                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-12-00286-CV

         IN THE INTEREST OF P.J.B., A.B., AND I.B., CHILDREN



                       From the County Court at Law No. 2
                             Johnson County, Texas
                           Trial Court No. D201100008


                           MEMORANDUM OPINION


       Christal B. appeals from the termination of her parental rights to her children,

P.J.B., A.B., and I.B. TEX. FAM. CODE ANN. § 161.001 (West 2008). Christal complains

that the trial court erred by not appointing counsel to her until approximately eight

months into the proceedings and by not determining that the Indian Child Welfare Act

is applicable to this case and applying its requirements. We abated this cause for the

trial court to determine whether the Indian Child Welfare Act applies, and the trial

court and the parties now agree that it does not. Because we find no error, we affirm

the judgment of the trial court.
Appointment of Counsel

        Christal complains that the trial court abused its discretion by failing to appoint

counsel to her until approximately eight months after the removal of P.J.B. and A.B.

Christal and Michael became involved with the Department of Family and Protective

Services Family-Based Safety Services beginning in the summer of 2009.1 P.J.B. and A.B.

were voluntarily placed with the paternal grandmother in the summer of 2010. P.J.B.

and A.B. were ultimately removed from the paternal grandmother in January of 2011

after an emergency hearing and the Department was named the temporary managing

conservator of the children. At the time of the removal, Christal was pregnant with I.B.

        The adversary hearing was conducted on January 21, 2011; however, Christal did

not attend because of car trouble.                   In March of 2011, at a status hearing Christal

informed the trial court that she wanted the children to remain in foster care until she

and Michael were able to finish their services. The Department's permanency plan at

that time was family reunification.

        Christal participated in her required services and was demonstrating adequate

progress. Christal did not attend the scheduled permanency hearing in July of 2011

because she had given birth to I.B. the same day as the hearing. However, at a family

group conference an agreement was reached to leave P.J.B. and A.B. in foster care at



1 Michael is the father of all three children and was married to Christal during the proceedings. Michael
signed a voluntary relinquishment of parental rights and his parental rights were terminated. Michael
did not appeal the termination and is not a party to this appeal.

In the Interest of P.J.B., A.B. and I.B., Children                                                Page 2
that time. Christal and Michael were allowed to take I.B. home from the hospital

because of their progress; however, I.B. was removed from the home in August of 2011

because of domestic violence and drug use.

        On August 18, 2011, the Department changed its permanency plan to unrelated

adoption and began actively seeking termination of Christal and Michael's parental

rights. At the emergency hearing on the removal, which both parents attended, the trial

court asked Christal and Michael about whether they had or needed an attorney to

represent them. Both parents asked for an attorney to be appointed and the trial court

allowed them to fill out a request after the emergency hearing. An adversary hearing

was conducted on August 29, 2011, after which the trial court determined that Christal

qualified for a court-appointed attorney and trial counsel was appointed that same day.

The original dismissal deadline was January 9, 2012; however, upon motion by

Christal's counsel, the trial court extended the dismissal deadline to July 6, 2012. The

final hearing was conducted by the trial court on June 15, 2012, which was nearly ten

months after the appointment of trial counsel.

        Christal complains that the trial court violated her rights to due process by

failing to appoint trial counsel for her until August of 2011. Due process under the

Fourteenth Amendment protects individuals against arbitrary government acts

regardless of the fairness of the procedures used to implement them. The United States

Supreme Court held in Lassiter v. Department of Soc. Servs., 452 U.S. 18, 31-32, 68 L. Ed.


In the Interest of P.J.B., A.B. and I.B., Children                                  Page 3
2d 640, 652, 101 S. Ct. 2153 (1981) that the due process clause does not require

appointment of counsel in every parental termination proceeding, and the decision

whether due process calls for appointment of counsel is best left to the trial court,

subject to appellate review.            In our due process review, we look to the facts and

circumstances of this case to determine whether the trial court's action was arbitrary

and a violation of Christal's due process rights. See Lassiter, 452 U.S. at 32.

        The appointment of an attorney for indigent parents in a termination case filed

by a governmental entity is mandated by statute. Section 107.013(a)(1) of the Texas

Family Code provides that "[i]n a suit filed by a governmental entity in which

termination of the parent-child relationship is requested, the court shall appoint an

attorney ad litem to represent the interests of . . . an indigent parent of the child who

responds in opposition to the termination." TEX. FAM. CODE ANN. § 107.013(a)(1) (West

Supp. 2011); see also In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000,

pet. denied).       However, the timing of appointment of counsel to indigent parents

appearing in opposition to termination is a matter within the trial court's discretion. In

re M.J.M.L., 31 S.W.3d at 354.

        For the first eight months of the case, Christal was participating in services with

the Department and expressed her desire to the trial court that the children remain in

foster care as she worked toward the Department's goal of family reunification. It was

not until August after the removal of I.B. and the Department's permanency goal


In the Interest of P.J.B., A.B. and I.B., Children                                    Page 4
changed to termination that Christal's position became opposite to that of the

Department. The trial court advised Christal of her right to apply for appointed counsel

and appointed her counsel the same day of the adversary hearing in August of 2011.

        Further, the trial court extended the dismissal date for the case by approximately

six months at the request of her trial counsel. Christal's trial counsel then had over nine

months to prepare for the final hearing, including conducting discovery. Christal does

not allege that her trial counsel was unprepared or ineffective due to a lack of time to

prepare, nor does she challenge the sufficiency of the evidence to sustain the

termination of her rights. Christal has made no showing of harm in that any failure to

appoint counsel earlier in the proceedings probably caused the rendition of an

improper judgment. TEX. R. APP. P. 44.1(a)(1). We do not find that the trial court's

actions were arbitrary or otherwise constituted a due process violation. Nor do we find

that the trial court abused its discretion by not appointing counsel earlier in the

proceedings. We overrule issue one.

Indian Child Welfare Act

        Christal complains in her second issue that the trial court erred by failing to

require the Department to fully comply with the notice provisions of the Indian Child

Welfare Act (ICWA). See 25 U.S.C.A. §§ 1901-1963 (2001). The Department agreed and

asked this Court to abate this proceeding for the trial court to determine whether the

ICWA applies. In re J.J.C. and A.M.C., 302 S.W.3d 896, 902 (Tex. App.—Waco 2009).


In the Interest of P.J.B., A.B. and I.B., Children                                   Page 5
This appeal was abated and the trial court has determined that the ICWA does not

apply to the children. Appellate counsel for Christal also conceded to the trial court

that the ICWA does not apply. Based on the record before us, we agree with the trial

court. Because Christal's complaint was solely that the Department did not provide

proper notice or respond to a tribe's request for further information, now that proper

notice has been sent and the trial court has made its determination, we will overrule

issue two.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.




                                                     TOM GRAY
                                                     Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 28, 2013
[CV06]




In the Interest of P.J.B., A.B. and I.B., Children                                     Page 6
