In the Interest of T. C. B. and T. M. B.--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

T.C.B. AND T.M.B.

Appeal from the

109th District Court

of Andrews County, Texas

(TC# 15,889)

MEMORANDUM OPINION

Appellant Eddie Lynn Baugh, Jr., appeals the order terminating his parental rights to his two children T.C.B. and T.M.B. Finding that Baugh was denied the fundamental right to counsel, we reverse.

Facts

The mother of the children filed a petition to terminate the parent-child relationship between T.C.B. and T.M.B. and their biological father Eddie Lynn Baugh, Jr., on January 7, 2002. Among the grounds in the petition are that Baugh voluntarily left the children alone or in the possession of another without providing adequate support for at least six months, failed to support the children in accordance with his ability, and "executed or will execute an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided for by chapter 161 of the Texas Family Code." No such affidavit of relinquishment has been produced and Baugh challenged the termination in his answer.

In addition to filing his answer, Baugh moved to be present at the hearing and to have an attorney appointed for purposes of the proceeding. The record before us reflects that there was no hearing on these motions. Instead, a hearing on the termination was set and held without Baugh's appearance, either in person or through counsel. The order of termination issued on November 6, 2002, and stated that "Respondent, EDDIE LYNN BAUGH, JR., . . . although duly and properly notified, did not appear and wholly made default."

On appeal Eddie Lynn Baugh, Jr., raises two issues. We need only consider the second in our decision to reverse the judgment of the trial court and remand for further proceedings.

Appointment of an Attorney ad Litem is Mandatory

Appellant's second issue claims that he was denied assistance of counsel as required by Texas Family Code section 107.013. The brief of the appellee concedes that the court failed to appoint counsel, but argues that this was harmless error. We cannot agree that an error that strikes so deeply to the heart of Baugh's rights of due process can constitute harmless error.

The Family Code guarantees appointment of an attorney ad litem to indigent parents who oppose a petition to terminate their parental rights:

107.013. Mandatory Appointment of Attorney ad Litem for Parent

(a) In a suit in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of:

(1) an indigent parent of the child who responds in opposition to the termination. . . .

Tex. Fam. Code Ann. 107.013(a)(1) (Vernon 2002). The duty to provide an attorney ad litem to an indigent parent who requests representation is clear and mandatory. Odoms v. Batts, 791 S.W.2d 677, 679-80 (Tex. App.--San Antonio 1990, no writ) (discussing section 11.10(d), the predecessor to section 107.013(a)). Baugh swore on an affidavit that the extent of his wealth was limited to the $2.60 in his Inmate Trust Fund at Huntsville. He also denied the grounds for termination. This evidence establishes that he was a proper candidate to be appointed an attorney ad litem in this case. This was not done, and the termination proceeding was held without any input from the father whose rights were being terminated. This is reversible error. In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.--Corpus Christi 1998, no pet.); Odoms, 791 S.W.2d at 680.

The brief for the appellee urges this Court to find that the error was harmless, citing In re K.R., 63 S.W.3d 796 (Tex. 2001). There, Justice Hecht recognized that there are few exceptions to the harmless error rule. Id. at 799. The appellant in In re K.R. was appealing the fact that he was shackled during the jury trial on the termination of his parental rights. Id. at 797. That was found to be harmless error. Id. at 800-01. This is easily distinguishable from the current case in which Baugh was neither allowed an attorney ad litem, which he was guaranteed by statute, nor a bench warrant to be present at the hearing at which his parental rights were terminated. In the present case, the error turned the proceeding into an ex parte action allowing Baugh no defense. We believe the harm in such a circumstance is patent. We simply cannot find that denying an indigent father any type of defense to the termination of his parental rights was harmless. We sustain issue two.

Conclusion

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings.

SUSAN LARSEN, Justice

August 7, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.