                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-081-CV


IN THE INTEREST OF J.C., A CHILD

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        FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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                                   OPINION

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                                I. INTRODUCTION

      In this termination of parental rights appeal, we confront the statutory

right-to-counsel disparity that exists between indigent parents in a private

termination suit and indigent parents in a termination suit brought by Child

Protective Services (CPS). Indigent parents in a private termination of parental

rights suit possess no statutory right to appointed counsel while indigent

parents in a CPS-initiated suit do. See T EX. F AM . C ODE A NN. § 107.013(a)(1)

(Vernon Supp. 2007) (mandating appointment of attorney ad litem for an

indigent parent “in a suit filed by a governmental entity in which termination of
the parent-child relationship is sought”). Here, although CPS initiated the suit

to terminate the parental rights of Appellant Tracy, who is J.C.’s mother, in a

coordinated maneuver, CPS subsequently nonsuited its termination suit, and on

the same day, J.C.’s foster parents filed their own private termination suit.

Consequently, because she was now defending a private termination suit,

instead of a CPS-prosecuted termination suit, Tracy was forced to proceed pro

se in the trial court and likewise proceeds pro se here. Because there is no

relief available to Appellant, we will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Upon her birth in Dallas, Texas, J.C. tested positive for phencyclidine.

CPS removed J.C. from Tracy at birth and filed a suit in Dallas County to

terminate Tracy’s parental rights to J.C. While CPS’s termination suit was

pending, CPS placed J.C. with foster parents, Appellees Mr. and Mrs. Smith

who are Tarrant County residents.1 The Smiths later attempted to intervene in

CPS’s termination suit, but their petition was stricken by the trial court.

Because the statutory deadline for disposition of the termination suit was




      1
       W e refer to Appellees by the fictitious names of Mr. and Mrs. Smith.
See T EX. F AM. C ODE A NN. § 109.002(d) (Vernon 2002).

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approaching 2 and for other reasons not relevant to this appeal, CPS nonsuited

its termination suit.

      On the same day that CPS nonsuited its termination suit, Mr. and Mrs.

Smith filed in Tarrant County an “Original Petition for Termination of Parental

Rights & Request for Temporary Orders & Request for Temporary Restraining

Order.” The Smiths sought to be named temporary managing conservators of

J.C., to terminate Tracy’s and J.C.’s father’s parental rights, and to adopt J.C.

The trial court entered temporary orders naming the Smiths temporary

managing conservators of J.C.

      Tracy filed a pro se answer in the Smiths’ termination suit. She also sent

a letter to the trial court judge stating, “I am indigent and cannot afford

counsel.” She explained, “I am currently attending community college in hopes

to be able to provide my daughter with a better future and security. . . .” She

expressed her love for her daughter and her inability to properly represent

herself and reiterated her need for an attorney.




      2
       See T EX. F AM. C ODE A NN. § 263.401 (Vernon Supp. 2007) (setting forth
deadlines for commencing trial on the merits of a termination suit filed by a
governmental entity).

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      In due course, the Smiths’ termination suit was called for final trial. Tracy

appeared pro se. After the trial, the trial court terminated Tracy’s parental

rights to J.C., finding by clear and convincing evidence that Tracy had

      a. knowingly placed or knowingly allowed the child to remain in
      conditions or surroundings that endanger the physical or emotional
      well-being of the child;

      b. failed to support the child in accordance with [her] ability during
      a period of one year ending within six months of the date of the
      filing of the petition;

      c. engaged in conduct or knowingly placed the child with persons
      who engaged in conduct that endangers the physical or emotional
      well-being of the child; and

      d. been the cause of the child’s being born addicted to alcohol or
      a controlled substance legally obtained by prescription, as defined
      by section 261.001 of the Texas Family Code.

      The trial court also found that termination of Tracy’s parental rights was

in J.C.’s best interest. J.C.’s father did not appear at trial and is not a party to

this appeal.

