In re R.H.

• Decision Date: 28 July 2015
• Docket Number: NO. 01-14-00874-CV,01-14-00874-CV
• Parties: IN THE INTEREST OF R.H., M.D.J., AND M.K., CHILDREN
• Court: Texas Court of Appeals

IN THE INTEREST OF R.H., M.D.J., AND M.K., CHILDREN

NO. 01-14-00874-CV

Court of Appeals For The First District of Texas

July 28, 2015

On Appeal from the 300th District Court Brazoria County, Texas

Trial Court Case No. 74587

MEMORANDUM OPINION

After a bench trial, the trial court terminated the parental rights of appellant, D.K., to her minor children, R.H., M.D.J., and M.K., named the Texas Department of Family and Protective Services ("DFPS") sole managing conservator of R.H. and M.K., and named M.D.J.'s father sole managing conservator of M.D.J. See TEX. FAM. CODE ANN. § 161.001 (West 2014). In nine issues on appeal, D.K.challenges whether the evidence was legally and factually sufficient to support the termination of her parental rights and whether she was denied counsel when the trial court permitted her counsel to withdraw, refused to appoint new counsel to represent her, and granted a contest to her affidavit of indigence. We affirm.

Background

On January 29, 2013, DFPS received a referral alleging that D.K. had engaged in neglectful supervision of R.H., M.D.J., and M.K. On February 4, 2013, DFPS filed an "Original Petition in Intervention for Protection of a Child for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship." In the petition, which was filed in Harris County, DFPS sought termination of D.K.'s parental rights to her son, M.D.J. The trial court signed an "Order for Protection of a Child in an Emergency and Notice of Hearing" that same day, appointing DFPS as the temporary sole managing conservator of M.D.J. The trial court further found that D.K. was indigent and appointed attorney Ricardo Ramos to represent her. Finally, the trial court set February 10, 2014 as the dismissal date for this case.

In March 2013, DFPS created a Family Service Plan for D.K.

On August 22, 2013, the Harris County court transferred the case to Brazoria County.

On November 21, 2013, Ramos filed a motion to withdraw as counsel. The trial court granted the motion on November 26, 2013. The trial court appointed new counsel, Toni Kersey, on December 12, 2013.

On January 9, 2014, the trial court signed an "Order Retaining Suit on Court's Docket and Setting Hearing Dates," extending the dismissal date for the case to August 11, 2014.

DFPS filed a first amended petition on March 28, 2014, seeking to terminate D.K.'s parental rights to R.H., M.D.J., and M.K.

On May 28, 2014, attorney Kersey filed a "Motion for Withdrawal of Counsel."

On June 4, 2014, DFPS filed a "Second Amended Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship." DFPS sought to terminate D.K.'s parental rights to R.H., M.D.J., and M.K., based on allegations that D.K.: (1) "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to § 161.001(1)(D), Texas Family Code;" (2) "engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, pursuant to § 161.001(1)(E), Texas Family Code;" and (3) "failed to comply with the provisions of a court orderthat specifically established the actions necessary for the mother to obtain the return of the child . . ., pursuant to § 161.001(1)(O), Texas Family Code."

On July 17, 2014, the case was called to trial and witnesses were sworn. The case was continued until September 29, 2014.

On August 18, 2014, DFPS filed a third amended petition, which DFPS admitted at the trial on September 29, 2014, was a trial amendment, again seeking to terminate D.K.'s parental rights and adding several allegations as bases for termination.

The trial court held a bench trial on September 29, 2014. At the conclusion of the hearing, the trial court found the allegations under Texas Family Code section "161.001, Grounds D, E, and O to be true" and found "that the best interest of the children will be served by terminating the parent-child relationship [sic] as they exist between the three children and" D.K. The trial court then appointed DFPS as the permanent managing conservator of R.H. and M.K. and appointed M.D.J.'s father as the permanent managing conservator of M.D.J.

On October 17, 2014, the trial court signed a "Final Order in Suit Affecting the Parent-Child Relationship." In the order, the trial court found that D.K. (1) "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to § 161.001(1)(D), Texas Family Code;" (2) "engaged inconduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, pursuant to § 161.001(1)(E), Texas Family Code;" and (3) "failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children . . ., pursuant to § 161.001(1)(O), Texas Family Code." The trial court further found that termination of D.K.'s parental rights was in the best interest of the children. The trial court therefore terminated D.K.'s parental rights to R.H., M.D.J., and M.K.

