Texas court: failure to appoint counsel for parent was reversible error

In In the Interest of A. J., 2018 Tex. App. LEXIS 7452 (Tex. App. 2018), the court addressed trial court’s failure to notify a parent of his right to appointed counsel and failure to appoint counsel until later in the trial.  First, the court addressed the State’s argument that the parent waived the issue by not raising it at trial.  The court analogized to criminal cases where it had been held that the right to counsel has to be expressly relinquished or waived, then stated, “Because some courts have recognized that in certain contexts termination suits are quasi-criminal, we determine that the right of assistance of counsel cannot be waived.” 

The court then held that delaying appointment until a later stage of the trial was reversible error.  It acknowledged that the statute did not specify exactly when the attorney must be appointed, but that the code specifies many tasks for the attorney to do within a reasonable time.  The court then did applied the Mathews v. Eldridge test, recognized the parent’s fundamental interest and the State’s relatively weak interest (given that advising the parent of his right to counsel would not have “unduly prolonged” the case), and held that the 18 months the parent was without counsel created a high risk of erroneous deprivation. 

The court then applied the civil standard for reversible error (“the error probably caused rendition of an improper judgment”), but then again pointed to the quasi-criminal nature of termination proceedings and noted that in criminal cases the failure to appoint counsel is presumptively harmful, so it applied the same standard to the termination case.