                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-19-00235-CV

                   IN THE INTEREST OF S.R., JR., A CHILD



                           From the 278th District Court
                              Madison County, Texas
                             Trial Court No. 18-16060


                           MEMORANDUM OPINION


       Amy and S.R., Sr. appeal from a judgment that terminated their parental rights to

S.R., Jr.   Amy complains that the trial court erred by not providing proper

admonishments regarding the appointment of counsel and by refusing to timely appoint

counsel, the trial court erred by failing to determine the child's status as an Indian child

pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §1912, and that the

Department erred by failing to inquire as to the child's status as an Indian child once it

was put on notice. S.R., Sr. complains that the trial court erred by failing to properly

admonish him and denying his request for appointed counsel at the adversary hearing,

that the evidence was insufficient for the trial court to have terminated his rights pursuant

to Family Code Section 161.001(b)(1)(D), and that the trial court erred by failing to
determine the child's status as an Indian child pursuant to the ICWA. Because we find

that the trial court reversibly erred in not properly admonishing Amy and S.R., Sr., we

reverse the judgment of the trial court and remand this proceeding for a new trial.

REQUEST FOR COUNSEL

         In Amy and S.R., Sr.'s first issues, they complain that the trial court erred by not

properly admonishing them or appointing them counsel at the adversary hearing

conducted shortly after S.R., Jr.'s removal. When Amy and S.R., Sr. appeared at the

adversary hearing, there had been an agreement reached regarding the placement of the

child. However, prior to taking testimony, the Department advised the trial court that

Amy and S.R., Sr. were requesting the appointment of counsel. The trial court denied

their request at that time because the trial court determined that because the parents were

agreeing with the temporary placement of S.R., Jr. with Amy's parents, they were not in

opposition to the lawsuit. Shortly after the adversary hearing, the parents jointly filed a

pro se motion to dismiss the case. At the status hearing, the trial court did not admonish

the parents regarding their right to counsel. At the end of the first permanency hearing,

when the Department indicated that it wished to remove the child from its agreed

placement with Amy's parents, both parents ultimately requested and were appointed

separate counsel, who represented them throughout the rest of the proceedings.

         S.R., Sr. argues that the trial court's failure to admonish him properly regarding

his right to counsel and to appoint him counsel at the adversary hearing irreparably

prejudiced his case. Amy requests that the proceeding be reversed and remanded so that

In the Interest of S.R., Jr., a Child                                                  Page 2
she could be properly admonished regarding the right to counsel at the onset of the

lawsuit.

         Section 107.013(a)(1) mandates the appointment of an attorney ad litem for an

indigent parent who opposes the termination of the parent-child relationship in a suit

filed by the Department. TEX. FAM. CODE ANN. § 107.013(a)(1). 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;    In    re    B.C.,   No.   19-0306   (Tex.,   Dec.   20,   2019),   available   at

https://www.txcourts.gov/media/1445387/190306.pdf.

         Additionally, the trial court is required to admonish a parent at the first hearing at

which the parent appears of: (1) their right to be represented by an attorney, and (2) if

they are indigent and appearing in opposition to the suit, the right to have an attorney

appointed to represent them in the proceedings. TEX. FAM. CODE ANN. § 107.013(a-1)(1),

(2). Additionally, at the status hearing and all permanency hearings, the trial court is

required to admonish a parent who is not represented by an attorney of the right to be

represented by an attorney, and if they are indigent and appear in opposition of the suit,

of their right to a court-appointed attorney. TEX. FAM. CODE ANN. § 263.0061(a)(1).

         The record does not indicate that the trial court gave the parents the proper

admonishments at the adversary hearing, the status hearing, or the first permanency

hearing. At the adversary hearing, the parents and the Department reached an agreement

for the temporary placement of the child, which the trial court informed the parents

In the Interest of S.R., Jr., a Child                                                           Page 3
meant that they were not in opposition to the suit, and refused to consider appointing

counsel for either parent. The record indicates that although they were in agreement with

placing the child temporarily with Amy's parents, both Amy and S.R., Sr., but particularly

S.R., Sr., were not in agreement with the Department's involvement. The trial court erred

by not providing the proper admonishments to the parents regarding their right to

counsel for the adversary hearing, the status hearing, and the first permanency hearing.

However, the duty to appoint counsel was not triggered because the parents had not filed

an affidavit of indigency required by Section 107.013(d), although the record appears to

show that the trial court did not allow them to do so because of its erroneous belief that

the parents were not in opposition to the suit. See In re B.C., No. 19-0306 (Tex., Dec. 20,

2019), available at https://www.txcourts.gov/media/1445387/190306.pdf.

         As relevant to this proceeding, Rule of Appellate Procedure 44.1(a)(1) states that

this judgment may not be reversed unless this Court concludes that the error "probably

caused the rendition of an improper judgment." TEX. R. APP. P. 44.1(a)(1); In re B.C., No.

19-0306               (Tex.,            Dec.   20,       2019),         available        at

https://www.txcourts.gov/media/1445387/190306.pdf. Amy and S.R., Sr. were deprived

of the appointment of counsel prior to the adversary hearing, and were subsequently

without counsel at the status hearing, the dismissal hearing, and the first permanency

hearing conducted by the trial court. While Amy and S.R., Sr. were ultimately appointed

counsel near the end of the first permanency hearing, they were without counsel for

approximately one-third of the time the case was pending. At the first permanency

In the Interest of S.R., Jr., a Child                                                Page 4
hearing, the Department was recommending removal of the child from Amy's parents

due in part to conduct of Amy and S.R., Sr. Both Amy and S.R., Sr. testified in the hearings

without the benefit of the advice of counsel. Their conduct after the adversary hearing

and the testimony that was given at those hearings where they were unrepresented was

included in the evidence presented at trial in determining whether or not they had

completed their service plans and was relevant to the best interest finding supporting the

termination. In this case, given the circumstances, we find that the error was not harmless

and reversal is required.               TEX. R. APP. P. 44.1(a)(1).   We reverse and remand this

proceeding for a new trial. Amy and S.R., Sr.'s first issues are sustained. Because we

have determined that this proceeding is to be reversed for a new trial, it is not necessary

to address Amy and S.R., Sr.'s other issues.

CONCLUSION

         Having found that the trial court erred by failing to properly admonish the parents

of their right to counsel, we reverse the judgment of the trial court and remand this

proceeding for a new trial.



                                                    TOM GRAY
                                                    Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Reversed and remanded
Opinion delivered and filed December 31, 2019
[CV06]


In the Interest of S.R., Jr., a Child                                                      Page 5
