                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                   ________________________

                                       No. 07-19-00174-CV
                                   ________________________


                               IN THE INTEREST OF J.F. II, A CHILD



                             On Appeal from the 137th District Court
                                    Lubbock County, Texas
                 Trial Court No. 2017-527,563; Honorable John J. McClendon III


                                           November 6, 2019

                                              OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Appellant, B.T., presents two issues challenging the trial court’s order terminating

her parental rights to her son, J.F. II.1 First, she maintains the associate judge erred when

she did not appoint counsel to represent her and erred again by allowing retained counsel

to withdraw a week prior to commencement of the trial on the merits in violation of Rule



        1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.

CODE ANN. § 109.002(d) (West Supp. 2018). See also TEX. R. APP. P. 9.8(b). The father’s parental rights
were also terminated; however, he did not appeal.
10 of the Texas Rules of Civil Procedure.2 By her second issue, B.T. alleges that failure

to appoint counsel for the trial on the merits resulted in due process violations that were

not cured by the appointment of counsel for the de novo hearing. We reverse and

remand.


        BACKGROUND

        B.T. has a history of methamphetamine use. She suffers from multiple ailments

and takes numerous medications. She has been diagnosed with bipolar disorder, anxiety,

asthma, migraines, seizures, polycystic ovarian syndrome (insulin resistance) and has a

pituitary tumor. During her testimony, B.T. described at least ten medications that she

had been prescribed for her ailments.


        When J.F. II was born in October 2017, the Texas Department of Family and

Protective Services was notified that he tested positive for amphetamines.                        Two days

after his birth, the Department filed its petition for his protection, as well as for

conservatorship and for termination of B.T.’s parental rights.


        On November 1, 2017, B.T. filed her Application for Appointment of Attorney &

Affidavit of Indigence. That same day, the trial court (a former associate judge) signed

an order finding that B.T. was indigent and appointed counsel to represent her. On March

12, 2018, B.T. chose to retain a family lawyer and filed a Motion to Substitute Counsel.




          2 Initially, this appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18

L. Ed. 2d 493 (1967), as having no merit. This court concluded there were arguable issues presented and
abated the appeal and remanded the cause to the trial court for appointment of new counsel. See In re
J.F. II, No. 07-19-00174-CV, 2019 Tex. App. LEXIS 6811, at *6-7 (Tex. App.—Amarillo Aug. 6, 2019, order).


                                                      2
Citing B.T.’s failure to cooperate, on August 15, 2018, retained counsel moved to

withdraw.


       No order appears in the clerk’s record granting the motion to withdraw. At the

commencement of the trial on the merits on September 14, 2018, B.T. requested a court-

appointed attorney and moved for a continuance. She announced that she needed a

continuance to “get an attorney. I need a court-appointed one, if you can.” The trial court

indicated there had been a hearing on retained counsel’s motion to withdraw just a week

earlier on September 7, 2018, at which B.T. was not present. The trial court then asked

B.T. if she would “have been asking the Court to release [retained counsel] or would [she]

have been asking the Court to keep him on as [her] attorney?” She answered, “[r]elease.”


       The trial continued with the Department and attorney ad litem for the child both

opposing a continuance based on the child’s need for permanence. B.T.’s verbal motion

for continuance as well as her request for court-appointed counsel were denied. She

proceeded pro se at the trial on the merits.


       Before the presentation of testimony, the parties discussed with the trial court a

pending approval of a home study related to the child’s foster placement with a relative in

Oklahoma. With a dismissal date of October 8, 2018 looming, the trial court granted a

recess until September 28, 2018, to resolve the child’s placement.


       When the trial resumed on September 28th, the Department announced, “present

and ready to proceed . . . .” B.T. again moved for a continuance and was advised by the

trial court to announce her name “but state not ready,” and B.T. complied. She explained

that she had attempted to retain counsel but did not have the financial resources for fees

                                               3
being quoted to her by several attorneys. She also sought the assistance of Legal Aid

and the Texas Tech Law School Clinic but was denied assistance. The day before the

trial had resumed, B.T. again filed paperwork establishing her indigence as well as

requesting the appointment of counsel.               The trial court acknowledged the filing but

deferred ruling on the request for counsel. The Department again opposed a continuance

and eventually, the trial court again denied B.T.’s motion for continuance. The court also

ruled, “[y]our request for additional time to get a court-appointed or hired attorney is also

denied.”


