A Guide to Getting a Court Appointed Attorney When a Governmental Entity is Attempting to Terminate Your Parental Rights

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1 A Guide to Getting a Court Appointed Attorney When a Governmental Entity is Attempting to Terminate Your Parental Rights Introduction If a governmental entity has brought a suit to terminate your parental rights, you may be able to receive representation from an attorney provided by the court. Read over this publication to find out more about your rights in this situation. What is a termination of parental rights? This type of suit is a suit affecting the parent-child relationship (SAPCR). The parent loses the rights and duties he or she has in relation to the child. 1 This means that under the law, you are legally no longer the parent of the child. 2 o The child may then be adopted. 3 o You might be subject to other requirements, such as paying child support and back child support (also known as child support arrears). 4 Current child support might have to be paid until the child is 18 or graduated from high school (whichever occurs later), until the child is married, until the death of the child, or if the child is disabled, for an indefinite period. 5 1 Tex. Fam. Code (b) 2 Tex. Fam. Code Tex. Fam. Code (b) 4 Tex. Fam. Code (a-1); Walker v. Sheaves, 533 S.W.2d 87, 91 (Tex. Civ. App. San Antonio 1976, writ ref d n.r.e.); Swate v. Swate, 72 S.W.3d 763, (Tex. App. Waco 2002, pet. denied). 5 Tex. Fam. Code (a-1)(2) 1

2 o o A biological or an adoptive grandparent may still have access to the child if they file an original suit or a suit for modification, and at least one biological or adoptive parent has not had their parental rights terminated. 6 7 The child will still have the right to inherit from and through the parent, unless the court provides otherwise. 8 Proceedings to terminate your parental rights are normally brought by a parent, the Texas Department of Family and Protective Services (DFPS) (aka Governmental Entity) or an authorized social agency. 9 A termination suit brought by the parent, seeking his or her own termination, is called a voluntary termination; while a suit brought by a third party is generally called an involuntary termination. 10 Who can receive a court-appointed attorney? If the termination suit is filed by the DFPS (governmental entity), the court must appoint an attorney to represent the interests of: An indigent parent who responds in opposition to the petition for termination 11 A parent served by citation by publication 12 An alleged father who failed to register with the paternity registry and whose identity or location is unknown 13 An alleged father who registered with the paternity registry, but could not be personally served at the address provided to the registry or at any other address for an alleged father known by the petitioner, despite the petitioner s diligent attempt to do so 14 6 Tex. Fam. Code Tex. Fam. Code (c) ( nothing in the [Suits Affecting the Parent-Child Relationship chapter of the Texas Family Code] precludes or affects the rights of a biological or adoptive maternal or paternal grandparent to reasonable access under Chapter 153 ) 8 Tex. Fam. Code (b) 9 Dorsaneo, Texas Litigation Guide (1) 10 Tex. Fam. Code , Tex.Fam. Code (a)(1) 12 Tex. Fam. Code (a)(2) 13 Tex. Fam. Code (a)(3) 14 Tex. Fam. Code (a)(4) 2

