JANE BLAND
Reversed and remanded.
Christopher Buck, Buck Law Firm, P.L.L.C., Houston, TX, for Appellant. Vince Ryan, County Attorney, Sandra D. Hachem, Sr. Assistant County Attorney, Houston, TX, for Appellee.
Panel consists of Justices JENNINGS, BLAND, and MASSENGALE.
OPINION ON REHEARING
JANE BLAND, Justice.
The Department of Family and Protective Services has moved for rehearing, asking that we clarify our opinion and judgment to reverse only the portion of the trial court's judgment terminating K.M.'s parental rights and leave intact the trial court's termination of the rights of the alleged and unknown fathers, a ruling that was not challenged on appeal. We grant rehearing, withdraw our opinion and judgment of August 14, and issue the following in their stead.
K.M. appeals the termination of her parental rights to her daughter, V.L.B., contending that the trial court violated her statutory right to appointment of counsel and her constitutional due process rights. In particular, she complains that the trial court erred in trying the termination case against her on the merits before considering an affidavit of indigence that she had filed a week earlier. We reverse the portion of the trial court's judgment terminating K.M.'s parental rights, including the findings of fact and conclusions of law supporting that ruling, and remand that portion of the cause for a new trial. We leave undisturbed the remainder of the trial court's judgment.
• request a hearing or trial on the merits;
• consent or refuse to consent to an interview of the parent by another attorney;
• receive a copy of each pleading or other paper filed with the court;
• receive notice of each hearing in the suit;
• participate in any case staffing conducted by the Department in which the parent is invited to participate; and
• attend all legal proceedings in the suit.
Id. § 107.0131(1).
An attorney ad litem appointed for a parent under Chapter 107 who fails to perform the duties required by Section 107.0131 is subject to disciplinary action. See Tex. Fam.Code Ann. § 107.0133. These expansive duties are commensurate with the seriousness of the rights at stake. See In re B.G., 317 S.W.3d 250, 257 (Tex.2010); In re C.L.S., 403 S.W.3d at 20.
Considering the mandatory nature of the appointment of counsel upon a finding of indigency, and the appointed attorney's specific obligations in connection with representing an indigent parent, a trial court should address a parent's affidavit of indigence as soon as possible—before the next critical stage of the proceedings, whether it be a hearing, a mediation, a pretrial conference, or, in particular, a trial on the merits, and allow a reasonable time for appointed counsel to make necessary preparations. See Tex. Fam.Code Ann. §§ 107.0131, 107.133. When an indigent parent seeks representation before a critical stage of the proceedings, and the trial court nonetheless proceeds with that stage, the delay may render the ultimate appointment a toothless exercise and irreparably impair the parent's ability to defend the case or regain custody of the child.
In this case, K.M. filed her affidavit of indigence a week before the trial setting. The case's statutory dismissal date was two months after the trial setting, and no party had yet asked for the dismissal date to be reset. The commencement of trial on December 10 was a critical stage of the termination proceedings, at which the indigent mother was not represented by counsel. Under these circumstances, we hold that the trial court erred in failing to first consider K.M.'s affidavit of indigency and appoint an attorney ad litem to represent her before proceeding with the termination trial. See Tex. Fam.Code Ann. §§ 107.013(d), 107.0131(1).
Conclusion
We hold that the trial court erred in failing to appoint an attorney ad litem for K.M. before proceeding with a trial on the merits. We therefore reverse the portion of the trial court's judgment terminating K.M.'s parental rights, including the findings of fact and conclusions of law supporting that ruling, and remand that portion of the cause for a new trial. We leave undisturbed the remainder of the trial court's judgment.