
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-262-CV
 
IN THE INTEREST OF J.M.C., A CHILD
 
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FROM THE 323RD DISTRICT COURT OF
TARRANT COUNTY
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OPINION
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Introduction
Jessica C. appeals from the termination of
her parental rights in her child, J.M.C. In seven issues, appellant asserts that
the termination decree is void because the trial court lost jurisdiction over
the case by failing to hold a full adversary hearing or properly extend the
temporary order giving the Texas Department of Protective and Regulatory
Services (TDPRS) possession of J.M.C.; the trial court improperly denied
appellant's motion for new trial on these grounds; and the trial court
improperly failed to appoint appellant counsel before the first adversary
hearing, in violation of the Texas Family Code and appellant's constitutional
rights to due process and equal protection. We will affirm.
Background Facts and
Procedural History
Appellant gave birth to J.M.C. on April 6,
2001. J.M.C. tested positive for cocaine, heroin, and methadone, and appellant
admitted using both cocaine and heroin just four days before J.M.C.'s birth.
Consequently, on April 12, 2001, TDPRS filed a dual petition to protect J.M.C.
and to terminate appellant's parental rights.
The same day, the trial court entered an
ex parte order appointing TDPRS as J.M.C.'s temporary managing conservator and
directing that a full adversary hearing be held on April 23, 2001 to provide for
J.M.C.'s care and protection. Meanwhile, appellant had been released from the
hospital. Although a Child Protective Services (CPS) caseworker had some contact
with appellant at the hospital and by telephone, appellant could not be located
for service of process. On April 23, the trial court extended the April 12
temporary order until appellant could be served and request an adversary
hearing.
The trial court held a status hearing on
May 23, 2001, but appellant had not yet been served with process and did not
appear at the hearing. Appellant was finally located on June 7 and served with
process on June 18, 2001. Appellant met with Kathleen Chittenden, a CPS
caseworker, on June 18, and also visited J.M.C. that day. Thereafter, Chittenden
had only sporadic telephone contact with appellant until May 2002. Appellant did
not respond to most of the messages Chittenden left on appellant's pager or with
friends, and a certified letter that Chittenden sent appellant in August 2001
was returned. Appellant did contact Chittenden by telephone once each in July
and August 2001 and then again in March 2002. However, appellant did not keep
any of the appointments that she scheduled, and she made no more attempts to
visit J.M.C. Appellant also failed to appear at permanency hearings on September
27, 2001 and January 31, 2002, although she was properly notified of the
hearings. Appellant finally appeared for a permanency hearing on May 16, 2002.
On that date, the trial court appointed an attorney to represent appellant and
reset the trial on termination, which had been scheduled for May 21, for July
23, 2002. Appellant's parental rights were terminated following the July 23
trial. The trial court never held the full adversary hearing that was
rescheduled on April 23, 2001.
Trial Court's Jurisdiction
In her first three issues, appellant
contends that the trial court lost jurisdiction over the case when it failed to
hold a full adversary hearing by the fourteenth day after TDPRS took possession
of J.M.C. pursuant to the ex parte temporary order and when it failed to extend
the temporary order in accordance with Rule 680 of the Texas Rules of Civil
Procedure. Appellant further contends that the trial court lost jurisdiction
because the temporary order expired sometime between April 26 and May 7 when
Rule 680 was not complied with. Appellant asserts that the trial court should
have returned J.M.C. to her because TDPRS had no legal basis to keep J.M.C.
after the order expired. Alternatively, appellant contends that Rule 680 and
section 263.401(d) of the family code required the trial court to dissolve the
temporary order and render a final order returning J.M.C. to her when TDPRS did
not proceed with the full adversary hearing, even though appellant never asked
the trial court to do so. In her fourth issue, appellant contends that the trial
court erred in denying her motion for new trial on these grounds.
