.S.

• Decision Date: 24 January 2013
• Docket Number: No. 01–11–00439–CV.,01–11–00439–CV.
• Citation: 403 S.W.3d 15
• Parties: In the Matter of C.L.S.
• Court: Texas Court of Appeals

403 S.W.3d 15

In the Matter of C.L.S.

No. 01–11–00439–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 31, 2012.

Rehearing Overruled Jan. 24, 2013.

Mary Peter Cudd, for L.M.C.

Jimmy Phillips Jr., for R.G.S.

Panel consists of Chief Justice RADACK and Justices HIGLEY and BROWN.

OPINION

SHERRY RADACK, Chief Justice.

In this termination of parental rights case, we consider whether the trial court, having permitted a parent to appear pro se at trial, should have first warned the parent of the dangers of self-representation and obtained a valid waiver of the right to counsel on the record. We reverse and remand.

BACKGROUND

Appellant [“Father”] and appellee [“Mother”] had a child together who was born with a serious heart ailment. Mother and Father, who were not married at the time of the child's birth, filed suit against a drug manufacturer and received a large settlement, the terms of which are confidential. Thereafter, Father filed suit against Mother seeking (1) to establish his paternity and (2) custody of the child. Mother then filed this suit seeking to (1) establish Father's paternity and (2) terminate Father's parental rights. Father was represented in both paternity actions by Faye Gordon.

On November 22, 2010, the trial court issued a scheduling order setting the case for trial on March 8, 2011. The docket sheet shows that Father appeared on that date and was notified that the case on the merits would be set for April 4, 2011.

On April 4, 2011, the parties appeared for trial. Mother was represented by Lloyd Stansbury; the child's ad litem was Mirenda Moorhead; and Father appeared pro se. There is no explanation in the record as to why Father's attorney, Faye Gordon, was not present. The record does not show that Gordon had filed a motion to withdraw. During trial, the following exchange took place during cross-examination:

Mother's counsel: You had the ability to have a lawyer here today; didn't you.

Father: Yes, sir, I did. But he did not show.

Mother's counsel: Well, you don't have an attorney that you have a contract with yet; do you?

Father: Yes, I do.

Mother's counsel: Did you bring the contract with you?

Father: Actually, he has the contract. But he didn't show up and he has $2,500 of my money. So, I got on the phone with him and he told me that the case was too short of a distance—

Mother's counsel: Objection. Nonresponsive, Your Honor.

Trial court: Sustained.

There is nothing in record to explain whether the discussion was in reference to appellant's attorney, Faye Gordon, or some newly hired attorney who had yet to file an appearance. Likewise, there is nothing in the record to explain whether appellant asked to represent himself pro se or whether he was required to do so by the trial court when his counsel failed to appear. There is nothing in the record showing that the trial court admonished Father of the dangers of self-representation or found that Father had waived his right to counsel, either verbally, in writing, or by his actions.

After the parties stipulated to Father's paternity of the child, the issue of terminating his parental rights was tried to the bench, with Father representing himself. At the conclusion of the trial, the trial court found multiple grounds supporting termination, that termination was in the child's best interest, and terminated Father's parental rights.

On May 5, 2011, the trial court made findings of fact and conclusions of law supporting his oral rendition of April 4, 2011. On May 20, 2011, Jimmy Philips, Jr. filed a Notice of Appearance on behalf of Father. Philips also filed a Notice of Payment of Jury Fee on behalf of Father.

On May 26, 2011, the trial court signed a final judgment terminating Father's parental rights. This appeal followed. In three issues on appeal, Father contends that (1) he did not receive 45–days' notice of the April 4 trial setting as required by Tex.R. Civ. P. 245; and the trial court erred by (2) “proceeding to trial when [Father] was unable to secure the presence of his attorney and it was apparent that [he] did not have the ability to represent himself in the termination proceedings,” and (3) “failing to have the court record reflect the reason or reasons that [Father] was proceeding unrepresented by legal counsel in the trial of the termination of his parental rights and if he elected to waive the assistance of legal counsel, that [Father] was aware of the dangers of proceeding without legal counsel.” Because we find it outcome determinative, we address Father's third issue first.

