      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-01-00317-CV




                                    Donna Thornton, Appellant

                                                   v.

            The Texas Department of Protective and Regulatory Services, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
        NO. FM100464, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                Pursuant to a jury’s finding, the district court terminated the parent-child relationship

between Donna Thornton and her child. On appeal, Thornton contends that the district court denied

her due process and the effective assistance of counsel by failing to appoint an attorney for her until

forty-four days before trial. She also contends that the district court submitted a jury instruction that

erroneously permitted the jury to make findings supporting the termination of her rights without

requiring that ten jurors agree that she had engaged in particular prohibited conduct. We affirm the

judgment.

                Because Thornton does not challenge the sufficiency of the evidence to support the

judgment, we will confine our review of the record largely to the relevant procedural details. The

Texas Department of Protective and Regulatory Services filed its petition to terminate Thornton’s

parental rights on April 17, 2000. On October 12, 2000, Thornton rejected the court’s offer to
appoint counsel for her and asserted that she intended to retain counsel. On January 4, 2001, she

gave the name and telephone number of her attorney to a Department caseworker, but the attorney’s

secretary told the caseworker that Thornton had not retained his services; by order signed January

31, 2001, the district court memorialized its January 12, 2001 appointment of counsel for Thornton. 1

At the four-day trial that began on February 26, 2001, evidence was introduced showing, among

other things, that Thornton used crack cocaine and abandoned her child on occasion. The jury

unanimously found that Thornton’s parental rights should be terminated.

               On appeal, Thornton contends that the district court erred by delaying too long in

appointing counsel for her and by submitting a broad-form jury instruction.

               Thornton contends that the delay in appointment of counsel violated her right to due

process. The federal Constitution, however, does not require that counsel be appointed for all

indigents faced with termination of their parental rights; the trial court must weigh the parent’s

interests, the State’s interests, and the risk of an erroneous decision without counsel. Lassiter v.

Department of Soc. Servs., 452 U.S. 18, 27-32 (1981). The Texas Family Code requires the court

to appoint an attorney for an indigent parent who responds and opposes termination, but does not

specify a deadline by which the appointment must occur. Tex. Fam. Code Ann. § 107.013(a)(1)

(West Supp. 2002). Accordingly, “in Texas 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 347, 354 (Tex. App.—San Antonio 2000, pet. denied). Thornton received appointed




       1
         We accept as true the parties’ uncontradicted assertions of fact regarding Thornton’s
attempts to hire an attorney. See Tex. R. App. P. 38.1(f), 38.2(a)(1).

                                                   2
counsel, but contends that the appointment on January 12, 2001—almost nine months after the State

filed the termination petition and less than two months before trial—violated her right to due process

by depriving her of the effective assistance of counsel.

                We conclude that the district court did not violate Thornton’s due process rights.

Thornton rejected appointed counsel and announced that she intended to hire an attorney; this

indicated that, at least for purposes of hiring an attorney, she was not indigent. Texas Family Code

section 107.013 does not require appointment of attorneys for non-indigents. Thornton’s rejection

of the appointed attorney also waived, at least temporarily, whatever right the federal Constitution

offered respecting appointment of counsel for indigent parents. 2 Though the district court appointed

counsel only forty-four days before trial, it appointed counsel upon being informed that Thornton had

not hired an attorney. We conclude that the district court neither deprived Thornton of her

constitutional right to due process nor abused its discretion in appointing the attorney when it did.

See Lassiter, 452 U.S. at 32; M.J.M.L., 31 S.W.3d at 355-56.

                Thornton’s complaints that she was deprived of effective counsel similarly fail. Even

if parents facing termination of their parental rights are constitutionally entitled to effective counsel,3



        2
         The right to counsel can be waived, even by criminal defendants. See Collier v. State, 959
S.W.2d 621, 626 (Tex. Crim. App. 1997). The requirement noted in that case that the defendant be
fully admonished of the right he was surrendering when proceeding pro se is inapplicable to this case
in which Thornton opted to proceed, not without counsel, but with retained counsel.
        3
          See Arteaga v. Texas Dep’t of Prot. & Reg. Servs., 924 S.W.2d 756, 762 (Tex.
App.—Austin 1996, writ denied); see also In re B.B., 971 S.W.2d 160, 172 (Tex. App.—Beaumont
1998, pet. denied); In re J.F., 888 S.W.2d 140, 143 (Tex. App.—Tyler 1994, no writ); Posner v.
Dallas County Child Welfare Unit, 784 S.W.2d 585, 588 (Tex. App.—Eastland 1990, writ denied);
Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729, 734-35 (Tex. App.—Dallas 1986,
writ ref’d n.r.e.). But see In re B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.—Waco 2001, pet. filed);
In re J.M.S., 43 S.W.3d 60, 62-64 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

                                                    3
she initially rejected appointed counsel and does not allege that the appointed counsel she accepted

was ineffective. The district court did not err.

                Thornton also contends that the district court erred by submitting a defective charge.

Thornton waived this complaint by failing to object to the charge at the district court. See Tex. R.

