                                        COURT OF APPEALS
CATHERINE STONE                          FOURTH COURT OF APPEALS DISTRICT                           KEITH E. HOTTLE,
  CHIEF JUSTICE                            CADENA-REEVES JUSTICE CENTER                                 CLERK
KAREN ANGELINI                                300 DOLOROSA, SUITE 3200
SANDEE BRYAN MARION                         SAN ANTONIO, TEXAS 78205-3037
PHYLIS J. SPEEDLIN                        WWW.4THCOA.COURTS.STATE.TX.US                                TELEPHONE
REBECCA SIMMONS                                                                                       (210) 335-2635
STEVEN C. HILBIG
MARIALYN BARNARD                                                                                     FACSIMILE NO.
  JUSTICES                                                                                            (210) 335-2762


       Court of Appeals Number: 04-11-00308-CV
       Trial Court Case Number:      3743
       Style: In the Interest of C.Y.S, et al, Children

       Trial Judge: The Honorable Enrique Fernandez
       Trial Court Reporter: John Price
       Trial Court: 63rd Judicial District Court
       Trial County: Edwards

       ORIGINAL OPINION DELIVERED:                          NOVEMBER 30, 2011
       MOTION FOR REHEARING DENIED:
       RELEASED FOR PUBLICATION:
       PUBLISH: Y PAGES: 9
       APPELLANT ATTORNEY                                  APPELLEE ATTORNEY

       Manuel C. Rodriguez, Jr.                                Luisa Petrin Marrero
       Law Office of Manuel C. Rodriguez, Jr.                  Texas Department of Family and Protective
       Lincoln Center - Suite 535                              Services MC: Y-956
       7800 IH-10 West                                         2401 Ridgepoint Drive, Bldg. H-2
       San Antonio, TX 78230                                   Austin, TX 78754

       Jeffrey S. Mahl                                         Shelly L. Merritt
       Law Offices of Jeffrey S. Mahl                          Texas Department of Family and Protective
       108 West Losoya Street                                  Services
       Del Rio, TX 78840                                       3635 S.E. Military Drive
                                                               San Antonio, TX 78223

                                                               Michael Shulman
                                                               Texas Department of Family and Protective
                                                               Services, MC: Y-956
                                                               2401 Ridgepoint Drive. Bldg. H-2
                                                               Austin, TX 78754

                                                               Steven W. Bartels
                                                               Appellate Attorney, Office of General Counsel
                                                               Texas Department of Family and Protective
                                                               Services
                                                               2401 Ridgepoint Drive, Bldg. H-2
                                                               Austin, TX 78754

       Addressee Count:       6
                                   MEMORANDUM OPINION
                                            No. 04-11-00308-CV

                            IN THE INTEREST OF C.Y.S., et al., Children

                    From the 63rd Judicial District Court, Edwards County, Texas
                                        Trial Court No. 3743
                        The Honorable Enrique Fernandez, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 30, 2011

AFFIRMED

           This is an accelerated appeal from the trial court’s order terminating the appellant’s

parental rights. See TEX. FAM. CODE ANN. § 263.405 (West Supp. 2011). 1 We hold the trial

court abused its discretion in finding that the appellate issue concerning appointment of counsel

is frivolous, but overrule the issue on its merits and affirm the trial court’s termination order.

                                                BACKGROUND

           On December 10, 2009, the Texas Department of Family and Protective Services (the

“Department”) filed an “Original Petition for Protection of a Child, for Conservatorship, and for


1
 Recently, section 263.405 was substantially amended; however, the prior version of section 263.405 applies to this
case because the final termination order was signed before the September 1, 2011 effective date of the amendment.
See Act of May 19, 2011, 82d Leg., R.S., ch. 75, § 8, 2011 Tex. Gen. Laws 348, 349-50.
                                                                                                     04-11-00308-CV


Termination in Suit Affecting the Parent-Child Relationship” with respect to Krystal’s six

children. 2 The petition stated, “If reunification with the mother cannot be achieved, the Court

should terminate the parent-child relationship . . .” on the alleged grounds for termination. The

court signed an “Order for Protection of a Child in an Emergency” naming the Department the

temporary sole managing conservator of the children, and appointed an attorney ad litem for the

children. A full adversary hearing was held on January 21, 2010. In its temporary orders signed

at the conclusion of the hearing, the court notes that Krystal appeared in person and announced

ready, and states that it is deferring its finding regarding an attorney ad litem for Krystal because

she “has not appeared in opposition to this suit or has not established indigency.” The family

services plan dated February 16, 2010 stated the permanency goal for all the children was

“family reunification” with a target date of December 31, 2010; Krystal and the father signed the

plan. A status hearing was held on March 4, 2010, at which Krystal appeared and acknowledged

understanding the family services plan.

