Right to counsel

Indigent parents have a right to counsel in state-initiated termination of parental rights cases. Tex. Fam. Code Ann. § 107.013(a).

Courts have said that it is reversible error to completely fail to appoint counsel for indigent parents in government actions seeking to terminate parental rights. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App. 2000); see also In re V.L.B., 445 S.W. 3d 802, 806 (Tex. App. 2014).  It may also be reversible error to be deprived of representation during a critical stage of a termination proceeding. Interest of J.B.P., 2022 WL 2960246, *2 (Tex. App. 2022) (unpublished) (citing Cf. In re J.A.B., 562 S.W. 3d 726, 729-300 [Tex. App. 2018] [concluding presumption of prejudice was warranted as to second prong of ineffective assistance analysis when counsel was absent for virtually all of Department's case-in-chief]).  A "critical stage" is "any stage where substantial rights of the parties may be affected," J.B.P. at *2 (internal citation omitted), including hearings, mediations, pretrial conferences, or trials on the merits. Id. (citing V.L.B., 445 S.W.3d 802, 807 [Tex. App. 2014]). 

As to the right to counsel on appeal, several courts have concluded that, although the statute does not expressly provide for representation on appeal, that right attaches. See In re T.V., 8 S.W.3d 448, 449–50 (Tex. App. 1999) (per curiam); In re K.S.M., 61 S.W.3d 632, 633 (Tex. App. 2001) (citing In re T.V.). Suggesting that an action to terminate parental rights implicates fundamental constitutional rights and the state Constitution, the court in In re T.V. held that the right to counsel on one level of appeal existed as a matter of right. 8 S.W.3d at 449–50.  But then, the court of appeals seemed to stake its conclusion on the specific facts; that is, the mother was entitled to appointed counsel on appeal of an order terminating her parental rights based on the following compendium of circumstances: (1) the trial court had determined that the mother was indigent when it appointed counsel for her in the original action and when it later sustained her affidavit of indigence; (3) her previously-appointed counsel had filed a motion for new trial, a statement of appellate points, and a notice of appeal, thereby representing to appellate court that he was to be the mother's counsel on appeal; (4) the record contained no order allowing mother's appointed counsel to withdraw as attorney of record; and (5) the accelerated nature of the appeal from a parental-rights termination placed her trial counsel in the position of being her appellate counsel. The court did not provide a clear doctrinal grounding for its decision, although it cited both Lassiter v. Dep't of Social Services, 101 S.Ct. 2153, 2160 (1981) (on the question of due process under the Fourteenth Amendment) and M.L.B. v. S.L.J., 519 U.S. 102 (1996) (on the question of equal protection under the Fourteenth Amendment); see also, In re J.O.A., 262 S.W.3d 7, 18 (Tex. App. 2008) (relying on criminal practice that trial counsel continues through time limit for filing motion for new trial to find that "trial counsel's duty to represent the interests of an indigent parent in a termination proceeding does not end with trial but, instead, continues until the judgment becomes final or until counsel is expressly discharged by the trial court"); In re H.R., 87 S.W.3d 691, 702–03 (Tex. App. 2002) (relying on statutory construction to extend right to counsel in TPR cases to appeal).

In 2003, the Texas Supreme Court in In re M.S., 115 S.W.3d 534 (Tex. 2003) held that ineffective assistance claims were available to parents who had statutorily-appointed counsel in parental-rights termination suits. The Court, in entertaining the due process claim brought under federal law, held that an ineffective assistance claim is cognizable, and the applicable standard is that from Strickland v. Washington, 466 U.S. 668, 687 (1984).  To demonstrate ineffective assistance under this standard, a parent must show that (a) counsel's performance was deficient and (b) the deficient performance was so prejudicial that the parent was denied a fair and reliable trial. In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009).

The appellate court has stated that "[p]rejudice may be presumed when an indigent parent is denied counsel at a critical stage of the litigation because the adversarial process itself under those circumstances is presumptively unreliable." In the Interest of Z.A.R., No. 05-23-01142-CV, 2024 WL 1521256 at *2 (Tex. Ct. App. Apr. 9, 2024) (citing Lockwood v. Tex. Dep't of Fam. & Protective Servs., No. 03-12-00062-CV, 2012 WL 2383781 at *5 [Tex. Ct. App. June 26, 2012]).