App. P. 33.1. Because the termination of parental rights is such an important decision, we will, in

the interest of justice, review this complaint. See In re B.L.D., 56 S.W.3d 203, 215 (Tex.

App.—Waco 2001, pet. filed).

                Thornton contends that the submission of multiple grounds for termination in the

disjunctive was error because it enabled termination without the required agreement by a super-

majority; she contends that the broad-form charge allowed different jurors to find different grounds

for termination without any particular ground having the support of at least ten jurors. See id. at 215-

18. The charge in B.L.D. and the charge in this case were similar. Both permitted termination upon

finding (1) that the parent either (a) knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endangered the child’s physical or emotional well-being, or (b)

engaged in conduct or knowingly placed the child with persons who engaged in conduct that

endangered the child’s physical or emotional well-being, and (2) that termination of the parent-child

relationship is in the child’s best interest. See id. at 214-15.

                Thornton’s argument disregards the supreme court’s approval of broad-form

submission in termination cases. See Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649

(Tex. 1990). In E.B., the supreme court considered a charge that presented multiple grounds for

termination and asked only whether the parent-child relationship should be terminated. Id. at 648.



                                                    4
This Court reversed the termination of parental rights under this charge, holding that “a single broad

form question incorporating two independent grounds for termination of a parent-child relationship

permits the state to obtain an affirmative answer without discharging the burden that the jury

conclude that a parent violated one or more of the grounds for termination under the statute.” Id.

at 649 (discussing E.B. v. Texas Dep’t of Human Services, 766 S.W.2d 387, 389-90 (Tex.

App.—Austin 1989), rev’d, 802 S.W.2d at 649). The supreme court reversed our ruling and

reinstated the judgment of termination, holding as follows:


       The controlling question in this case was whether the parent-child relationship
       between the mother and each of her two children should be terminated, not what
       specific ground or grounds under [the statute] the jury relied on to answer
       affirmatively the questions posed. All ten jurors agree that the mother had
       endangered the child by doing one or the other of the things listed in [the statute].
       Petitioner argues that the charge, as presented to the jury, violates her due process
       right by depriving a natural mother of her fundamental right to the care, custody and
       management of her children. Recognizing her rights does not change the form of
       submission. The standard for review of the charge is abuse of discretion, and abuse
       of discretion occurs only when the trial court acts without reference to any guiding
       principle. Here the trial court tracked the statutory language in the instruction and
       then asked the controlling question. This simply does not amount to abuse of
       discretion.


Id.

               Thornton argues that we adopt the Waco court’s conclusion in B.L.D. because the

supreme court’s analysis has changed since the court decided E.B. See B.L.D., 56 S.W.3d at 216

(citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387-90 (Tex. 2000)). In Casteel, the jury was

presented with thirteen statutes defendant might have violated and asked simply whether a violation

occurred; the jury found that the defendant committed a violation. Id. at 387. This Court held that



                                                  5
the district court improperly submitted some of the listed violations, but held the erroneous

submission harmless because sufficient evidence supported findings of properly submitted violations.

See id. at 388. The supreme court reversed, concluding that appellate courts could not accurately

determine whether the jury had based its verdict on properly submitted grounds. Id. at 389. Relying

on this reasoning, the Waco court concludes in B.L.D. that the disjunctive submission of the grounds

for termination “allows for the possibility of termination based on a statutory ground not found by

at least ten jurors to have been violated.” B.L.D., 56 S.W.3d at 217.

                We cannot agree that Casteel overturns E.B. The supreme court based its opinion in

Casteel on the effects of the commingling of valid and invalid theories of recovery. Casteel, 22

S.W.3d at 389. It held, however, that “when questions are submitted in a manner that allows the

appellate court to determine that the jury’s verdict was actually based on a valid liability theory, the

error may be harmless.” Id. That reasoning does not negate the supreme court’s holding in E.B. that

the controlling question in termination cases is not which specific ground the individual jurors find

justifies the termination, but whether the parent-child relationship should be terminated. See E.B.,

802 S.W.2d at 649. Even if jurors find that different actions by the parent justify termination, an

affirmative response means that they agree that the parent-child relationship should be terminated.

Until the supreme court holds that ten jurors must agree that a particular ground justifying

termination exists, we conclude that judgments based on broad-form submission of valid grounds are

acceptable. See id.; see also Tex. R. Civ. P. 277.

               There is no assertion that any of the bases for termination submitted to the jury in this

case are invalid. Each of the disjunctively submitted issues is a sufficient basis for termination. See



                                                   6
Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2002).4 Like the jury in E.B., the jury below

was presented with various grounds for termination, then asked simply whether the parent-child

relationship should be terminated. The jury answered in the affirmative, and Thornton does not

contend that the evidence is insufficient to support that answer with respect to any of the specific

grounds.

               We affirm the judgment of the district court.




                                              Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: February 22, 2002

Do Not Publish




       4
         This statute authorizes a court to terminate the parent-child relationship if clear and
convincing evidence shows that a parent has committed any of several acts or omissions and that
termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp.
2002). The statute lists the many (subsections A through S, many with subparts) acts and omissions
supporting termination in the disjunctive. Id.

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