                In the
           Court of Appeals
   Second Appellate District of Texas
            at Fort Worth
         ___________________________
              No. 02-18-00329-CV
         ___________________________

IN THE INTEREST OF M.H. AND C.H., CHILDREN



      On Appeal from the 231st District Court
              Tarrant County, Texas
          Trial Court No. 231-527816-13


   Before Sudderth, C.J.; Pittman and Birdwell, JJ.
  Memorandum Opinion by Chief Justice Sudderth
                           MEMORANDUM OPINION

      In a single issue, Appellant Father appeals the trial court’s order terminating his

parental rights to his two children. See Tex. Fam. Code Ann. § 161.001. Father

complains of the trial court’s failure to appoint an attorney ad litem to represent him.

See id. § 107.013. Based on the facts and circumstances of this case, we agree with

Father, reverse the trial court’s judgment, and remand the cause for a new trial.

                                     Background

      Appellee, the Department of Family and Protective Services (DFPS), brought

suit to terminate Father’s parental rights to his two children in June 2017. Father

appeared pro se at the emergency temporary orders hearing that month, but he

subsequently retained an attorney. Father’s attorney attended several hearings with

him and filed certain motions on his behalf. On June 7, 2018, Father’s attorney filed a

motion to withdraw from the case.          Although the attorney stated that Father

requested that she withdraw, Father refused to sign an agreed motion to withdraw.

The motion to withdraw was granted twenty days later, and the corresponding order

notified Father of the final hearing scheduled for September 26, 2018.

      Father appeared pro se at the August 23 “permanency hearing before final

order.” See id. § 263.305 (providing that a permanency hearing before entry of a final

order shall be held not later than the 120th day after the date of the last permanency

hearing in the suit). Father again appeared pro se at the September 26 final hearing.


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Father’s issue on appeal arises from this exchange with the trial court at the

September 26 final termination hearing:

             THE COURT: Okay. And you’re here representing yourself; is
      that correct?
             [FATHER]: Yes, sir.
            THE COURT: All right. Tell me everything you want to tell me
      before we got [sic] started.
              [FATHER]: I hired the lawyer and after my court date, May 14th
      - - due to representing - - representation, by then I’d been trying to find
      new a job, new work. I’ve been put out of a truck - - truck driving,
      location engineering going from Texas to California. Due to the
      situation that my kids has been gone, kidnapped from their home. I’ve
      been put out of work. I’ve been trying to find new work, trying to find a
      new way of making - -
             THE COURT: All right. Hold on a second. That’s not what I’m
      asking you.
             What happened to your attorney?
             [FATHER]: My lawyer, I fired.
             THE COURT: Okay. Was that a Court-appointed attorney?
             [FATHER]: No. I paid her. On June 8th. Last June
             THE COURT: So she was - - you hired her?
             [FATHER]: Yes, sir.
             THE COURT: Private hire.
             Okay. Have you been back since asking for a court-appointed
      attorney?
             [FATHER]: No, Your Honor.
             THE COURT: Why not?


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               [FATHER]: I’ve been busy working.
               THE COURT: All right. So you want to represent yourself here
      today?
               [FATHER]: For today, Your Honor, you can let me have one.
            THE COURT: Okay. All right. Have a seat. You represent
      yourself.
               All right.
               [State calls its first witness.]
             THE COURT: Sir, you understand that we’re - - [Father], you
      understand that we’re . . . asking to terminate your parental rights today,
      right?
               [FATHER]: [No verbal response.]
               THE COURT: Is that a “yes”?
               [FATHER]: Yes, I understand that, Your Honor.
      The trial court proceeded with the trial. Father represented himself pro se

during the entire proceeding, at the conclusion of which Father’s parental rights were

terminated.      After the trial, the trial court found that Father was indigent and

appointed appellate counsel for Father. This appeal followed.

                                          Discussion

      Parental rights are sacred; they encompass a value “far more precious than any

property right.” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky v.

Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982)). So when the State seeks

to permanently sever parental rights, the State and the trial court must “observe

fundamentally fair procedures.” Id. (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at

                                                  4
1391–92). As a reviewing court, we must carefully scrutinize termination proceedings

and strictly construe involuntary-termination statutes in the parent’s favor. In re

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); see E.R., 385 S.W.3d, at 563; Holick v. Smith,

685 S.W.2d 18, 20–21 (Tex. 1985).

       Indigent parents are entitled to the assistance of appointed counsel in

termination proceedings brought by DFPS. Tex. Fam. Code Ann. § 107.013(a)(1)

(requiring the trial court to appoint an attorney ad litem to represent the interests of

an indigent parent who responds in opposition to the termination of his or her

parental rights). The complete failure of a trial court to appoint counsel for an

indigent parent has been held to constitute reversible error. In re V.L.B., 445 S.W.3d

802, 808 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding trial court erred by

failing to consider mother’s affidavit of indigency and appoint an attorney ad litem to

represent her before proceeding with termination trial); see also In re P.M., 520 S.W.3d

24, 26–27 (Tex. 2016) (discussing indigent parent’s right to appointed counsel for

proceedings in the trial court and court of appeals and to file a petition for review in

the supreme court); cf. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (“The right

to counsel is a valuable right; its unwarranted denial is reversible error.”).

       Although Father’s response, “For today, Your Honor, you can let me have

one” to the trial court’s question, “So you want to represent yourself here today?” was

not directly responsive to the precise question asked, in context we interpret Father’s

statement as a request for counsel. But based upon the trial court’s response, it
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appears that the trial court did not interpret Father’s response in such manner. At

best, a breakdown in communication occurred during this exchange.

      Even affording the trial court the benefit of the doubt that Father’s statement

was ambiguous, we nevertheless hold that it was the trial court’s responsibility, not the

pro se litigant’s, to seek clarification as to any ambiguity and to pursue the matter until

Father’s desire became manifest. Therefore, under these circumstances, we hold that

the trial court reversibly erred by failing to inquire into Father’s indigency1 at that

point and into Father’s desire to have an attorney appointed to represent him during

the termination hearing.2 See Tex. R. App. P. 44.1; In re T.R.R., 986 S.W.2d 31, 37

(Tex. App.—Corpus Christi 1998, no pet.) (holding that trial court reversibly erred

when it did not appoint an attorney to represent indigent mother who appeared at

termination hearing and stated, “I want my rights”).


      1
        The State argues that there was no evidence of indigency because Father had
not filed an affidavit of indigency, but this argument ignores the context that gave rise
to the discussion of a court-appointed attorney in the first place. At the beginning of
his discussion with the trial court, Father explained that he had lost his job as a long-
haul trucker and that he was trying to figure out how to make a living. After Father
revealed his unemployment situation, the trial court asked him why he had not asked
for a court-appointed attorney, indicating that the trial court at least considered the
need for a court-appointed attorney to be within the realm of possibility. And the
record shows that the trial court found Father to be indigent a little over a month
after the final hearing and appointed counsel to represent him on appeal.
      2
        In so holding, we also reject the State’s argument that Father waived any error
by failing to obtain a ruling on his request for appointed counsel. See Tex. R. App. P.
33.1. The trial court’s response of “Have a seat. You represent yourself,” can be
reasonably interpreted as a denial of Father’s request for counsel, thereby preserving
error.
                                            6
      We therefore sustain Father’s sole issue on appeal.

                                     Conclusion

      Having sustained Father’s sole issue on appeal, we reverse the trial court’s

order terminating Father’s parental rights and remand for a new trial on the issue of

the termination of Father’s parental rights. Tex. R. App. P. 43.2(d).



                                                      /s/ Bonnie Sudderth

                                                      Bonnie Sudderth
                                                      Chief Justice

Delivered: March 21, 2019




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