Right to counsel

Courts are required by statute to appoint counsel for parents (including certain alleged fathers) in actions by governmental agencies seeking to terminate parental rights (“TPR”) or install a temporary managing conservator of a child. Specifically, Tex. Fam. Code Ann. § 107.013(a) provides:

(a)  In a suit filed by a governmental entity under Subtitle E in which termination of the parent-child relationship or the appointment of a conservator for a child is requested, the 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 or appointment;

(2) a parent served by citation by publication;

(3)  an alleged father who failed to register with the registry under Chapter 160 and whose identity or location is unknown; and

(4)  an alleged father who registered with the paternity registry under Chapter 160, but the petitioner’s attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.

§ 107.0141, permits appointment of a temporary attorney ad litem “for a limited period beginning at the time the court issues a temporary restraining order or attachment of the parent’s child under Chapter 262 and ending on the court’s determination of whether the parent is indigent before commencement of the full adversary hearing.”  See also Tex. Fam. Code Ann. § 262.102(d), 262.201(c) (requiring notice to parent of right to counsel in when managing conservator sought).

In addition, when the department files suit “…requesting the court to render a temporary order requiring the parent, managing conservator, guardian, or other member of the child’s household to” participate in services and to permit the child, and any siblings, to receive services, then “the court shall appoint an attorney ad litem to represent the interests of a parent for whom participation in services is being requested immediately after the filing but before the hearing to ensure adequate representation of the parent. The attorney ad litem for the parent shall have the powers and duties of an attorney ad litem for a parent under Section 107.0131.” § 264.203(h). Tex. Fam. Code Ann. § 264.203 (i) requires that the court notify a parent, prior to commencement of the hearing, of their right to be represented by an attorney, and the right of an indigent parent who appears in opposition to the motion to court-appointed counsel. § 264.203(j) concerns the determination of indigence. Tex. Fam. Code Ann. § 107.001(2) defines “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 § 261.307(a)(2)(C) states that the department must provide verbal notification of the right to counsel for indigent parents where “the department seeks a court order in a suit filed under Section 262.101 [Filing petition before taking possession of child] or 262.105 [Filing petition after taking possession of child in emergency] or a court order requiring the person to participate in services under Section 264.203.”

And Tex. Fam. Code § 264.902(g)(2)(B)(ii) provides a right to appointed counsel for indigent parents in matters related to extensions of parental child safety placement agreements where the department seeks a court order to require the parents to participate in services.

In 2014, a proposal was submitted to the Texas Supreme Court to truncate the parent’s right to counsel.  The proposal would have changed a Texas court rule such that the parent’s counsel would be automatically dismissed 30 days after the dispositional phase.  The NCCRC fiiled comments opposing the rule change and organized other advocates to chime in.  In October 2015, the Court announced it would reject the proposed rule change.