        The trial continued with B.T. as the first witness. Without any legal representation,

she answered questions from three attorneys. After the presentation of witnesses and

evidence, the trial court again ruled that B.T.’s motion for continuance as well as her

request for an extension of the dismissal date were denied. The ruling continued as

follows:


        [f]urther, [B.T.] had again applied for a court-appointed attorney. I find that
        that is her second request for court-appointed attorney, having released her
        first one, and then had representation by a hired attorney, who has now
        since withdrawn. I am denying her request for that second court-appointed
        attorney as untimely. I believe it was the day prior to the final hearing when
        that application was received.

(Emphasis added).3


        After another recess, the last day of trial resumed on October 19, 2018. B.T. was

not present. According to the record, she was on her way to the trial when she passed


         3 Rule 145 of the Texas Rules of Appellate Procedure which governs the procedure for a party who

files a Statement of Inability to Afford Payment of Court Costs does not provide a deadline for the filing of
the pertinent documents. TEX. R. CIV. P. 145.


                                                     4
out and was taken to the emergency room by a friend. B.T. sent her friend to the

proceedings to advise the trial court that she was hospitalized and unable to attend.

Without counsel or an advocate to represent B.T., the trial court announced, “[w]e are

going to go on without her.”


       The trial continued with the caseworker and two other witnesses testifying for the

Department. The foster mother also testified telephonically. Their testimonies were not

subjected to cross-examination by B.T. or an advocate for B.T.


       Based on the Department’s case, the trial court found clear and convincing

evidence to support termination of B.T.’s parental rights for (1) knowingly placing or

allowing her child to remain in conditions or surroundings that endangered his physical or

emotional well-being, (2) engaging in conduct or knowingly placing her child with persons

who engaged in conduct that endangered his physical or emotional well-being, and (3)

failing to comply with the provisions of a court order that specifically established the

actions necessary for her to obtain the return of her child. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D), (E), (O) (West Supp. 2019). The trial court also found that termination

of B.T.’s parental rights to J.F. II was in his best interest. § 161.001(b)(2). Finally, the

trial court found that B.T. failed to provide by a preponderance of the evidence any

explanation as to why she was unable to comply with the provisions of the court order, or

whether she had made a good faith effort to comply and why the failure to comply was

not her fault. § 161.001(d).




                                             5
        B.T. filed a request for a de novo hearing before the referring court. In her written

request, she listed her issue as the lack of representation at the trial on the merits and

explained that she was absent on the final day because she had been hospitalized.


        The de novo hearing commenced on November 19, 2018. B.T. was still without

legal representation and stated, “I don’t know if I can get a lawyer for this . . . I almost

have enough money saved up . . . .” B.T. also requested a continuance, which was again

opposed by the Department and by the attorney ad litem for the child.


        The referring court announced that it would be reading the entire record from the

trial and relying on the testimony that had been previously presented.4 Counsel for the

Department added that the caseworker would be providing testimony on the child’s status

and his placement.5


        The caseworker testified the child was doing well in his foster home in Oklahoma.

B.T. then attempted to cross-examine her, although inartfully. Numerous objections to

B.T.’s questions were sustained. After cross-examination of the caseworker, the de novo

hearing was recessed pending preparation of the reporter’s record from the trial on the

merits.




        4  The reporter’s record was not yet transcribed but the referring court expressed its intent to read it
in its entirety once prepared. Section 201.015(c) of the Family Code authorizes the referring court to
consider the record from the hearing before the associate judge. TEX. FAM. CODE ANN. § 201.015(c) (West
Supp. 2019).

        5 We note that section 201.015(c) of the Family Code provides that in a de novo hearing, witnesses

may testify on the issues specified in the request—here the denial of counsel at the trial on the merits—in
addition to consideration by the referring court of the record from the trial on the merits. The statute does
not address presentation of new evidence unrelated to the issues raised by the party seeking de novo
review.

                                                       6
       More than three months later, on February 27, 2019, the de novo hearing resumed.

The referring court announced that it had read the transcription from the trial on the merits.

The court also stated that B.T. had been arrested the night before for various traffic

violations. She had been transported to the holding area to await continuation of the de

novo hearing when she experienced medical problems that required hospitalization. The

de novo hearing was continued and the trial court declared, “[i]t is going to be my intent

to appoint [B.T.] an attorney, so I’ll give that attorney an appropriate amount of time to get

prepared.” The hearing was recessed and counsel was appointed that same day to

represent B.T.


