Texas Supreme Court: parent not advised of right to counsel

In In the Interest of B.C., 2019 Tex. LEXIS 1268 (Tex. 2019), the Supreme Court of Texas considered a case where a parent in a child removal hearing appeared without counsel.  The mother never had counsel but also never professed to be indigent.  After the court terminated her parental rights, she filed a notice of appeal and affidavit of indigency.  The Court of Appeals reversed on the ground that although the mother had never claimed to be indigent at trial, there was sufficient information in the record so as to put the trial court on notice that the mother was potentially indigent and require further investigation.  The Supreme Court of Texas disagreed, pointing out that Tex. Fam. Code § 107.013(d) states:

The court shall require a parent who claims indigence under Subsection (a) to file an affidavit of indigence in accordance with Rule 145(b) of the Texas Rules of Civil Procedure before the court may conduct a hearing to determine the parent’s indigence under [section 107.013] . . . . If the court determines the parent is indigent, the court shall appoint an attorney ad litem to represent the parent.

Since the mother had not filed an affidavit, the Court held that the trial court was under no obligation to investigate.  However, the Court also pointed out that Tex. Fam. Code § 263.0061 requires the following:

At the status hearing under Subchapter C and at each permanency hearing under Subchapter D held after the date the court renders a temporary order appointing the department as temporary managing conservator of a child, the court shall inform each parent not represented by an attorney of:

(1) the right to be represented by an attorney; and

(2) if a parent is indigent and appears in opposition to the suit, the right to a court-appointed attorney.

In this case, the mother was notified at the first hearing of her right to appointed counsel if indigent, but not in subsequent hearings, “including at one of the most critical points in the proceeding—the permanency hearing immediately before trial, when the Department expressed the necessity of moving forward with the impending termination trial due to the statutory dismissal deadline.”  The Court concluded:

Given these circumstances, and absent a dispute that Mother truly is indigent, noncompliance with section 263.0061 was not harmless and reversal is required … Parents face a complex and nuanced family-law system that is challenging to navigate without the guidance of counsel. Considering the importance of the fundamental rights at issue, the Legislature has adopted important safeguards in sections 107.013 and 263.0061 to help ensure parents will not be deprived of their parental rights without due process of law.  While the trial court cannot force parents to retain counsel or follow the procedures required for establishing indigency, the statutory framework mandates that courts repeatedly inform unrepresented parents about their statutory rights so they will have an adequate opportunity to understand and invoke those rights.