Chapter 6 – Legal Representation of Parents in CPS Cases
This Chapter is derived primarily from an article written by the Karin E. Bonicoro, Judge of the Child Protection Court of Central Texas. Special thanks to Judge Bonicoro for this important contribution.
The Right to Appointed Counsel
A parent’s right to legal representation in a CPS case is not a constitutionally guaranteed right.[1] Rather, the appointment of an attorney to represent a parent in a CPS case is statutorily mandated in the Texas Family Code.[2] The Texas Supreme Court has held that the statutory right to court-appointed counsel includes the right to have that representation be effective.[3] Parents in CPS cases often are unfamiliar with the procedures and substantive law that apply to such cases. It is the duty of the parent’s attorney to provide effective assistance to the parent throughout the CPS case. Without competent representation, a parent may be denied a fair process in a case in which their parental rights are at stake. If the process is not fair, then we have not served the best interests of the child.
Attorney appointments are handled in a variety of ways depending on the jurisdiction where the suit is filed, but in all jurisdictions, the county in which the attorney is appointed is responsible for payment of the attorney fees.[4] Because each county determines the amount of attorneys’ fees, compensation for appointed attorneys varies widely around Texas. If the parents are indigent, the county must pay the court appointed attorneys according to the fee schedule set for defense of juveniles under Title 3.[5]
To be entitled to appointment of an attorney in the trial court, a parent must both “respond in opposition” to the suit and establish indigence. A parent is not required to file pleadings or use particular words of art in order to “respond in opposition” to the suit. Simply appearing and stating on the record “I want my rights” is enough.[6]
Appointment of Attorney Where Indigence Required: The timing of the appointment of an attorney ad litem for an indigent parent who appears in opposition in the case has been a matter of debate. Before September 1, 2005, the question turned on when the Department was actually requesting termination of parental rights. Since that date, the right to court-appointed attorney arises when the Department files suit “requesting temporary managing conservatorship” of the parent’s child. Since a TMC order is necessary for placement of a child in foster care, this new provision seems to give the parent an immediate right to request appointed counsel.
The statute does not explicitly set a deadline for the court to make the appointment. The question probably remains whether the timing of the appointment denied the parent due process.[7] To obtain reversal for late appointment of counsel, the appellant must “show that the trial court's failure to timely appoint counsel probably caused the rendition of an improper judgment or probably prevented her from properly presenting the case to [the appellate] court.”[8] Because the right to an appointed counsel includes the right to have representation be effective,[9] it is probable that appointment of counsel made so late in the process as to render that representation ineffective would violate due process.
However, a parent who is personally served in a termination case and who does not respond to the citation or appear in court in opposition to the termination is not entitled to the appointment of an attorney ad litem, even if indigent. With limited exceptions, the trial court has a mandatory duty to appoint counsel only if the case is (1) a suit filed by a governmental entity (2) for the termination of parental rights or requesting temporary managing conservatorship of the parent’s child, and (3) the parent responds (4) in opposition and (5) establishes indigence.[10] No hearing is required on the claim of indigence unless an affidavit if indigence is filed by the parent requesting a court-appointed attorney.[11] The parent must provide an affidavit of indigence before the court may conduct a hearing to determine the parent’s indigence. The affidavit must meet the requirements set forth in Texas Rule of Civil Procedure 145(b).[12]
The Family Code gives no guidance with respect to what constitutes indigence for the purpose of court appointed trial attorney in a CPS case. A trial court’s determination that a parent is not indigent is reviewed under an abuse of discretion standard. One court of appeals has held that “indigent” means “a person who does not have the resources, nor is able to obtain the resources, to hire and retain an attorney for representation in the termination case.”[13]
Appointment of Attorney Without Proof of Indigence: The Family Code requires appointment of an attorney for the parent without proof of indigence for: (1) a parent who was served by publication; (2) an alleged father who failed to register with the paternity registry and whose identity or location is unknown; or (3) an alleged father who registered with the registry, but could not be served at the address provided to the registry or at any other address known to the petitioner.[14] It should be noted that a parent in any of these categories who actually appears in person or is subsequently personally served does not continue to have an automatic right to court- appointed counsel under these subsections. The right to court-appointed counsel for a parent who is personally served or personally appears in the case must be established under Tex. Fam. Code § 107.013(a)(1) or (c).
NOTE: Alleged Fathers Whose Identity & Whereabouts are Known. The Tex. Fam. Code § 101.024 defines “parent” to mean: the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father.[15]
Section 101.024 does not define an alleged father whose identity and location are known as a parent; and § 107.013 does not require that the court appoint him an attorney. His legal status as a parent must be established by one of the means outlined in § 101.024. Therefore, an alleged father who responds in opposition to the suit, and is indigent, is not entitled to an appointed attorney until he acquires status as a “parent.” For example, assume an alleged father appears and requests paternity testing to determine if he is the biological father of the child. Until he is adjudicated the father, based on the results of the DNA testing, his right to an appointed attorney does not attach.[16] Thus, the indigent alleged father must temporarily proceed pro se.