      Tracy subsequently filed a “Mother’s Motion for Re-Trial,” complaining

that, “I was and still remain indigent and can not afford legal counsel,

TERMINATION OF PARENTAL RIGHTS, is a matter of dire consequences, and

I was not allowed opportunity to Effective legal counsel.” Tracy also filed a

notarized “Mother’s Affidavit of Inability to Pay Costs of Appeal.” The Smiths

filed a contest to Tracy’s pauper’s affidavit. After a hearing, the trial court

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sustained the contest in part to the extent that Tracy was ordered to pay $405

for the reporter’s record.3 See T EX. R. A PP. P. 20.1(k) (authorizing order of

partial payment of costs). The trial court denied the balance of the contest and

ordered that Tracy be permitted to appeal without the payment of any other

costs.

      Tracy then filed a request with this court for appointment of counsel on

appeal. We abated the appeal to the trial court for consideration of her request,

and the trial court held that no statutory mandate existed requiring the

appointment of counsel in a private termination suit. Tracy did not pay the

$405 that she was ordered to pay toward the reporter’s record, and no

reporter’s record has been filed in this appeal. Tracy has filed a pro se brief

raising four issues.

                               III. T RACY’S ISSUES

      In her first issue, Tracy attacks the sufficiency of the evidence to support

the grounds for termination found by the trial court and to support the trial

court’s best interest finding. In her second issue, Tracy complains that the trial

court should not have believed the testimony of Kay Riffin. In her third issue,


      3
       Tracy has not complained of that order in this court. Accord M.L.B. v.
S.L.J., 519 U.S. 102, 128, 117 S. Ct. 555, 570 (1996) (holding that
Mississippi had to provide indigent mother in private termination suit with
record to afford appellate review of sufficiency of evidence).

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Tracy complains that the bonding assessor did not obtain her permission to

conduct a bonding assessment. In her fourth issue, Tracy complains that the

trial court did not appoint her counsel. We cannot review Tracy’s first three

issues in the absence of a reporter’s record. See, e.g., Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994) (explaining that after a bench trial, a trial court’s

findings of fact are conclusive unless the appellate court has a complete

reporter’s record); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07

(Tex.) (explaining that appellate court may not pass upon a witness’s credibility

or substitute its judgment for that of the fact-finder), cert. denied, 525 U.S.

1017 (1998).

      Concerning Tracy’s fourth issue, no statutory right exists to appointed

counsel in a private termination suit.      The legislature has mandated the

appointment of counsel for indigent parents in a termination suit only “in a suit

filed by a governmental entity in which termination of the parent-child

relationship is sought.” Compare T EX. F AM. C ODE A NN. §§ 107.001(1), .015(a),

(b), .021 (Vernon Supp. 2007) (appearing to permit, in a private termination

suit, permissive appointment of an attorney ad litem for a parent and payment

of such attorney ad litem “by one or more of the parties”) with § 107.013(a)(1)

(mandating appointment of attorney ad litem for an indigent parent in a

termination suit filed by a governmental entity); see also generally Lassiter v.

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Dept. of Social Servs., 452 U.S. 18, 101 S. Ct. 2153 (1981). Here, CPS

nonsuited its Dallas County termination suit, and the Smiths concurrently filed

a new private termination suit in Tarrant County seeking to terminate Tracy’s

parental rights to J.C.    Because Tracy’s parental rights were terminated

pursuant to a private termination suit, she possessed no mandatory statutory

right to appointed counsel; although we abated this case to the trial court to

consider the availability, if any, of discretionary appointment of counsel for

Tracy, the trial court declined to appoint counsel. There is no relief that this

court may grant to Tracy concerning the appointment of counsel.

      Consequently, we overrule all four of Tracy’s issues.

                                IV. C ONCLUSION

      Having overruled all of Tracy’s issues, we affirm the trial court’s judgment

terminating Tracy’s parental rights to J.C.




                                                  SUE WALKER
                                                  JUSTICE

PANEL M: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DELIVERED: March 13, 2008




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