       Several months later, on May 16, 2019, the de novo hearing resumed, this time

with court-appointed counsel representing B.T. The referring court made known that it

had read and would be considering the reporter’s record from the trial on the merits.

Noting that B.T. was without counsel at the previous de novo hearing, the referring court

notified the parties that “we’ll treat it as if we’re pretty much starting over” and allowed the

Department to re-open its evidence. The Department offered into evidence Petitioner’s

Exhibit 1, six volumes from the trial on the merits. The exhibit was admitted without

objection.


       B.T.’s counsel re-urged B.T.’s motion for continuance and for an extension of the

case deadline to give B.T. the opportunity to work her services guided by the assistance

of counsel. The motion was denied and the de novo hearing continued. The Department

presented the caseworker who testified regarding medical issues the child had developed

since his placement. She also offered testimony regarding plans for the foster parent to

adopt the child. B.T.’s drug use was also revisited as the reason for the child’s removal.

                                               7
       B.T. was the only witness in her defense. She admitted being a drug addict but

testified she had not used methamphetamine since she had discovered she was pregnant

with J.F II. She disputed the positive drug test results given the various prescription

medications she was taking. She also testified concerning pending criminal charges.


       The referring court took the matter under advisement. Subsequently, the trial court

signed an order terminating B.T.’s parental rights on the same statutory grounds that the

associate judge had found.


       ISSUE TWO—DENIAL OF THE RIGHT TO COUNSEL

       We begin our review with issue two as it is dispositive of this appeal. As noted by

appellate counsel, the record filed in this case “is a nightmare” and the reporter’s record

is “extremely confusing.” The following table sets forth a timeline for the termination

proceedings.


                September 14, 2018               Commencement of trial on the
                                                 merits without counsel

                September 24, 2018               Continuation of trial on the merits
                                                 without counsel

                October 4, 2018                  Continuation of trial on the merits
                                                 without counsel

                October 19, 2018                 Continuation of trial on the merits
                                                 without counsel

                November 19, 2018                Commencement of de           novo
                                                 hearing without counsel

                February 27, 2019                Continuation of de novo hearing
                                                 with appointment of counsel

                May 16, 2019                     Continuation of de novo hearing
                                                 with appointed counsel




                                             8
       At issue in this appeal is B.T.’s denial of the right to appointed counsel until

February 27, 2019, sixteen months after J.F. II was removed from B.T.’s care.                  In

assessing whether B.T.’s fundamental right to be represented by counsel has been

violated in this case, we are mindful that termination cases are to be resolved

expeditiously.    TEX. FAM. CODE ANN. § 263.401(a) (West 2019).               In light of those

considerations (a parent’s right to counsel and a child’s need for an expeditious resolution

of the proceedings), the history of this case illustrates an unnecessary and harmful delay

in appointing counsel.


       APPLICABLE LAW

       The bond between a parent and child is not given by law. It is endowed by our

Creator. In re A.M., No. 18-0905, 2019 Tex. LEXIS 1042, at *2 (Tex. Oct. 18, 2019) (citing

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (Blacklock, J., concurring in denial

of petition)).   The natural right existing between parents and their children is of

constitutional dimensions. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). See also

Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

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, 455 U.S. at 758-

59).


       A decree terminating the natural right between a parent and a child “is complete,

final, irrevocable and divests for all time that natural right as well as all legal rights, duties

and powers” between the parent and child. Holick, 685 S.W.2d at 20. In seeking to

permanently sever the parent-child relationship, the trial court must “observe



                                                9
fundamentally fair procedures.” In re E.R., 385 S.W.3d at 555. Consequently, termination

proceedings are strictly construed in favor of the parent. Id. at 563.


       Legal representation is a necessity and not a luxury. United States v. Chronic, 466

U.S. 648, 653, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). “Of all the rights that an accused

person has, the right to be represented by counsel is by far the most pervasive for it

affects [the parent’s] ability to assert any other rights [the parent] may have.” Id. at 654.

The complete denial of counsel at a critical stage of a proceeding is unfair and fails to

subject the prosecution’s case to “meaningful adversarial testing . . . .” Id. at 659.