Appointment of Counsel for a Parent with Mental or Emotional Illness, or Mental Deficiency: In cases in which the Department pleads as a ground for termination that the parent has a mental or emotional illness or a mental deficiency that in all probability renders the parent unable to provide for the physical, emotional and mental needs of the child until the child’s eighteenth birthday, the court must appoint the parent an attorney immediately after the filing of the suit.[17] This appointment is without regard to indigence.[18] The parent may retain a different attorney and the court appointed attorney may be discharged, but only “with the permission of the court.”[19]
What if the Department Fails to Plead Section 161.003 as a Ground for Termination of an Incapacitated Parent? If the Department does not plead §161.003 as a ground for termination at the beginning of the case, the immediate right to an appointed attorney is not triggered. For example, the Department may not have previous history with the parent and may not yet have results from evaluations identifying a qualifying mental or emotional illness or mental deficiency. In this circumstance, the earliest point in the proceedings at which appointment of an attorney for the §161.003 parent might be raised is the adversary hearing.[20] One might ask whether a parent who has a mental or emotional illness or a mental deficiency contemplated in §161.003 will possess sufficient capacity or understanding to invoke the right to counsel? Additionally, as already noted, the right to counsel under § 107.013 does not immediately attach. Even if the § 161.003 parent requests an attorney, she must also establish indigence in order to qualify for an appointed attorney under § 107.013, a hurdle the parent is not required to overcome under section § 161.003.[21] If the parent does not successfully invoke the right to counsel under § 107.013(a), the court may not have a basis to order appointed counsel under § 161.003 until evaluations suggest such an appointment is appropriate. An alternative might be for the court to make a discretionary appointment of counsel if the court has reason to believe, and finds that, the parent is incapacitated.[22]
Appointment to Represent a Parent: With rare exception, the earliest point in the case when you will be appointed to represent a parent is the Chapter 262 adversary hearing held within 14 days after the date the child was taken into possession by the Department, assuming the child has not been returned home earlier.[23] The adversary hearing is also referred to as the “262" hearing or the “14-day hearing.” This is typically the first contested hearing in the case and, therefore, the first time the indigent parent may appear in opposition to the suit.
NOTE: At the adversary hearing, if the court finds that the parent is entitled to an appointed attorney, the court should reset the hearing to allow the appointed attorney to be notified, prepare for the hearing, and appear on behalf of the parent. However, if the Court appoints an attorney who is present in the courtroom at the adversary hearing itself, it is left to the attorney to confer with the parent about whether to proceed or request a continuance.
This manual assumes that the attorney was appointed to represent the parent in time to prepare for the adversary hearing. Even if the attorney is appointed later, much of the material on preparing for the adversary hearing remains relevant in preparing any CPS case. Note that temporary orders are always under the plenary jurisdiction of the trial court, and the attorney appointed to represent a parent may file a motion for further temporary orders if those entered without counsel at the adversary hearing are seriously deficient.
It is at the adversary hearing that the Court will decide whether to return the child(ren) home or issue a temporary order under Chapter 105 of the Family Code.[24] Typically, the Department has already been named the temporary managing conservator of the child(ren) in an ex parte hearing. If not, the Department will seek appointment as temporary managing conservator at the adversary hearing. The date the Department is appointed the temporary managing conservator begins the running of: (1) the time lines for subsequent hearings and (2) the deadline for reaching permanency under Chapter 262.[25]
What Are My Duties Once I Am Appointed to Represent a Parent? With the exception of §107.001(2), the Texas Family Code does not address any special duties and responsibilities to the parent-client.[26] Section 107.001(2) provides that an “attorney ad litem” means an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.”[27] Therefore, the duties and responsibilities to the parent-client, are the same as with any other client, and may be found in those provisions of the Texas Disciplinary Rules of Professional Conduct that specify the lawyer’s duties to their client, in the context of the attorney-client relationship and as an officer of the court. (See State Bar Rules, Article X–Discipline & Suspension of Members).
Information Gathering In Preparation for Client Interview.
Some practitioners conduct extensive information gathering before the initial meeting with, and interview of, their client. This can be a useful “fact-checking” tool if the client, for whatever reason, does not provide complete, or accurate, information. Additionally, preliminary fact gathering often aids the practitioner in discovering information potentially damaging to the client and in formulating questions for the initial client interview. Listed below are the typical collateral sources from which information about the case may be obtained.
The Court’s File: You may obtain access to the court’s file if you present a copy of the order appointing you to the district clerk’s office and request the file. If you want copies of the documents in the court’s file, and are court-appointed, the copies should be provided to you without charge. This practice varies from county to county. The court’s file should already contain the Department’s petition, a sworn affidavit, any written orders, returns of service, court appointments, notices of pending settings, and court reports.
The Original Petition: Each CPS case is initiated with the filing of an original petition, which usually pleads for conservatorship and/or termination of parental rights. The petition includes the names, addresses, birth dates, and social security numbers of the parties, and children, if known. The petition will also recite the grounds for termination on which the Department is proceeding, and the relief sought. The petition should be signed by the Department’s attorney, and include the attorney’s address, and telephone and facsimile numbers. It is not unusual for the Department to amend its petition as the case proceeds and additional information and facts unfold.
NOTE: If the petition pleads multiple grounds for termination of parental rights, cross reference the information in the sworn affidavit filed with the petition. This can be useful to determine which grounds for termination alleged in the petition are supported by facts recited in the sworn affidavit. If you are unable to determine the causes of action pleaded or the nature of the controversy from the four corners of the petition, special exceptions may be appropriate. [28]