         The initial permanency progress report filed by the Department on June 14, 2010 again

stated that the permanency goal for the children was family reunification, but noted that neither

parent was in compliance with the family services plan; the report also identified the existence of

“variables that would be a barrier for reunification if risk factors are not resolved that include[:]

Krystal’s decision to remain in an abusive and highly volatile relationship with [the father], who

has not complied with services and continues to engage in substance use.” A permanency

hearing was held on July 20, 2010; Krystal appeared but the father did not appear. The court

found that neither parent had demonstrated adequate and appropriate compliance with the family

services plan, and set a trial date and dismissal date. The Department’s next permanency


2
 To protect the privacy of the parties, we identify the children by their initials and the parents by their first names
only. TEX. R. APP. P. 9.8(b); TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2011).

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                                                                                                04-11-00308-CV


progress report filed on September 23, 2010 stated that both parents had failed to comply with

the family services plan, and changed the permanency goal for the children from family

reunification to “termination of parental rights.” The report stated that Krystal and the father

were warned at the July 20, 2010 hearing that if they continued to fail to comply with the service

plan the permanency goal would be changed to termination. The next permanency hearing was

held on October 8, 2010. The court’s docket sheet entry for October 8, 2010 reflects that the

court noted that the Department’s goal was “now termination,” and that both parents were

advised of their right to an attorney; the court appointed an attorney to represent Krystal. A new

trial date was set for December 16, 2010. Krystal’s counsel requested a continuance of the

December trial setting, which was granted to February 3, 2011.

           Eight witnesses testified at the February 3, 2011 bench trial, including Krystal and the

father, the Department’s caseworker assigned to the family and the legal worker who created the

family services plan, a psychotherapist who treated Krystal as a victim of domestic violence, a

family homemaker consultant who counseled both parents, Krystal’s case worker with Quad

Counties Council on Alcohol and Drug Abuse, and a friend of Krystal. At the conclusion of the

trial, the court terminated Krystal’s parental rights based on its findings that Krystal

(i) knowingly endangered the physical or emotional well-being of the children and (ii) failed to

comply with the family service plan setting forth the actions necessary to obtain return of the

children, and that termination is in the children’s best interests. See TEX. FAM. CODE ANN.

§ 161.001(1) (D), (O), & (2) (West Supp. 2010). Krystal filed a motion for new trial and

affidavit of indigence, and a notice of appeal. 3 In her motion for new trial, Krystal alleged that a

new trial should be granted because the evidence was insufficient to support the grounds for

termination, and the trial court failed to appoint her an attorney “at the initiation of the petition
3
    The parental rights of the children’s father were also terminated, but he did not appeal.

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                                                                                      04-11-00308-CV


filed by the Department . . . causing her to miss important discovery and trial deadlines, i.e.,

including . . . her right to request jury trial.” The Department filed a request for findings under

section 263.405(d), with an affidavit summarizing the trial evidence and a brief in support,

requesting that the court determine that any appeal would be frivolous.                  See id. at

§ 263.405(d)(3). After holding the section 263.405(d) hearing, the court denied Krystal’s motion

for new trial and found her indigent for purposes of appeal; it carried the ruling on whether her

appeal is frivolous pending her filing of a late statement of appellate points, for which the court

granted an extension. See id. at § 263.405(b)(2), (d)(3). Krystal filed a statement of appellate

points listing several challenges to the sufficiency of the evidence to support termination, and

several abuses of discretion by the trial court including, “Failure of the Court to appoint an

attorney to Krystal . . . from the outset of the civil matter, specifically the date of filing of the

Petition for Termination of Parent Child Relationship by the Department of Family Protective

Services.” The trial court subsequently issued an “Additional Finding on Hearing Held Pursuant

to Section 263.405 Texas Family Code” in which it found Krystal’s appellate points to be

frivolous. See id. at § 263.405(d)(3). Krystal now appeals the court’s finding that her appeal is

frivolous.

