In the Interest of J.R.P. and M.C. and R.P.

• Decision Date: 02 August 2001
• Docket Number: No. 13-99-811-CV,13-99-811-CV
• Parties: (Tex.App.-Corpus Christi 2001) IN THE INTEREST OF J. R. P., M. C. AND R. P., JR., MINOR CHILDREN
• Court: Texas Court of Appeals

Page 147

55 S.W.3d 147 (Tex.App.-Corpus Christi 2001)

IN THE INTEREST OF J. R. P., M. C. AND R. P., JR., MINOR CHILDREN

No. 13-99-811-CV

Court of Appeals of Texas, Corpus Christi

August 2, 2001.

On appeal from the 377th District Court of Victoria County, Texas.

John A. George, Julie Hale, Rodney F. Durham, Joyce M. Heller, Victoria, for appellants.

M.P. "Dexter" Eaves, District Attorney, Michael M. Kelly, Assistant District Attorney, Victoria, for appellee.

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

OPINION

Opinion by Justice Rodriguez

This is an appeal of a child custody case. Two appellants appeal on separate grounds. Appellant Monica, the children's mother, appeals from an order terminating her parental rights to her three children. Appellant Joe, the children's grandfather, appeals from an order granting permanent managing conservatorship of the children to the Texas Department of Protective and Regulatory Services (TDPRS). We affirm.

Appellant Monica

On September 22, 1995, TDPRS filed its original petition in suit affecting the parent-child relationship. TDPRS alleged Monica knowingly placed and allowed the children to remain in conditions that endangered their physical and emotional well-being. See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2001). Specifically, TDPRS alleged that Monica allowed her boyfriend to beat the children. TDPRS initially requested temporary managing conservatorship of the children. The petition set out that reasonable efforts would be made to reunify the family. If that was not possible, however, TDPRS requested termination of parental rights and appointment as managing conservator. On October 6, 1995, the trial court entered a temporary order granting TDPRS temporary managing conservatorship of the children.

On December 4, 1995, Monica appeared at a status hearing. The trial court advised Monica:

unless [she was] willing and able to provide the children with a safe environment within the reasonable period of time specified in the plan, [her] parental and custodial duties and rights may be subject to restriction and the children may not be returned to [her] until satisfactory completion of the plan.

Additional hearings were conducted; but TDPRS maintained temporary managing conservatorship because Monica failed to show any significant improvement towards meeting the conditions set forth in the family service plan. ¹

Monica filed an affidavit of indigency and request for appointed counsel in May 1997. On May 23, 1997, the trial court appointed counsel to represent Monica. ² Eighteen months later, on November 1, 1999, and after subsequent reports were filed, Monica's parental rights were terminated and the court granted permanent managing conservatorship of the children to TDPRS.

By one point of error, Monica contends the trial court committed reversible error by not appointing counsel immediately after TDPRS filed its original petition. Monica alleges section 107.103 of the Texas Family Code requires such appointment. Tex. Fam. Code Ann. § 107.103 (Vernon Supp. 2001).

Section 107.013 (a)(1) provides that the court shall appoint an attorney to represent an indigent parent who opposes a suit involving the termination of their parent-child relationship. See id. Notably, this section does not specify a time frame for appointment of counsel. Rather, it merely states that the court shall appoint an attorney to an indigent person who responds in opposition to the termination. See id. This is in sharp contrast to other sections of the family code requiring immediate appointment of counsel when a suit affecting the parent-child relationship has been filed. See, e.g., Tex. Fam. Code Ann. § 107.001(b) (Vernon Supp. 2001) (requiring appointment of guardian ad litem for the child in a termination proceeding "immediately after the filing of the petition but before the full adversary hearing"); Tex. Fam. Code Ann. § 107.012 (Vernon 1996) (requiring immediate appointment of counsel to represent children); Tex. Fam. Code Ann. § 161.003(b) (Vernon 1996) (requiring immediate appointment of counsel to represent a mentally ill parent).

