TX Sup Ct: parental right to counsel in termination cases extends to high court appeal

In a significant advancement of the right to counsel movement, the Supreme Court of Texas held in Interest of P.M., 520 S.W.3d 24 (Tex. 2016) (per curiam), that the statutory right to counsel for parents in state-initiated cases involving termination of parental rights extends not just to the Court of Appeals, but also to the discretionary appeal to the Supreme Court of Texas.  This is the second high court to find a right to counsel for a discretionary appeal of this type (the first being in Washington State).  The court also held that even if an appellate court permits counsel to withdraw based on the lack of merit, it must then appoint new counsel for the discretionary appeal to the Supreme Court of Texas. 

The high court examined the statute in question, Tex. Fam. § 107.016(2), which provides that “an attorney appointed under this subchapter to serve as an attorney ad litem for a parent or an alleged father continues to serve in that capacity until the earliest of: (A) the date the suit affecting the parent-child relationship is dismissed; (B) the date all appeals in relation to any final order terminating parental rights are exhausted or waived; or (C) the date the attorney is relieved of the attorney’s duties or replaced by another attorney after a finding of good cause is rendered by the court on the record.” The court held:

We have not addressed whether a right to counsel on appeal includes a right to counsel to bring a petition for review in this Court. But we have indicated generally, in other contexts, that exhaustion of appeals includes review sought in this Court. A few statutes appear to take the same view. We see no reason to depart from that view here. To the contrary, the right to counsel is as important in petitioning this Court for review, and in our considering the issues, as in appealing to the court of appeals.

In the case, the mother’s appointed counsel moved to withdraw after the appeal to the Court of Appeals based on disagreements between her and the mother. The court admonished:

Once appointed by the trial court, counsel should be permitted to withdraw only for good cause and on appropriate terms and conditions. Mere dissatisfaction of counsel or client with each other is not good cause. Counsel’s obligation to the client may still be satisfied by filing an appellate brief meeting the standards set in Anders v. California and its progeny. In light of our holding, however, an Anders motion to withdraw brought in the court of appeals, in the absence of additional grounds for withdrawal, may be premature. Courts have a duty to see that withdrawal of counsel will not result in foreseeable prejudice to the client. If a court of appeals allows an attorney to withdraw, it must provide for the appointment of new counsel to pursue a petition for review. In this Court, appointed counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief. While an appellate court may be equipped to rule on a motion to withdraw in many instances, it may decide instead, as the court of appeals did in this case with a motion unrelated to any Anders claim, to refer the motion to the trial court for evidence and a hearing. An appellate court must ordinarily refer the matter of appointment of replacement counsel to the trial court.

The high court concluded that in the instant case, withdrawal was not based on “mere dissatisfaction” between attorney and client, and so withdrawal was not improper. But it then directed the trial court to appoint counsel to represent the mother in the appeal to the high court.