The family code authorizes TDPRS to obtain
a temporary possession order ex parte in certain circumstances, and appellant
concedes that the temporary order was properly obtained in this case. See
Tex. Fam. Code Ann. § 262.101-.102 (Vernon 2002). The temporary order expires
fourteen days after the date it is issued unless it is extended as provided by
the Texas Rules of Civil Procedure. Id. § 262.103. The trial court is
also required to hold a full adversary hearing not later than the fourteenth day
after TDPRS takes possession of the child pursuant to an ex parte temporary
order. Id. § 262.201(a).
We have held that section 262.201(a)'s
requirement that the trial court hold a full adversary hearing within fourteen
days of issuing an ex parte possession order is procedural, not jurisdictional. In
re E.D.L., No. 02-02-211-CV, slip op. at 6, 2003 WL 1848765, at *6 (Tex.
App.--Fort Worth Apr. 10, 2003, no pet. h.). If a full adversary hearing is not
held within fourteen days, the remedy for both the parents and TDPRS is to
compel the trial court by mandamus to conduct the adversary hearing promptly. Id.
at 17, 2003 WL 1848765, at *6. The trial court does not, however, lose
jurisdiction over the case. Id.
Likewise, we have held that the provisions
in family code section 263.401 (1) governing the
deadlines for rendering a final order in a termination proceeding are
procedural, not jurisdictional. In re J.B.W., 99 S.W.3d 218, 222-24
(Tex. App.--Fort Worth 2003, pet. filed); see also Tex. Fam. Code Ann.
§ 263.402(b). If a party wants the trial court to dismiss the termination
proceeding and render a final order returning the child to her under section
263.401, she must make her request before TDPRS introduces all of its evidence
at the trial on termination; otherwise, a complaint about the trial court's
failure to dismiss under section 263.401 is waived. Tex. Fam. Code Ann. §
263.402(b); see also J.B.W., 99 S.W.3d at 222 (holding that appellant
who failed to timely move to dismiss termination suit waived right to object to
trial court's failure to dismiss).
Morever, the expiration of a temporary
restraining order under Rule 680 does not deprive a trial court of jurisdiction
over the subject matter of the order. See Hughes v. Anthony, No.
01-88-998-CV, 1988 WL 117205, at *1 (Tex. App.--Houston [1st Dist.]
1988, orig. proceeding) (not designated for publication); Arvol D. Hays
Constr. Co. v. R & M Agency Corp., 471 S.W.2d 628, 629 (Tex. Civ.
App.--Fort Worth 1971, writ ref'd n.r.e.); Parker v. State, 161 S.W.2d
319, 321 (Tex. Civ. App.--Waco 1942, writ ref'd) (all holding that expiration of
TRO did not deprive trial court of jurisdiction to consider and grant
application for temporary injunction on subject matter of TRO).
In short, nothing in section 262.201,
section 263.401, or Rule 680 deprives a trial court of jurisdiction over a
termination proceeding simply because a temporary possession order has expired
or the trial court does not hold a full adversary hearing. In addition,
appellant did not seek mandamus relief to compel the trial court to hold the
full adversary hearing, nor did she timely complain about the trial court's
failure to dismiss the termination proceeding under section 263.401. Because the
trial court did not lose jurisdiction over the termination proceeding and
appellant did not properly raise her other complaints, we overrule appellant's
first four issues.
Section 107.013(a)(1)
In her fifth issue, appellant contends
that the trial court's failure to appoint her an attorney immediately after suit
was filed and before the first adversary hearing violated section 107.013 of the
family code. Appellant asserts that TDPRS's failure to attach to the termination
petition an affidavit showing that appellant had voluntarily relinquished her
parental rights informed the trial court that appellant was contesting the
termination proceeding, thereby triggering the trial court's duty to immediately
determine appellant's indigent status and appoint her counsel.
The family code requires the trial court
to appoint counsel to represent an indigent parent in a termination proceeding
where the parent responds in opposition to the termination. Tex. Fam. Code Ann.