While several courts have confirmed the mandatory nature of section 107.013(a)(1), none have taken up the question of when appointment of counsel must occur. See e.g., In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.--Corpus Christi 1998, no pet.); In re B.R., 950 S.W.2d 113, 115-16 (Tex. App.--El Paso 1997, no writ);Ybarra v. Tex. Dept. of Human Svcs., 869 S.W.2d 574, 580 (Tex. App.--Corpus Christi 1993, no writ);Odoms v. Batts, 791 S.W.2d 677 (Tex. App.--San Antonio 1990, no writ). The courts that have addressed this issue have viewed it more in terms of whether the party was provided reasonable access to counsel. See In re B.R., 950 S.W.2d at 115-16 (holding that record was devoid of evidence that party was denied reasonable access to counsel where attorney had been appointed for inmate over three years prior to time of trial but where inmate contends that he only conferred with attorney in person for 1 ½ hours immediately preceding the trial); cf. Ybarra, 869 S.W.2d at 580 (holding that trial court did not err in failing to appoint counsel where party did not request appointed counsel and was represented by retained counsel at trial).

In this case, TDPRS filed its petition of termination on September 22, 1995. Monica did not request counsel or claim that she was indigent when the original petition was filed. She did not file her affidavit of indigency or request appointment of counsel until May 1997. Significantly, the court appointed Monica counsel immediately upon her request and notification of indigency. On September 3, 1997, she filed her answer opposing the suit. The final hearing on the termination of Monica's parental rights was held on December 7, 1998, approximately eighteen months after Monica had been appointed counsel. After hearing testimony and receiving evidence, the trial court took the matter under advisement. On March 18, 1998, some twenty-two months after counsel had been appointed, the court signed the judgment terminating Monica's parental rights.

Because Monica was appointed counsel after she filed her notice of indigency and was represented for eighteen months prior to the termination of her parental rights, we conclude that the trial court complied with the requirements of section 107.013 of the Texas Family Code. See In re B.R., 950 S.W.2d at 116 (Tex. App.--El Paso 1997, no writ). We decline to create a precise requirement as to when counsel must be appointed in a termination proceeding.

Monica further contends the trial court's failure to appoint her counsel immediately after TDPRS filed its original petition violates her constitutional rights. In Lassiter v. Dept. of Social Svcs. of Durham Co., 452 U.S. 18, 24-32 (1981), the Supreme Court concluded that although no absolute right to counsel exists for an indigent parent, under the Due Process Clause of the Fourteenth Amendment, fundamental fairness may require the appointment of counsel in a termination proceeding. Lassiter, 452 U.S. at 31-32. This Court recognizes that the right of a mother to parent her child is fundamental and implicit in the Constitution, and is subject to strict scrutiny when the relationship is infringed upon. See Hollick v. Smith, 685 S.W.2d 18 20 (Tex. 1985). However, the Supreme Court, in Lassiter, refused to conclude that the Constitution requires the appointment of counsel in every parental termination hearing. Lassiter, 452 U.S. at 31.

The record reflects that Monica did not request counsel at the time the original petition was filed and upon request, received appointed counsel immediately upon her request, and was represented by appointed counsel for approximately eighteen months prior to the final termination hearing and twenty-two months before the judgment terminating her parental rights was signed. Based on the facts and our analysis set out above, we conclude the trial court did not violate Monica's constitutional rights by not immediately appointing counsel after the filing of the original petition.

Appellant Monica's sole issue is overruled.

Appellant Joe

On July 27, 1998, Joe filed a petition of intervention. The petition identified Joe as the biological grandfather of the children. The petition proposed that in the event Monica's parental rights were terminated, it would be in the best interest of the children that Joe be appointed sole managing conservator of the children. Alternatively, the petition proposed that it would be in the best interest of the children that Joe be granted reasonable access to his grandchildren. On November 1,1999, the trial court named TDPRS permanent managing conservator, and granted Joe access to his grandchildren.

By his first two issues, Joe contends that the trial court abused its discretion in appointing TDPRS as the permanent managing conservator of the children. Joe challenges the sufficiency of the evidence to support the court's finding that the appointment of TDPRS was in the best interest of the children. Joe argues the trial court failed to take into account evidence that would have concluded that the best interests of the children would be better served by appointing Joe as permanent managing conservator of the children.

In family law cases involving custody issues, we review a trial court's best interest findings for an abuse of discretion. See In re Jane Doe 2, 19 S.W.3d 278, 281 (Tex. 2000). The trial court has wide latitude in determining the best interests of a minor child. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (citations omitted). We will reverse the judgment of the trial court only when it appears from the record as a whole that the court has abused its discretion. See id.; Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st...