       The Texas Family Code mandates that in a government-initiated termination of the

parent-child relationship, an indigent parent who responds in opposition to the termination

shall be provided with appointed counsel. TEX. FAM. CODE ANN. § 107.013(a)(1) (West

2019) (Emphasis added). Once a parent is determined to be indigent for purposes of

section 107.013, the parent is “presumed to remain indigent for the duration of the suit”

unless a motion for reconsideration is filed. § 107.013(e). See In re P.M., 520 S.W.3d

24, 26 (Tex. 2016) (holding that the right to appointed counsel under section

107.013(a)(1) applies to all proceedings, including proceedings in the Texas Supreme

Court).


       To trigger the process for mandatory appointment of counsel in a termination

proceeding, a parent must file an affidavit of indigence pursuant to Rule 145 of the Texas

Rules of Civil Procedure. TEX. R. CIV. P. 145. When, as here, an affidavit of indigence is

uncontested, it is conclusive as a matter of law. Pattison v. Spratlan, 539 S.W.2d 60, 61

(Tex. 1976), cert. denied, 429 U.S. 1001, 97 S. Ct. 531, 50 L. Ed. 2d 612 (1976).


                                             10
       Rule 145 has no deadline for parents to file the necessary documents to establish

their indigence. Neither does section 107.013 of the Family Code impose a time in which

to appoint counsel for indigent parents. However, given the seriousness of the rights at

stake; In re B.G., 317 S.W.3d 250, 257 (Tex. 2010), a trial court should address a parent’s

affidavit of indigence “as soon as possible—before the next critical stage of the

proceedings . . . .” In re V.L.B., 445 S.W.3d 802, 807 (Tex. App.—Houston [1st Dist.]

2014, no pet.). What then is the “critical stage” in a termination proceeding?


       According to In re V.L.B., a hearing, a mediation, a pretrial conference or, in

particular, a trial on the merits, are all critical stages of termination proceedings.

(Emphasis added). See id. See also In re J.O.A., 262 S.W.3d 7, 18 (Tex. App.—Amarillo

2008), modified, 283 S.W.3d 336 (Tex. 2009) (“A critical stage in a termination proceeding

is any stage where substantial rights of the parties may be affected.”).


       The Texas Supreme Court recently decided that a de novo hearing pursuant to

section 201.015 of the Texas Family Code is not a true “trial de novo” in the traditional

sense of that term. In re A.L.M.-F., No. 17-0603, 2019 Tex. LEXIS 426, at *12 (Tex. May

3, 2019). “It is a process that is mandatory when invoked but expedited in time frame and

limited in scope.” Id. (Emphasis added). In a de novo hearing, the parties may present

witnesses on the issues specified in the request for the hearing and the referring court

may consider the record from the trial before the associate judge. See In re N.V., 554

S.W.3d 217, 220 (Tex. App.—Amarillo 2018, pet denied).


       The commencement of the trial on the merits is the adversarial hearing at which

the governmental entity seeking to terminate the parent-child relationship marshals its


                                            11
proof. Without the guiding hand of counsel to test the Department’s evidence, the

adversarial process is presumptively unreliable. In re J.M.O., 459 S.W.3d 90, 94 (Tex.

App.—San Antonio 2014, no pet.) (citations omitted). The de novo stage of a termination

proceeding is merely a hearing before a different tribunal and not a true “trial de novo”—

a complete retrial on all issues. In re A.L.M.-F., 2019 Tex. LEXIS 426, at *10-12. It is

simply a “mechanism for reviewing an associate judge’s merits adjudications.” Id. at *12.

As such, a de novo hearing may actually be less important than the trial on the merits

before the associate judge in those situations where an adversarial hearing has taken

place and an order terminating parental rights has been entered.


      ANALYSIS

      B.T. asserts her due process rights were violated by the denial of appointed

counsel at the trial on the merits. That error, she maintains, was not cured when counsel

was later appointed for the continuation of the de novo hearing. We agree.


      Initially, we address the Department’s argument that B.T. waived her right to

counsel.   While this court acknowledges that preservation rules apply to parental

termination cases and complaints based on constitutional error; In re K.A.F., 160 S.W.3d

923, 928 (Tex. 2005) (citing In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)), those cases

are distinguishable. The Supreme Court in In re K.A.F. was addressing a parent’s failure

to timely file a notice of appeal, which was required to invoke the appellate court’s

jurisdiction. 160 S.W.3d at 928. In re B.L.D. involved the failure to preserve a complaint

on jury charge error in a parental termination case. 113 S.W.3d at 350. The Supreme

Court explained that the rationale behind preservation rules is to conserve “judicial



                                           12
resources by giving trial courts an opportunity to correct an error before an appeal

proceeds and to “promote fairness among litigants.” Id.