ANALYSIS

In his third issue, Father argues that “the trial court should make the pro se party aware of the dangers of self-representation and the need for adequate attorney representation on the record and to preserve the reasons for lack of representation.” In support, Father argues that, “In criminal cases, the United States Supreme Court has declared that if a serious criminal trial proceeds without an attorney for a defendant, due process requires that the court's record must be clear as to the waiver of the use of an attorney, and that the Defendant understands the pitfalls of representation without legal counsel.” Father's argument, of course, is a reference to the seminal case on self-representation in criminal cases—Faretta v. California, 422 U.S. 806, 807, 818–20, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975).

Faretta recognizes that a criminal defendant has the right to the assistance of counsel, as well as the right to waive counsel and represent himself. SeeU.S. Const. amends. VI & XIV; seeTex.CodeCrim. Proc. Ann. art. 1.05 (Vernon 2005); Faretta, 422 U.S. at 807, 818–20, 95 S.Ct. at 2532;Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App.2002). It further provides that a defendant should be warned of the dangers and disadvantages accompanying the waiver of the right to counsel and decision to self-represent. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541;Hatten, 71 S.W.3d at 333. To be constitutionally effective, such a decision must be made competently, voluntarily, knowingly, and intelligently. Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993); Faretta, 422 U.S. at 835–36, 95 S.Ct. at 2541;Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997). The decision is made voluntarily if it is uncoerced. Collier, 959 S.W.2d at 626. The decision is made knowingly and intelligently if made with a “full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation” Id.

Once a defendant asserts his right to self-representation under Faretta, a trial court judge must ascertain that the defendant is choosing to waive the right to counsel knowingly and intelligently, and must warn the defendant about the dangers and disadvantages accompanying such a waiver. See Faretta, 422 U.S. at 835, 95 S.Ct. 2525;Williams v. State, 252 S.W.3d 353, 356 (Tex.Crim.App.2008). A trial judge must inform the defendant that there are technical rules of evidence and procedure, and that he will not be given any special consideration simply because he has asserted his right of self-representation Williams, 252 S.W.3d at 356. The trial court, however, has no duty to question a defendant about his education, background, or mental history in every case in which a defendant states he wants to proceed pro se. Id.

Only one case in Texas has considered Faretta in connection with a termination of parental rights case. In the case of In re A.H.L., 214 S.W.3d 45, 49 (Tex.App.-El Paso 2006, pet. denied), the State moved to terminate the parental rights of Hernandez, an inmate, and the trial court appointed an attorney to represent him. Id. at 49. Hernandez filed a motion waiving his right to counsel so that he could proceed pro se. Id. After a hearing, at which Hernandez appeared via telephone, the trial court denied his motion. Id. The case then proceeded to trial, after which Hernandez's parental rights were terminated. Id. at 50. On appeal, Hernandez, citing Faretta, argued that the trial court erred in denying him his right to self-representation. Id. at 51. The El Paso court rejected Hernandez's arguments, noting (1) that the historic reason for Faretta—that attorneys were scarce and mistrusted and self-representation was often the only feasible method of defense—was not an issue because an indigent person in a termination has a statutory right to appointed counsel; (2) that the Sixth Amendment, upon which Faretta is founded, does not apply in parental termination cases and provides no Constitutional right to self-representation; and (3) due process does not require the right of self-representation in a termination of parental rights case. Id. at 52. The court also held that Rule 7 of the Texas Rules of Civil Procedure does not provide an inmate with the absolute right of self-representation. Id. SeeTex.R. Civ. P. 7 (“Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.”).

The present case, however, does not involve the same issue as that presented in In re A.H.L. In that case, the court decided the preliminary issue of whether the trial court could deny an inmate in a termination of parental rights case the right to represent himself. In this case, the court has already granted Father the right of self-representation. The question we must decide is whether, having allowed Father to proceed pro se, the trial court should also have had the record reflect that Father was made aware of the dangers of self-representation and had voluntarily waived his right to counsel. Though Faretta is a criminal case, we look to its reasoning to determine whether such warnings should also be required in parental termination cases before permitting self-representation. In explaining the need for what we now refer to as Faretta warnings, the Court provides:

When an accused manages his own defense, he relinquishes, as...