in the Interest of D. D., a Child

NO. 12-22-00250-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§ APPEAL FROM THE
IN THE INTEREST OF D.D.,
§ COUNTY COURT AT LAW NO. 1
A CHILD
§ HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION
D.D., the father of the minor child D.D., 1 appeals the trial court’s order terminating his
parental rights. In his sole issue, Appellant contends he was “deprived of his due process right to
court-appointed counsel at meaningful stages of the case.” We affirm.

BACKGROUND
On June 29, 2021, the Department of Family and Protective Services (the Department) filed
an original petition for protection of a child, for conservatorship, and for termination. In its petition,
the Department asserted that Appellant is the alleged father of D.D. and sought a determination of
parentage pursuant to Chapter 160 of the Texas Family Code, as well as termination of Appellant’s
parental rights. 2 The Department asserted that if Appellant were established as D.D.’s father, his
parental rights should be terminated because, among other things, he knowingly placed or allowed
D.D. to remain in conditions or surroundings that endangered her physical or emotional well-being,
engaged in conduct or knowingly placed D.D. with persons who engaged in conduct that
endangered her physical or emotional well-being, and failed to comply with the provisions of a
court order that specifically established the actions necessary for him to obtain the return of the

1
For clarity, because the child’s father and the child share the same initials, we will refer to the child’s father
as “Appellant” in this opinion.
2
The Department also sought termination of the parental rights of the child’s mother, who did not file a notice
of appeal.
child. According to the affidavit in support of removal, signed by Department caseworker Candice
Roberts, the Department received a priority one report alleging “drug use in the home and a newborn
being born in the home.” The affidavit also indicated that when Roberts interviewed Appellant at
the Henderson County jail, he told her that the child’s mother “actively used methamphetamine and
marijuana one week prior to his arrest[]” and that he would not be surprised if she were using drugs
again.
On July 16, 2021, Appellant requested appointment of counsel to represent him. Thereafter,
the Department filed a motion for genetic testing, and on July 22, the trial court signed an order for
genetic testing. On July 29, the trial court conducted an adversary hearing, at which it heard
testimony from Roberts and CASA representative Kathy Moreland. Roberts testified that Appellant
was incarcerated for possession of methamphetamine and assault causing bodily injury. She also
explained that Appellant requested a DNA test. Roberts opined that having the Department continue
as D.D.’s temporary managing conservator and remaining in her foster home is in D.D.’s best
interest. Moreland likewise recommended continuation of the “status quo.” At the end of the
adversary hearing, the trial judge approved D.D.’s placement, ordered that the Department remain
as D.D.’s temporary managing conservator, and stated that he would order genetic testing.
On August 27, 2021, the trial court conducted a status hearing, at which Department
caseworker Kadie Richburg and Moreland briefly testified. According to Richburg, Appellant
“stated that the only reason he needed the DNA testing was so he could take it to the Indian
reservation, but that he knew [D.D.] was his.”
On December 10, 2021, the trial court conducted an initial permanency hearing, at which
Department caseworker Kimberly Coursey testified that Appellant tested positive for
methamphetamine in November. The trial court also heard testimony from Moreland, who again
recommended continuation of the “status quo.” Appellant briefly testified regarding potential
family members with whom D.D. could be placed. After the witnesses testified, the trial judge
stated, “I know – first of all, you have applied for a [c]ourt-appointed attorney. . . . I can’t appoint
one until you’re established as the father . . . . [S]tatutorily, . . . you’re not entitled to an attorney.”
The trial judge further stated, “we do need to get the DNA test done[.]” At the conclusion of the
hearing, the trial judge maintained the Department as temporary managing conservator and

2
approved D.D.’s placement. Appellant told the trial judge, “I have written you a letter[,]” and the
judge responded that he could not read the letter because it is an ex parte communication. 3
On February 15, 2022, the Department filed a motion to adjudicate paternity, in which it
asserted that DNA testing showed a 99.99% probability that Appellant is D.D.’s biological father.
The trial court appointed an attorney to represent Appellant on February 17. On April 8, the trial
court conducted a permanency review before final hearing, at which Appellant was represented by
appointed counsel. On April 18, the trial judge signed an order adjudicating Appellant as D.D.’s
father. After Appellant moved for an extension of the trial court’s jurisdiction for an additional 180
days due to the existence of potential issues under the Indian Child Welfare Act (ICWA), the trial
court signed an order extending the dismissal date to December 31.
On August 29, 2022, the matter proceeded to trial, following which the trial court found that
Appellant knowingly placed or allowed D.D. to remain in conditions or surroundings that
endangered her physical or emotional well-being, engaged in conduct or knowingly placed D.D.
with persons who engaged in conduct that endangered her physical or emotional well-being, and
failed to comply with the provisions of a court order that specifically established the actions
necessary for him to obtain the return of D.D. The trial court also found that termination of
Appellant’s parental rights is in D.D.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(E), (O) (West 2022). The trial court signed an order terminating Appellant’s parental rights on
September 7, 2022. This appeal followed.

RIGHT TO APPOINTED COUNSEL
In his sole issue, Appellant contends he was “deprived of his due process right to a court-
appointed counsel at meaningful stages of the case.” Specifically, Appellant asserts that the trial
court denied him counsel by conducting the adversary hearing and other subsequent hearings
without appointing counsel to represent him, and that it denied his request for appointed counsel
“until DNA tests were completed.”
Applicable Law
In a suit by a governmental entity in which termination of the parent-child relationship is
requested, the court shall appoint an attorney ad litem to represent the interests of “an indigent

3
The record reflects that Appellant sent the trial court two letters, in which he opposed termination of his
parental rights and referred to D.D. as his daughter.

