In re E.A.F.
Decision Date | 03 April 2014 |
Docket Number | No. 14–13–00869–CV.,14–13–00869–CV. |
Citation | 424 S.W.3d 742 |
Parties | In the Interest of E.A.F., a Child. |
Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
William M. Thursland, Houston, for Appellant.
Sandra D. Hachem, Houston, for Appellee.
Panel consists of Justices McCALLY, BUSBY, and DONOVAN.
Appellant, E.F., appeals from the decree terminating his parental rights to the child, E.A.F., raising three issues. In his first issue, appellant asserts that the trial court should have warned him of the dangers of self-representation. In his second issue, appellant asserts the evidence is insufficient to support the finding that termination of his parental rights is in the child's best interest. Appellant asks in his third issue that we review the trial court's conservatorship determination if we conclude the termination finding must be reversed. We affirm.
The Texas Department of Family and Protective Services (the Department) filed suit on April 16, 2012, seeking protection of the child, E.A.F. The record reflects that appellant, who was not married to the child's mother and did not live with her, discovered his then one-year-old daughter home alone while the mother was at work. Upon arriving at the mother's apartment, he heard the child crying and broke down the door. Appellant notified the Department and the police, and he left the scene with the child.
The evidence in the record reflects that the Department's investigation of the father's background revealed that appellant's parental rights to another child had been terminated in Bell County after the child was severely injured. That child's mother was later convicted for injuring the child. Appellant also has a conviction for assault of a military police officer at Fort Hood. Based on this history, the Department was appointed temporary managing conservator of E.A.F., and the child was placed in the home of her paternal aunt (appellant's sister), where appellant also resided.
There is evidence in the record of an incident in which appellant threatened his sister in whose care the child was placed, and the police were summoned. Appellant's visits with the child at the aunt's home were suspended. In January of 2013, the Department recommended appellant have visitation with the child at the CPS office, but the record reflects appellant only had one visit at the office. The Department's case worker testified that appellant arrived 45 minutes late for his scheduled visit with the child and became upset, hostile, and confrontational when he was told the visit could not be extended. After problems arose with the aunt being unavailable for home visits by the ad litem, the child was placed in a foster home.
On April 11, 2013 the case was called to trial. Prior to calling its first witness, counsel for the Department asked appellant's court-appointed counsel, Pat Shelton, if he still represented appellant. Shelton responded, “my client has released me.” Shelton explained that he was ready to proceed with trial and stated “It seems like there would be a full trial for the father that's required.” He requested some clarification from the trial court before the trial started, however. Specifically, the following colloquy occurred:
Mr. Shelton: But I need to know whether—I'd be happy to be here but—it's got the Court that assigned me. I got my client, who on the telephone has released me. I'm kind of in a little limbo right now.
The Court: What do you want to do?
Mr. Shelton: I'm ready to proceed.
The Court: Okay.
Mr. Shelton: I think he has a legitimate case.
The Court: Okay. So you don't want a lawyer?
[Appellant]: I want to represent myself.
The Court: Okay. Well you can do that. All right. You're released.
Mr. Shelton: Thank you.
The Court: All right. I guess we're ready.
The record does not reflect that Shelton filed a motion to withdraw as counsel or that the trial court signed an order granting withdrawal.
The Department then called its first witness, and appellant represented himself at trial. The trial court signed an interlocutory decree terminating appellant's parental rights on June 18, 2013, and continued the trial concerning the mother until August 15, 2013.1 On September 10, 2013, the trial court signed a final decree terminating the mother's parental rights, making the interlocutory order signed June 18, 2013, final. Appellant's counsel then filed a timely notice of appeal from the final termination decree. 2
The involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex.App.-Houston [14th Dist.] 2012, no pet.). But while parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.2002). “Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.” Id.
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. SeeTex. Fam.Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.2002). “Clear and convincing evidence” means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code § 101.007; accord In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex.App.-Houston [14th Dist.] 2008, no pet.).
Appellant argues in his first issue that the trial court's judgment terminating his parental rights should be reversed because he was allowed to represent himself without being provided warnings about the dangers of self-representation. Appellant asks that we apply the due process protections announced in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), a criminal case, to a parent facing the involuntary termination of his parental rights.
In Faretta, the United States Supreme Court recognized that a criminal defendant has the right to the assistance of counsel under the Sixth Amendment, as well as the right to waive counsel and represent himself. Id. at 807, 95 S.Ct. at 2527. However, once the defendant asserts his right to self-representation, a trial court judge must ascertain that he chooses to waive the right to counsel knowingly and intelligently, and must warn the defendant of the dangers and disadvantages accompanying such a waiver. Id. at 835–36, 95 S.Ct. at 2541.
In arguing for an extension of the requirement for Faretta warnings to this civil termination proceeding, appellant has analogized this case to a criminal case. Appellant notes that because of the importance of a parent's interest in his parental rights, courts have sometimes found guidance from criminal cases in termination proceedings. See, e.g., In re M.S., 115 S.W.3d 534, 544–45 (Tex.2003) ( ).
The United States Supreme Court has recognized that, in contrast to criminal cases, there is no constitutional right to appointed counsel in all termination proceedings. See Lassiter v. Dep't of Social Servs., 452 U.S. 18, 27–32, 101 S.Ct. 2153, 2159–62, 68 L.Ed.2d 640 (1981). The Court held that appointed counsel was not routinely required to assure a fair adjudication; instead, a case-by-case determination of the need for counsel would suffice. 452 U.S. at 32, 101 S.Ct. at 2162.
Texas has adopted a statutory scheme for providing counsel to assist indigent parents, mandating 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 a governmental entity. Tex. Fam.Code § 107.013(a)(1). Specifically, the Family Code provides that the trial court “shall appoint an attorney ad litem to represent the interests of: (1) an indigent parent of the child who responds in opposition to the termination....” Tex. Fam.Code Ann. § 107.013(a)(1) (emphasis supplied). The appointment of an attorney ad litem is required whether or not the indigent parent requests an attorney. See In re J.M., 361 S.W.3d 734, 739 (Tex.App.-Amarillo 2012, no pet.) (the trial court committed reversible error by proceeding without appointing an attorney ad litem, even though appellant did not request an attorney) .
The Texas Family Code defines an “attorney ad litem” as “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” Tex. Fam.Code § 107.001(2). The Family Code sets out the powers and duties of an attorney ad litem appointed to represent the interests of a parent in a termination proceeding brought by a government entity. SeeTex. Fam.Code § 107.0131. Among these duties, an ad litem is required to “ensure competent representation at hearings, mediations, pretrial matters, and the trial on the merits” and to “attend all legal proceedings in the suit.” Id. at (a)(1)(C), (G). An attorney ad litem appointed for a parent under Chapter 107 who fails to perform the duties required by Section 107.0131 is subject to disciplinary action. SeeTex. Fam.Code § 107.0133.
The Family Code provides that the attorney ad litem's duties continue until the termination proceedings are dismissed or finally concluded unless the attorney is relieved or replaced “after a finding of good cause is rendered by the court on the record.” Tex....
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