                                             ANALYSIS

       Because the trial court found that all of the appellate issues raised in Krystal’s statement

of appellate points are frivolous, the scope of our review is initially limited by statute to the

frivolousness issue. Id. at § 263.405(g); In re K.D., 202 S.W.3d 860, 865 (Tex. App.—Fort

Worth 2006, no pet.). In her brief, Krystal raises only one of the multiple issues listed in her

statement of appellate points—that the delay in appointment of counsel was an abuse of

discretion and violation of her due process rights. Before we can reach the substantive merits of



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                                                                                      04-11-00308-CV


Krystal’s issue on appeal, we must determine whether the trial court abused its discretion in

finding this appellate point to be frivolous. In re M.N.V., 216 S.W.3d 833, 834-35 (Tex. App.—

San Antonio 2006, no pet.).

       Although Krystal’s brief does not directly address the question of whether her appeal is

frivolous, we construe her argument to encompass a challenge to the court’s finding that her

appellate issue is frivolous. See Lumpkin v. Dep’t of Family and Protective Servs., 260 S.W.3d

524, 526 n.3 (Tex. App.—Houston [1st Dist.] 2008, no pet.). An appeal is frivolous when it

lacks an arguable basis in law or in fact. In re S.M., No. 04-08-00340-CV, 2008 WL 5423138, at

*1 (Tex. App.—San Antonio Dec. 31, 2008, no pet.) (mem. op.); De La Vega v. Taco Cabana,

Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.). In determining whether an

appeal is frivolous, the court considers whether the appellant has presented a substantial question

for appellate review. TEX. FAM. CODE ANN. § 263.405(d)(3); TEX. CIV. PRAC. & REM. CODE

ANN. § 13.003(b) (West 2002); In re S.M., 2008 WL 5423138, at *1. Here, the Department

concedes in its brief that Krystal’s issue concerning appointment of counsel is not frivolous, and

we agree that it has at least an arguable basis in law and fact and is, therefore, not frivolous. See

In re M.N.V., 216 S.W.3d at 835. Accordingly, we conclude the trial court abused its discretion

in finding that Krystal’s appellate point challenging the delay in appointment of counsel is

frivolous.

       Having concluded Krystal’s appellate issue is not frivolous, we may proceed to address

the merits of the issue because we have the benefit of the full record of the termination

proceedings and full briefing on the issue’s merits by the parties.

       In her sole issue on appeal, Krystal asserts the trial court abused its discretion and

violated her due process rights by failing to timely appoint an attorney ad litem to represent her



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                                                                                      04-11-00308-CV


pursuant to section 107.013 of the Family Code. TEX. FAM. CODE ANN. § 107.013 (West Supp.

2011). The Department argues this issue was not preserved because it is not the same issue that

was listed in Krystal’s statement of appellate points and that was raised in the trial court;

specifically, the Department acknowledges Krystal challenged the delay in appointment of

counsel in her motion for new trial and in her statement of points, but objects that she did not

raise the constitutional claim, i.e., a due process violation, that she now argues on appeal. We

agree that the record contains no indication that Krystal ever raised a due process claim in the

trial court, and that the constitutional claim was therefore not preserved. See TEX. FAM. CODE

ANN. § 263.405(i) (providing the appellate court may not consider any issue not specifically

presented to the trial court in the statement of appellate points); TEX. R. APP. P. 33.1; see also In

re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); In re M.Y.C., No. 04-06-00895-CV, 2007 WL

2935482, at *1 (Tex. App.—San Antonio Oct. 10, 2007, no pet.) (mem. op.). However, we note

that Krystal’s complaint in her brief about the timing of appointment of counsel is phrased as

both an assertion that the trial court abused its discretion under the statute and an assertion that

her due process rights were violated. Therefore, we will address only the argument that the trial

court abused its discretion under section 107.013 in failing to appoint Krystal an attorney ad

litem earlier in the process.

        Krystal argues the trial court should have appointed counsel to represent her soon after

the Department filed its petition because it was obvious she was indigent and opposed the

termination of her parental rights. Under section 107.013(a)(1) of the Family Code, the trial

court is required to appoint an attorney ad litem to represent a parent’s interests in a termination

suit brought by the Department if the parent is indigent and responds in opposition to the

termination. TEX. FAM. CODE ANN. § 107.013(a)(1). Subsection (c) of section 107.013 also



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                                                                                                  04-11-00308-CV


mandates appointment of an attorney ad litem to “an indigent parent . . . who responds in

opposition to the suit” if the Department seeks temporary managing conservatorship of a child.

