C. Mandatory Appointment of Attorney for Parent

When DFPS files a petition requesting termination or seeking conservatorship of a child, the court must appoint an attorney for the following persons:

•   An indigent parent who responds in opposition to either termination of parental rights or to the appointment of DFPS as managing conservator, Tex. Fam. Code § 107.013(a)(1);

•   A parent served by publication, Tex. Fam. Code § 107.013(a)(2);

•   An alleged father who failed to register with paternity registry and whose identity or location is unknown, Tex. Fam. Code § 107.013(a)(3); and

•   An alleged father who registered with the paternity registry but cannot be personally served. Tex. Fam. Code § 107.013(a)(4).

In a suit described by Tex. Fam. Code § 107.013(a), if a parent is not represented by an attorney at the parent's first appearance in court, the court shall inform the parent of:

•   The right to be represented by an attorney; and

•   If the parent is indigent and appears in opposition to the suit, the right to an attorney ad litem appointed by the court. Tex. Fam. Code § 107.013(a-1).

The court may appoint one attorney for both parents if they are both entitled to such an appointment and the court finds that their interests are not in conflict and there is no history or pattern of past or present family violence by one parent directed against the other parent, a spouse, or a child of the parties. Tex. Fam. Code § 107.013(b).

The court shall require a parent who claims indigence under Tex. Fam. Code § 107.013(a) to file an affidavit of indigence pursuant to Tex. R. Civ. P. 145(b) before the court may conduct a hearing to determine the parent's indigence under Tex. Fam. Code § 107.013. Tex. Fam. Code § 107.013(d).

The court may consider additional evidence at that hearing, including evidence relating to the parent's income, source of income, assets, property ownership, benefits paid in accordance with a federal, state, or local public assistance program, outstanding obligations, and necessary expenses and the number and ages of the parent's dependents. If the court determines the parent is indigent, the court shall appoint an attorney ad litem to represent the parent. Tex. Fam. Code § 107.013(d).

However, if DFPS has alleged grounds for termination of parental rights under Tex. Fam. Code § 161.003(b) based on inability to care for the child, the court must appoint an attorney when the petition is filed and without regard to opposition or indigence.

For more information on the Discretionary Appointment of Parent Attorney, see the After Removal chapter of this Bench Book.