       In the underlying case, on the first day of the trial on the merits, B.T. asked if she

could “get an attorney. I need a court-appointed one, if you can.” Magic words were not

required to bring the matter to the trial court’s attention to preserve error for appellate

review. Sand Point Ranch, Ltd. v. Smith, 363 S.W.3d 268, 274 n.11 (Tex. App.—Corpus

Christi 2012, no pet.). After a two-week recess, the trial court asked B.T. if she wanted

an attorney “only if an extension [was] granted?” B.T. replied, “I need one regardless. I

would like one.” The record shows that B.T. made her complaint known to the trial court

and that the trial court ruled adversely to her. See TEX. R. APP. P. 33.1(a)(1). B.T.

provided the trial court with two opportunities to correct the decision to deny her appointed

counsel thereby satisfying the rationale expressed in In re B.L.D.


       Relying on In re S.M.T., No. 13-17-00064-CV, 2017 Tex. App. LEXIS 6795, at *33

(Tex. App.—Corpus Christi July 20, 2017, no pet.) (mem. op.), and Medley v. State, 47

S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d), the Department advances another

argument in support of its position that B.T. waived her right to counsel. In Medley, this

court recognized that a waiver of counsel could ordinarily be withdrawn and the right to

counsel reasserted and granted if it did not (1) interfere with the orderly administration of

the business of the court, (2) result in unnecessary delay or inconvenience to witnesses,

or (3) prejudice the State. 47 S.W.3d at 24. The parent in In re S.M.T. specifically waived

his right to counsel at a hearing even though he had previously filed an affidavit of

indigence. 2017 Tex. App. LEXIS 6795, at *33. In that case, he insisted on representing

himself even after being admonished by the trial court about his right against self-

                                             13
incrimination. When the parent later asked for counsel because he did not understand

his legal rights, the trial court denied his request. Id. at *35. Citing Medley, the court in

In re S.M.T., found the parent had failed to meet his burden to show that appointment of

counsel would not cause delay or prejudice. Id. at *37.


       We reject the Department’s arguments that B.T. waived her right to counsel. To

equate the circumstances in In re S.M.T. and Medley with the facts in the underlying case

is insincere. B.T. first sought and was granted appointed counsel in November 2017.

The presumption of her indigence continued even though she retained counsel for a brief

period. After repeated denials of her requests for court-appointed counsel, she sought

continuances to retain new counsel. Any unnecessary delay in the proceedings was not

attributable to B.T.; rather, the delay was due to the trial court’s repeated refusals to

provide B.T. with appointed counsel.


       Denial of the right to counsel under section 107.013(a) is reversible error. See In

re E.A.F., 424 S.W.3d 742, 747 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); In

re J.M., 361 S.W.3d 734, 738-39 (Tex. App.—Amarillo 2012, no pet.); In re C.D.S., 172

S.W.3d 179, 186 (Tex. App.—Fort Worth 2005, no pet.). See also In re M.P., No. 02-18-

00361-CV, 2019 Tex. App. LEXIS 904, at *4 (Tex. App.—Fort Worth Feb. 7, 2019, no

pet.) (mem. op.) (finding reversible error in proceeding to trial without first considering a

parent’s affidavit of indigence even after the Department conceded that upon the parent’s

filing of an affidavit of indigence, the trial court should have addressed it prior to

proceeding with the trial on the merits). There are two requirements for a parent to be

entitled to appointed counsel under the statute, both of which B.T. satisfied. First, the

parent must be indigent. It is undisputed that B.T. had been declared indigent by the

                                             14
former associate judge when termination proceedings were initiated in 2017.             The

associate judge who presided at the trial on the merits was also aware of B.T.’s indigent

status. B.T.’s presumption of indigence went unchallenged and thus, remained intact

throughout the proceedings. That she temporarily was represented by retained counsel

did not alter her status. See In re M.H., 02-18-00329-CV, 2019 Tex. App. LEXIS 2231,

at *4-6 (Tex. App.—Fort Worth March 21, 2019, no pet.) (mem. op.). In In re M.H., an

indigent parent had retained and then fired an attorney to represent him in a termination

proceeding. At the permanency hearing, the parent appeared pro se and the trial court

inquired on the status of his legal representation. When asked if he was asking for a

court-appointed attorney, he answered, “[n]o” but then responded, “[f]or today, Your