3
parent” of the child who responds in opposition to the termination, an alleged father who failed to
register with the paternity registry and whose identity or location is unknown, and an alleged father
who registered with the paternity registry but could not be served with citation. Id. § 107.013(a)(1),
(3), (4) (West 2019). “Parent” is statutorily defined as “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.” 4 Id. § 101.024(a) (West 2019). The Texas Family Code sets forth
the requirements for an acknowledgment of paternity. See id. §§ 160.201(b) (west 2022) (setting
forth means by which father-child relationship is established, including “an effective
acknowledgment of paternity”), 160.302(a) (West 2022) (setting forth requirements for valid
acknowledgment of paternity); see also id. § 160.312(a)(1) (West 2022) (requiring vital statistics
unit to prescribe forms for acknowledgment of paternity). The Texas Family Code requires the trial
court to admonish a “parent” at the first hearing at which the parent appears of (1) his right to be
represented by an attorney and (2) the right to have an appointed attorney if he is indigent. Id. §
107.013(a-1)(1), (2) (West 2019). Additionally, the Texas Family Code requires the trial court to
advise a “parent” of his right to be represented by an attorney before commencing a full adversary
hearing, at each status hearing, and at each permanency hearing. Id. §§ 262.201(c) (West Supp.
2022), 263.0061(a) (West 2019).
Analysis

Appellant contends that our holding in In re A.J., 559 S.W.3d 713 (Tex. App.—Tyler 2018,
no pet.) is controlling. In that case, the trial court did not appoint counsel to represent the child’s
alleged father, J.B.J., Jr., until “the case was nine days short of the dismissal deadline” and trial had
begun. In re A.J., 559 S.W.3d at 716, 722. As Appellant points out, we concluded in In re A.J.
that the risk of loss of the parent-child relationship weighs heavily in favor of providing an attorney
before commencement of the termination trial and admonishment of the right to counsel at the
statutorily mandated time, and we held that the trial court deprived J.B.J., Jr. of procedural due
process and denied him a meaningful opportunity to participate in the proceeding. Id. at 720-21.
We conclude that In re A.J. is distinguishable from this case. In the instant case, the trial
court appointed counsel to represent Appellant approximately nine months after the case was filed.

4
Appellant does not argue that he is presumed to be D.D.’s father. See TEX. FAM. CODE ANN. § 160.204(a)
(West 2022) (defining circumstances under which man is presumed to be child’s father).

4
The trial court appointed counsel to represent Appellant within two days of receiving the
Department’s motion to adjudicate paternity, which was over six months before trial, and Appellant
was represented by appointed counsel for all remaining proceedings, including trial. 5 Additionally,
to the extent that our holding In re A.J. was based upon the Texas Family Code’s definition of
“parent” rather than “alleged father,” we clarify that the Texas Family Code provisions which set
forth the requirements for advising an indigent parent of his right to counsel and providing him with
appointed counsel do not govern in this case because Appellant is an alleged father. Rather, the
provisions regarding an alleged father apply. See TEX. FAM. CODE ANN. § 107.013(a)(1), (3), (4).
As discussed above, the trial court is statutorily required to appoint an attorney only for an
indigent “parent,” an “alleged father” who failed to register with the paternity registry and whose
identity or location is unknown, or an “alleged father” who registered with the paternity registry but
who could not be served with citation. See id. Appellant did not fit the statutory definition of
“parent” until the trial court adjudicated him to be D.D.’s father; that is, he was not presumed to be
D.D.’s father, he had not been legally determined to be the father, he had not been adjudicated to
be D.D.’s father, and he did not acknowledge his paternity under applicable law. See id.
§ 101.024(a). Moreover, although Appellant is an alleged father, neither his identity nor his location
were unknown, and the record reflects that he was served with citation and did not register with the
paternity registry. Therefore, the trial court was not required to appoint counsel for him before it
did so. See id.; see also TEX. FAM. CODE ANN. § 107.013.
Appellant argues that “[t]he ability to be represented by counsel after admitting to paternity
cannot rise and fall on the completion of a DNA test of which the parent has no control over the
timing[.]” The record reflects that Appellant knows he is D.D.’s father and that he requested DNA
testing solely due to ICWA issues. Appellant could have acknowledged his paternity as required
by law without waiting for the DNA results, as set forth in Sections 160.201(b) and 160.302(a) of
the Family Code. See TEX. FAM. CODE ANN. §§ 160.201(b) (West 2022) (setting forth means by
which father-child relationship is established, including “an effective acknowledgment of
paternity”), 160.302(a) (West 2022) (setting forth requirements for valid acknowledgment of
paternity); see also id. § 160.312(a)(1) (West 2022) (requiring vital statistics unit to prescribe forms
for acknowledgment of paternity). Appellant does not argue that Sections 101.024 and 107.013 of

5
The record indicates that during the first nine months of the case, the trial court conducted the adversary
hearing, a status hearing, and an initial permanency hearing.

5
the Texas Family Code are facially unconstitutional or unconstitutional as applied to him, nor does
he argue that due process mandates greater protection than those statutes provide.
We hold that the trial court did not deprive Appellant of a right to court-appointed counsel
and, therefore, did not deprive Appellant of procedural due process. See TEX. FAM. CODE ANN.
§§ 101.024, 107.013(a)(1), (3), (4). Accordingly, we overrule Appellant’s sole issue.

DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered February 15, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

6
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 15, 2023

NO. 12-22-00250-CV

IN THE INTEREST OF D.D., A CHILD

Appeal from the County Court at Law No. 1
of Henderson County, Texas (Tr.Ct.No. FAM21-0414-CC1)

THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below for
observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.