Texas app ct: dismissal of appointed atty due to alleged non-indigence was improper

In Interest of I.C., The Texas DFPS moved to dismiss a mother’s appointed attorney in an abusen/neglect case a year after the appointment on the grounds that the mother was no longer indigent.  Their motion had no information as to why they thought she was no longer indigent, and the affidavit from her that they attached to the motion stated that “she currently had a job at Wal-Mart making $11.50 an hour and paid $500 a month in rent; that she could not borrow money to hire a lawyer; that she had no vehicle, furniture, appliances, television, stereo, jewelry, or cash; and that she neither paid nor received child support.”  The trial court granted the motion without providing any reasoning. 

A few months later, DFPS questioned the mother as to her finances and she

testified that she had recently left her Wal-Mart job for a better job at a call center but that although she had gone through the hiring process and was ‘affiliated’ with the new employer, she had not yet started the work; she was not currently on unemployment; she had moved in with her brother and was not paying rent; and she paid $40 monthly for her cell phone, which her brother helped her pay for. She further testified that she had not received a stimulus check and did not know why; she had some furniture that she could sell if she wanted to; she had some family members from whom she could borrow money; her brother worked as a welder and she did not know how much money he earned in a month; she did not own any vehicles; and she had no other resources or assets.

Based on this testimony, the trial judge inexplicably found again that she was not indigent. 

On appeal, DFPS conceded the dismissal of the attorney and failure to appoint a new attorney after hearing her testimony was reversible error.  The Texas Court of Appeals pointed to the fact that the trial judge used a “generic form order that contained no detailed findings about A.R.’s ability to pay and did not articulate any other good cause for discharging her court-appointed attorney.”  The Court of Appeals also observed that the fact the mother had a full-time hourly job was “not the standard for determining indigency; for at least seventy years, a party’s indigency has been determined by looking at whether ‘the record as a whole show[s] by a preponderance of the evidence that the applicant would be unable to pay the costs … if he [or she] really wanted to and made a good-faith effort to do so.’”  As to her testimony at the hearing:

A.R. testified that she had been unemployed for two weeks because she found a new, better job but had not yet started it … She had no vehicle that she could sell or use for collateral. A.R. stated that she had furniture that she could sell, but there was no testimony about the condition or estimated value of that furniture and no testimony that A.R. had any other assets. See Goffney, 554 S.W.2d at 159 (stating that rules allowing indigent parties to proceed without paying costs “do not require the litigant to borrow money [that] cannot be repaid except by depriving the litigant of the necessities of life”). A.R. could pay her $40 cell phone bill only with her brother’s help. A.R. testified that she paid no rent while living with her brother, but the Department did not ask if she had any other debts or other non-household bills to pay other than her cell phone. Although A.R. testified that she could borrow money from her brother, it is well-established that a trial court must consider only the alleged indigent party’s financial condition, not those of her relatives or friends.

While the Court of Appeals acknowledged that the trial court judge didn’t have to believe the mother’s testimomy, “[The] associate judge had to have sufficient evidence on which to base a finding of a material and substantial change or other good cause for dismissing A.R.’s attorney. Other than A.R.’s affidavits and testimony, the record contains no other evidence about A.R.’s financial circumstances at the time of the final hearing or on the date that the trial court had previously dismissed her attorney.”