3 A person whose parental rights are subject to termination on the ground that the parent suffers from a mental or emotional illness or a mental deficiency that renders the parent unable to take care of the child 15 It should also be noted that in this type of suit, the court appoints an attorney for the child immediately after the suit is filed so the child s interests are represented. 16 What is an indigent parent? An indigent parent is someone who cannot afford to hire an attorney. 17 Meaning a parent who does not have the resources, and is not able to obtain the resources to hire and retain an attorney for representation in the termination case. Generally, to determine whether you are indigent, the Court will consider your income, the source of your income, any assets or property you own, your expenses, the number children or other dependents you have, and any income from your spouse available to you. 18 How can I request an attorney? 1. If you are an indigent parent and want the court to appoint an attorney for you, you must first respond in opposition to the petition You must make an appearance to formally oppose the termination. 20 There is nothing specific that you must say in order to oppose the termination and be granted a court-appointed attorney. Something as simple as showing up to the hearing and saying I want my rights is considered a response in opposition. 21 The Court must ask you whether you want to proceed without counsel. 22 You may waive this right, but only if you do so voluntarily and with the 15 Tex. Fam. Code (a)(b) 16 Tex. Fam. Code Dorsaneo, Texas Litigation Guide (1)(d) 18 Dorsaneo, Texas Litigation Guide (1)(d) 19 Dorsaneo, Texas Litigation Guide (1)(d) 20 In re C.D.S., 172 S.W.3d 179, 184 (Tex. App. Fort Worth 2005, no pet.) (mother responded in opposition when she testified at adversary hearing that she was opposed to the removal of the child) 21 In re T.R.R., 986 S.W.2d 31, 37 (Tex. App. Corpus Christi 1889, no pet.) (mother s appearance at hearing and her statement, I want my rights, constituted response in opposition.) 3

4 knowledge of the dangers and disadvantages of proceeding to trial without an attorney. 23 How can I let the Court know that I am indigent and in need of an attorney? If you want to claim that you are an indigent parent, you must file an affidavit of indigency before the Court can conduct a hearing to determine whether you are indigent. 24 o Click the link below for a form to do so: ivilcps/affidavit_appointment_atty_eng_form_civildistrictcps.pdf Note: The form also formally requests a court appointed attorney. An affidavit of indigency tells the court that you are unable to afford costs. 25 In your affidavit, you must include the following: 26 o All information about your identity, such as your name, date of birth, address(es), phone number(s), etc. o The nature and amount of any government income you receive, such as disability or food stamps. o The nature and amount of any employment income you receive. o Any other income you may have, such as interest. o Any cash or any money in a checking account you have. o The number of dependents you have, if any. o Your spouse s income, if available to you. o Any property you own other than your homestead property. o Any debts you owe. o Any and all of your monthly expenses Include in you affidavit the following statements: 27 o I am unable to pay the court costs. I verify that the statements made in this affidavit are true and correct. 22 Dorsaneo, Texas Litigation Guide (1)(d) 23 In re J.M., 361 S.W.3d 734, (Tex.App. Amarillo 2012, no pet. h.) 24 Tex. R. Civ. P. 145(b); Tex. Fam. Code (d) 25 Tex. R. Civ. P. 145(a) 26 Tex. R. Civ. P. 145(b) 27 Tex. R. Civ. P. 145(b) 4

5 The affidavit should be sworn and notarized before a notary public or other officer authorized to administer oaths. 28 File your affidavit with the court clerk. The clerk must docket the action, issue a citation, and provide any other customary service that would normally be provided to a party in a suit of this kind. 29 What does my court-appointed attorney do? Your court-appointed attorney will generally do some of the following: Interview you, each person who has significant knowledge of the case, and the other parties to the suit 30 Investigate the facts of the case 31 Represent you at hearings, mediations, pretrial matters, and the trial and obtain and review all files in the suit and conduct discovery if needed 32 Review and sign or decline to sign a proposed or agreed order affecting you 33 Encourage settlement and other ways of resolving the suit 34 Meet with you before each court hearing unless the Court says otherwise 35 The court-appointed attorney will be able to represent you up until the earliest of: 36 The date the suit is dismissed The date all appeals related to the termination of your rights are exhausted or waived 28 Tex. R. Civ. P. 145(b) 29 Tex. R. Civ. P. 145(a) 30 Tex. Fam. Code (a)(1)(A)(i-iii) 31 Tex. Fam. Code (a)(1)(B) 32 Tex. Fam. Code (a)(1)(C)(i-ii) 33 Tex. Fam. Code (a)(1)(F) 34 Tex. Fam. Code (a)(1)(E) 35 Tex. Fam. Code (a)(1)(G) 36 Tex. Fam. Code (2) 5

6 The date the attorney, after a finding of good cause by the Court, is relieved of his or her duties or replaced by another attorney 6

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