On October 28, 2014, D.K., through counsel Blair Parker, timely filed a notice of appeal and a motion for new trial.

On November 6, 2014, D.K. filed a "Motion for Court Appointed Attorney for Appeal Under TFC §107.013," arguing that Parker "was hired by a Good Samaritan to represent [D.K.] solely on a Motion for New Trial" and that she was still indigent. D.K. attached an affidavit of indigency to her motion.

The court reporter filed a contest to D.K.'s affidavit of indigence on November 7, 2014, and DFPS contested D.K.'s claim of indigence on November 10, 2014.

The trial court signed an "Order Granting Contest to Affidavit of Indigence" on December 8, 2014, finding that the "original order of indigency is deemed avoid order . . . based on the fact that there is no affidavit of indigency of [D.K.] filed in the records of this cause."

On December 17, 2014, the trial court denied the motion for new trial.

D.K.'s Representation at Trial

After the case was called for trial, but before evidence began, D.K.'s appointed attorney, Toni Kersey, informed the trial court that she had a matter to put on the record. Kersey stated:

As I informed the Court, Your Honor, my client, [D.K.], has decided she would like to represent herself. She feels that she is the only one that can best put forth her case to you. I have advised her on numerous occasions of settlement offers that were, in my professional opinion, in her best interest, and she has declined those. She has insisted on going forward with the trial on her behalf, representing herself. . . . At this point, she wants to represent herself, Your Honor.

The trial court then questioned D.K.:

The Court: Is that accurate, [D.K.]?

[D.K.]: Yes, sir.

The Court: [D.K.], have you - what's the highest grade level that you achieved?

[D.K.]: Ninth grade.

The Court: Did you leave school?

[D.K.]: I got pregnant with my first child.

The Court: Did you ever go back and get your G.E.D.?

[D.K.]: Yes.

The Court: After you got your G.E.D., did you ever get any college courses?

[D.K.]: I just enrolled in college this year.

The Court: I think I know the answer to this; but I just want to make sure on the record, you haven't gone to law school?

[D.K.]: No, sir.

The Court: Have you studied law?

[D.K.]: No, sir.

The Court: Do you understand that you are at a significant disadvantage by not being a lawyer if you represent yourself, specifically in that you don't know the Rules of Evidence and the Rules of Procedure?

[D.K.]: Yes, sir.

The Court: Do you understand that if I let you represent yourself that you will be held by those same Rules of Procedure and Rules of Evidence that everyone else will be held to?

[D.K.]: Yes, sir.

The Court: Do you understand that?

[D.K.]: Yes, sir.

. . .

The Court: Understanding that and understanding that you're going to be held to the same Rules of Procedure and Rules of Evidence, do you still want to represent yourself in this case?

[D.K.]: I do because I don't feel like nobody is going to fight for my kids like I am.

The Court: All right. Let me give you an example. You might fight for your kids, but it's like walking into a boxing ring with both of your hands tied behind your back.

You may want to get in there and fight, but you're not going to be able to hit anybody because your hands are tied behind your back. Does that make sense?

[D.K.]: Yes, sir.

The Court: Do you still want to get into this boxing ring and fight with your hands tied behind your back?

[D.K.]: No, sir. I do, but I don't. Yes, I do.

The Court: You do?

[D.K.]: (Nods head affirmatively.)

The Court: Okay. So you want me to let Ms. Kersey go?

[D.K.]: Yes.

. . .

The Court: . . . But there's a request that your rights be terminated. Do you understand that?

[D.K.]: Yes, sir.

The Court: And if your rights are terminated, do you understand that's termination for all time?

[D.K.]: Yes, sir.

. . .The Court: Understanding all that, do you still want to proceed representing yourself?

[D.K.]: I do, but I don't because I really don't know all the law. All I know is what I know. I don't know if that's going to count for anything.

The Court: I don't know if it will or if it won't. I can't make this decision for you, [D.K.]. Only you can make that decision.

Ms. Kersey has brought it to my attention because we haven't started the evidence yet, and I'm giving you an opportunity to make that decision.

[D.K.]: I don't want to be stupid, but I want to do it.

The Court: You want to do it yourself?

[D.K.]: Yeah, I'll do it myself.

. . .

The Court: All right. Is anyone threatening you in any way or promising you anything to cut your attorney loose?

[D.K.]: No, sir.

The Court: You're freely and voluntarily doing this, and you want to represent

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