§ 107.013(a)(1). Construing section 107.013(a)(1) as we must, according to the
ordinary meaning of its terms, (2)
we hold that documents omitted from TDPRS's petition for termination are not a
"respon[se] in opposition to the termination" from an indigent parent.
Id. Accordingly, TDPRS's failure to attach an affidavit of
relinquishment to its termination petition did not give rise to a trial court
duty to determine appellant's indigent status or appoint appellant counsel under
section 107.013(a)(1).
When appellant finally appeared before the trial court for the first
time--for a permanency hearing on May 16, 2002--the trial court immediately
appointed an attorney to represent her. We hold that the trial court's
appointment of counsel in May 2002 complied with section 107.013(a)(1). Id.;
see also In re M.J.M.L., 31 S.W.3d
347, 354 (Tex. App.--San Antonio 2000, pet. denied) (holding that trial court's
appointment of counsel six months into termination proceeding, rather than
immediately after suit was filed, did not violate section 107.013(a)(1)). We
overrule appellant's fifth issue.
Due Process
In her sixth issue, appellant contends that the trial court violated
her federal right to due process by failing to determine at the "earliest
possible time" whether she was indigent and in need of appointed counsel.
Appellant contends that the arguments raised in her first four issues
demonstrate her critical need for counsel during the early stages of the
termination proceeding.
Due process does not require the appointment of counsel for an indigent
parent in every termination proceeding. Lassiter v. Dep't of
Soc. Servs., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2162 (1981); In
re K.L., 91 S.W.3d 1, 5 (Tex. App.--Fort Worth 2002, no pet.). Rather, the
decision of what due process, or "fundamental fairness," requires
depends upon the facts and circumstances of a given case and is best left to the
trial court, subject to appellate review. Lassiter, 452
U.S. at 24-25, 32, 101 S. Ct. at 2158, 2162; M.J.M.L., 31
S.W.3d at 354. In addition, a court deciding whether due process requires the
appointment of counsel need not ignore a parent's plain demonstration that she
is not interested in attending a hearing. Lassiter, 452
U.S. at 33, 101 S. Ct. at 2163.
In this case, after appellant was served with process in June 2001, she
ignored most of CPS's attempts to contact her, broke all of her scheduled
appointments with CPS, did not attempt to visit J.M.C., and failed to appear at
permanency hearings in September 2001 and January 2002, even though she had
notice of the hearings. Despite appellant's surmise on appeal that she may have
made informed, and therefore better, decisions if she had enjoyed the early
advice of counsel, virtually all of appellant's actions for eleven months after
she was served with process are evidence that she was not interested in
participating in the termination proceeding. When she finally did appear at a
hearing in May 2002, the trial court immediately appointed her counsel and
postponed the trial on termination for two months. Under these circumstances, we
hold that the trial court did not violate appellant's due process rights by
failing to determine her indigent status and appoint her counsel before her
initial appearance at the May 16, 2002 permanency hearing. We overrule
appellant's sixth issue.
Equal Protection
In her seventh issue, appellant contends that the family code
provisions governing the appointment of counsel for parents and children in
termination proceedings, as applied to her, violate her federal right to equal
protection because all children are immediately entitled to appointed counsel,
and therefore greater protection, than parents, who are only entitled to
appointed counsel under certain circumstances. Appellant asserts that these
different provisions infringe on her parental rights in J.M.C., which are
fundamental, constitutional rights, and that the family code provisions are
therefore subject to strict scrutiny. Appellant further contends that section
107.013(a)(1) violates her equal protection rights because it arbitrarily
provides for the appointment of attorneys for some indigent parents--those who
appear to formally oppose the termination--but not for others--those who do not
appear. (3)
The Equal Protection Clause provides that no state shall "deny to
any person within its jurisdiction the equal protection of the laws," which
is essentially a directive that all persons similarly situated should be treated
alike. U.S. Const. amend. XIV, § 1; City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1985). To
assert an equal protection claim, however, a party must establish that the
challenged statute resulted in her being treated differently than other
similarly situated parties. Sanders v. Palunsky, 36 S.W.3d
222, 225 (Tex. App.--Houston [14th Dist.] 2001, no
pet.).