Id. at § 107.013(c). Krystal contends the trial court had notice of her indigency as early as

December 16, 2009 by virtue of the caseworker’s affidavit attached to the Department’s original

petition, which stated she was currently receiving food stamps.                      Krystal also argues her

appearances at all of the hearings showed she was “opposed to” any termination of her parental

rights from the beginning of the proceedings; therefore, the trial court erred in not appointing her

an attorney ad litem right away.

        As noted, supra, at the January 21, 2010 hearing on temporary orders, the trial court

expressly deferred ruling on the appointment of counsel for Krystal because it found Krystal had

not “appeared in opposition to this suit or has not established indigency” as required by the

statute. See id. at § 107.013(a)(1), (c). Subsection (d) of section 107.013 expressly requires a

parent who claims indigence under the statute to file an affidavit of indigence in accordance with

Rule 145(b) of the Texas Rules of Civil Procedure before the trial court can determine the

parent’s indigence under section 107.013. Id. at § 107.013(d). The record does not contain an

affidavit of indigence filed by Krystal in compliance with section 107.013(d) prior to October 8,

2010, the date her attorney was appointed. 4 Further, the record does not reflect that Krystal ever

made an earlier request for appointment of an attorney, either orally or in writing, or filed an

answer or testified in opposition to removal of the children prior to October 8, 2010.

        We have held that the complete failure to appoint counsel for an indigent parent is

reversible error, but that the trial court has discretion in the timing of appointment of counsel


4
  Even though Krystal’s section 107.013(d) affidavit is not in the record, the trial court’s October 8, 2010 order
appointing an attorney to represent Krystal recites that Krystal “has filed an affidavit of indigence in accordance
with rule 145(b) of the Texas Rules of Civil Procedure and that appointment of an Attorney Ad Litem for [Krystal] is
mandatory under § 107.013 of the Texas Family Code . . . .”

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based on the open-ended language of section 107.013 and the omission of any set time-frame in

the statute for appointment of counsel. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San

Antonio 2000, pet. denied). We held in M.J.M.L. that appointment of counsel six months after

the case began was not in itself a violation of section 107.013. Id.; see also In re J.J., No. 13-04-

00202-CV, 2006 WL 949952, at *3 (Tex. App.—Corpus Christi April 13, 2006, no pet.) (mem.

op.) (holding appointment of counsel eleven months after the petition for termination was filed,

but four and one-half months before trial, did not violate section 107.013); Holmes v. Tex. Dep’t

of Protective and Regulatory Servs., No. 03-01-00325-CV, 2002 WL 1727384, at *1 (Tex.

App.—Austin July 26, 2002, pet. denied) (not designated for publication) (holding court was not

obligated to appoint counsel for indigent father at inception of termination proceeding and

appointment of counsel one year after petition was filed, but two months before trial, did not

violate section 107.013); c.f., In re C.D.S., 172 S.W.3d 179, 185-86 (Tex. App.—Fort Worth

2005, no pet.) (acknowledging that section 107.013(a) does not require the immediate

appointment of an attorney ad litem, but holding that court erred in failing to find mother

indigent and in failing to appoint counsel prior to mother’s voluntary relinquishment of rights on

eve of trial eight months after she testified at adversary hearing in opposition to removal of her

child).

          Here, Krystal neither appeared in opposition to removal of her children nor filed an

affidavit of indigence as required by section 107.013 at any time prior to the appointment of

counsel on October 8, 2010.       Moreover, the Department’s stated permanency goal for the

children was family reunification until the September 23, 2010 progress report, when it was

changed to parental termination; Krystal was appointed counsel at the next hearing held two

weeks later. Krystal’s appointed counsel had four months to prepare for trial, and Krystal does



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not assert that her counsel was unprepared or otherwise rendered ineffective assistance due to the

timing of the appointment. We hold that the trial court did not abuse its discretion under section

107.013(a) by appointing an attorney ad litem for Krystal on October 8, 2010, ten months after

the Department’s petition was filed.

          Based on the foregoing reasons, we conclude the trial court abused its discretion in

finding Krystal’s appellate issue concerning appointment of counsel to be frivolous, but we

overrule the issue on its merits and affirm the trial court’s order terminating Krystal’s parental

rights.


                                                 Phylis J. Speedlin, Justice




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