Honor, you can let me have one.” The trial court did not appoint an attorney and the

parent represented himself to the conclusion of the proceedings which resulted in

termination of his parental rights. Id. at *3-4. The Fort Worth Court concluded that it was

the trial court’s responsibility, not the pro se litigant’s, to clarify any ambiguity on

representation before proceeding with the trial and held “the trial court reversibly erred by

failing to . . . have an attorney appointed to represent [the parent] during the termination

hearing.” Id. at *6.


       Second, the parent must oppose the Department’s petition. B.T. demonstrated

her resistance to the termination proceedings. She zealously represented herself despite

her unambiguous and repeated requests for appointed counsel. The two instances in

which she did not appear at trial were due to medical issues that required hospitalization—

a matter also uncontested by the Department. The proceedings continued without her

presence and without an advocate to defend her parental rights.


                                             15
       The Department argues that the denial of counsel at the trial on the merits did not

harm B.T. because she was subsequently appointed counsel for the de novo hearing.

We find the subsequent appointment of counsel to be “too little, too late” because the

referring court, in its de novo review, announced that it was considering the record from

the trial on the merits before the associate judge. In doing so, it expressly indicated that

it was considering evidence developed during a part of the proceeding where B.T.’s right

to counsel was violated and where the Department’s evidence was not subjected to the

rigors of cross-examination in an adversarial process.


       The Department’s argument that the child’s need for permanence through an

expedited process was paramount was rendered meaningless when the prolonged delay

in appointing counsel exacerbated the delay in the proceedings. More than a year after

B.T. first requested counsel, the referring court finally appointed counsel for the de novo

hearing, which unlike the trial on the merits, was limited in scope by statute.        The

appointment of counsel occurred only after the de novo hearing had already commenced.

Commencing the de novo hearing anew with B.T. having court-appointed counsel did not

cure the error caused by the trial court in denying B.T. appointed counsel for the entire

trial on the merits—a critical stage of the termination proceedings. In fact, the referring

court’s announcement that it had read and would be considering the cold record from the

trial on the merits compounded the error. The evidence from the trial on the merits was

not subjected to effective cross-examination putting in issue its reliability as support for

permanently severing the parent-child relationship.


       The heightened standard of review that applies to termination proceedings is

rendered meaningless when a parent is left without legal representation at a critical stage

                                            16
of the proceedings.     A delayed appointment of counsel for an indigent parent who

opposes a government-initiated termination and requests counsel may “render the

ultimate appointment a toothless exercise.” In re V.L.B., 445 S.W.3d at 807. As such,

we find the trial court’s denial of court-appointed counsel to represent B.T. during the trial

on the merits constitutes reversible error.


       Generally, finding error requires a harm analysis under Rule 44.1(a)(1). TEX. R.

APP. P. 44.1(a)(1). See also In re E.A.G., 373 S.W.3d 129, 144 (Tex. App.—San Antonio

2012, pet. denied) (applying Rule 44.1(a) to a trial court’s erroneous ruling on admission

of expert testimony); In re S.P., 168 S.W.3d 197, 210 (Tex. App.—Dallas 2005, no pet.)

(finding that an erroneous evidentiary ruling caused the rendition of an improper

judgment). However, a violation of the statutory scheme mandated by section 107.013(a)

of the Family Code presumes that a parent was prejudiced. See In re A.J., 559 S.W.3d

713, 722 (Tex. App.—Tyler 2018, no pet.) (citation omitted). Therefore, this court need

not conduct a harm analysis under Rule 44.1(a). Issue two is sustained. Our disposition

pretermits consideration of issue one. TEX. R. APP. P. 47.1.


       CONCLUSION

       The trial court’s Order of Termination is reversed and the cause is remanded to

the trial court for further proceedings. Any retrial of this case must commence no later

than 180 days after this court issues mandate. TEX. R. APP. P. 28.4(c).



                                                   Patrick A. Pirtle
                                                       Justice




                                              17