When TDPRS petitions to terminate the parent-child relationship,
section 107.012 of the family code requires the trial court to appoint an
attorney to represent the child immediately after the suit is filed, but before
the full adversary hearing. Tex. Fam. Code Ann. § 107.012. The purpose of this
requirement is to ensure adequate representation of the child. Id.
The trial court is also required to appoint an attorney to represent an indigent
parent, if the indigent parent responds in opposition to the termination. Id.
§ 107.013(a)(1). Section 107.013 contains no timetable for appointing the
attorney to represent the parent. Id.
Appellant's comparison of the right to counsel in sections 107.012 and
107.013 does not state an equal protection claim because minor children and
parents are not similarly situated. In this case, for example, appellant cannot
seriously argue that J.M.C., who was only days old when the termination suit was
filed, was similarly situated to her. Minor children have neither the funds nor
the ability to hire an attorney, nor are they able to represent themselves in a
termination proceeding. See id. §§ 31.001, 31.006
(providing that only a minor age 16 or older whose disabilities of minority have
been removed has the ability to contract), § 107.012 (mandating representation
of child by attorney ad litem in termination proceeding).
Some parents, on the other hand, do have the funds to hire an attorney,
and parents have the right to represent themselves if they so choose. See
Tex. R. Civ. P. 7 (providing that any party to a suit may appear in person and
prosecute or defend her rights therein). In addition, the family code allows the
parent to voluntarily end the parent-child relationship or to oppose
termination, but neither of these options is available to the child. See
Tex. Fam. Code Ann. § 107.013(a)(1) (allowing parent to respond in opposition
to termination), § 161.103 (allowing parent to voluntarily relinquish parental
rights). Because minor children and parents are not similarly situated,
appellant's equal protection claim based on the difference between sections
107.012 and 107.013(a)(1) fails. See, e.g., Sanders, 36
S.W.3d at 225 (holding that equal protection challenge to Texas Civil Practice
& Remedies Code chapter 14 lacked merit because claim merely compared
indigent and nonindigent inmates, who were not similarly situated); Smith
v. State, 898 S.W.2d 838, 847 (Tex. Crim. App.) (rejecting equal protection
challenge that compared capital and noncapital defendants because such
defendants were not similarly situated), cert. denied, 516
U.S. 843 (1995).
Further, despite appellant's arguments to the contrary, section
107.013(a)(1) treats all similarly situated persons--indigent parents--the same.
Any indigent parent who desires appointed counsel must respond in opposition to
the termination. Tex. Fam. Code Ann. § 107.013(a)(1); see also
Sanders, 36 S.W.3d at 225 (holding that chapter 14 of
Texas Civil Practices & Remedies Code, which requires all indigent inmates
to comply with special filing and time limit requirements, treats all similarly
situated persons--indigent inmates--equally). We overrule appellant's seventh
issue.
Conclusion
Having overruled all of appellant's issues, we affirm the trial court's
judgment.
 
                                                      
   PER CURIAM
 
PANEL F: CAYCE, C.J.; DAY and WALKER, JJ.
DELIVERED: May 29, 2003

1. Tex. Fam. Code Ann. § 263.401.
2. Although we are to strictly construe involuntary
termination statutes in favor of parents, our primary objective in statutory
construction is to determine and give effect to the legislature's intent by
giving the words used in the statute their ordinary meaning. Phillips v.
Beaber, 995 S.W.2d 655, 658 (Tex. 1999); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985); see also Tex. Gov't Code Ann.
§ 312.002(a) (Vernon 1998).
3. Appellant also contends that section 107.013(a)(1), as
applied to her, violates her due process rights. Because we have held that the
trial court did not violate appellant's due process rights by waiting to appoint
counsel until appellant appeared before the court, we will not address this
argument.
