Family Code § 107.013 Requires Appointed Counsel for Indigent Parent | In re G.S.S. (2026)

In the Interest of G.S.S. and S.D.S., Children, 11-25-00352-CV, May 14, 2026.

On appeal from 326th District Court, Taylor County, Texas

Synopsis

Texas Family Code § 107.013(a)(1) requires appointment of counsel for an indigent parent who appears in opposition to a Department-filed termination suit, even if the parent is incarcerated. In In re G.S.S. and S.D.S., the Eleventh Court held that denying that statutory right was reversible error and required reversal of the father’s termination order and remand for a new trial.

Relevance to Family Law

Although this is a CPS termination case, the opinion has broader importance for Texas family litigators because it underscores how strictly appellate courts will enforce statutory procedural rights when fundamental parent-child interests are at stake. For lawyers handling SAPCRs, modifications, custody disputes arising out of divorce, and any case that intersects with Department involvement, the lesson is practical: preserve appointment-of-counsel issues early, create a clean indigency record, and treat defects affecting a parent’s ability to participate as potential automatic-reversal points rather than ordinary trial-management complaints. The case also matters in hybrid family dockets where a private custody fight can become entangled with a governmental termination or conservatorship proceeding.

Case Summary

Fact Summary

The Department of Family and Protective Services filed a suit affecting the parent-child relationship seeking termination after a violent domestic incident and ongoing concerns about substance abuse and child safety. According to the opinion, the mother reported that the father threatened and chased her with a hatchet while she was holding one of the children. The record also reflected allegations of alcoholism, mental-health instability, prior violent conduct, and unsafe conditions in the home. One child described witnessing violence and being physically handled in a harmful way by the father.

The Department’s evidence further showed that the mother was using methamphetamine, that the younger child had been left unsupervised, and that both children tested positive for methamphetamine after removal. The father was jailed and later imprisoned after adjudication on prior aggravated assault cases, and he also tested positive for methamphetamine on a hair-follicle test while incarcerated. The Department obtained temporary managing conservatorship and proceeded toward termination on endangerment and incarceration-related predicate grounds.

The father, however, was not merely absent from the case. He opposed termination, maintained at least some contact with the Department while incarcerated, completed certain available prison services, and, critically, filed a request for appointed counsel in November 2024. The trial court denied the request without a hearing. That denial became the appellate issue that controlled the outcome as to the father.

Issues Decided

The court decided the following issues:

• Whether Texas Family Code § 107.013(a)(1) required the trial court to appoint counsel for the indigent father in a Department-filed termination case.
• Whether the father’s appearance and opposition to the suit were sufficient to trigger the statutory right to appointed counsel.
• Whether the erroneous denial of appointed counsel required reversal of the termination order and remand for a new trial.
• Whether the appellate court needed to reach the father’s remaining challenges to best interest and the Department’s reasonable efforts findings after concluding that appointed counsel was wrongly denied.

Rules Applied

The court’s analysis centered on Texas Family Code § 107.013(a)(1), which provides for appointment of an attorney ad litem for an indigent parent who responds in opposition to a suit filed by a governmental entity seeking termination of the parent-child relationship. The statutory trigger is not a polished merits presentation; it is indigency plus a responsive appearance in opposition to the governmental termination suit.

The opinion also relied on the settled principle that termination of parental rights implicates interests of constitutional magnitude and is therefore governed by heightened procedural protections and the clear-and-convincing-evidence standard under Family Code § 161.001 and § 101.007. While those standards governed the termination findings generally, the dispositive point here was procedural rather than evidentiary.

For the remedy, the court cited In re M.J.M.L., 31 S.W.3d 347 (Tex. App.—San Antonio 2000, pet. denied), for the proposition that the erroneous denial of a parent’s statutory right to appointed counsel in a termination case requires reversal and remand for a new trial. The court treated the denial as reversible error without requiring the father to prove a conventional harm analysis tied to the evidentiary outcome.

Application

The Eleventh Court approached the case in two tracks. First, it acknowledged the trial court’s termination findings and recited the usual sufficiency-review framework applicable to predicate grounds and best interest. The underlying record contained substantial evidence the Department would rely on to support termination: domestic violence, substance abuse, positive drug tests, incarceration, and danger to the children. But the court did not allow the evidentiary strength of the Department’s case to overshadow the threshold procedural defect.

The legal story turned on the father’s status and conduct in the litigation. He was an indigent parent. The Department was a governmental entity pursuing termination. And he appeared in opposition to the suit. Those facts, taken together, activated § 107.013(a)(1). The trial court denied his request for counsel without a hearing, despite the statutory framework requiring appointment once the criteria were satisfied. That was the critical misstep.

From an appellate perspective, the court treated the denial of counsel as structural to the fairness of the termination proceeding. A parent facing permanent severance of the parent-child relationship cannot be expected to navigate a Department termination case unaided where the Legislature has granted a right to appointed counsel. Because the father was entitled to counsel and did not receive it, the ensuing trial could not stand. That made the father’s other appellate complaints effectively secondary; once the court determined appointed counsel was wrongly denied, the proper remedy was a new trial.

Holding

The Eleventh Court held that Texas Family Code § 107.013(a)(1) required appointment of counsel for the father because he was indigent and appeared in opposition to the Department’s termination suit. The statutory right was triggered by the nature of the proceeding and the father’s opposition to it, not by whether he was physically present outside confinement or able to litigate effectively pro se.

The court further held that the trial court’s erroneous denial of appointed counsel required reversal of the termination order as to the father and remand for a new trial. Relying on authority recognizing that denial of the statutory right to counsel in a termination case is reversible error, the court did not permit the judgment to stand based on the apparent strength of the Department’s evidence.

To the extent the father challenged best interest and reasonable efforts findings, those issues did not alter the disposition once the court found reversible error in the denial of counsel. The court therefore affirmed in part and reversed and remanded in part, with the father receiving a new trial.

Practical Application

For trial lawyers, this is a preservation case as much as it is a termination case. If you represent a parent, do not assume incarceration, incomplete paperwork, or informal participation will prevent § 107.013 from attaching. If the Department seeks termination, and your client is indigent and appears in opposition, push for a prompt ruling on appointment and insist on a record that captures indigency, opposition, and any denial. If the court denies appointment, request a hearing, obtain a written order if possible, and make the record unmistakable.

For lawyers representing the Department or children, the case is equally important. A termination judgment obtained after a defective denial of appointed counsel is exposed to reversal even where the evidence of endangerment and best interest is strong. That means the front-end work matters: verify whether the parent has requested counsel, whether an indigency determination has been made, and whether the trial court has complied with § 107.013 before trying the case to judgment.

The opinion also has practical implications outside pure termination practice. In contested custody and modification matters that run parallel to CPS litigation, counsel should watch for procedural spillover. A parent’s limited participation in one proceeding may affect strategy in another, and any governmental request that could alter or extinguish parental rights should trigger a rigorous review of statutory representation rights. Family lawyers handling divorce-related custody disputes should be especially attentive when a case bifurcates into private and Department components.

A few strategic takeaways stand out:

• Treat appointed-counsel questions as merits-adjacent issues, not administrative housekeeping.
• Build an indigency record early and update it if the client becomes incarcerated or otherwise unable to retain counsel.
• Make sure “opposition” appears clearly in the record through an answer, request, objection, appearance, or other filing.
• If counsel is denied, preserve the complaint immediately rather than waiting to challenge the issue after trial.
• For appellees, do not assume harmless-error arguments will save the judgment where § 107.013 was violated.

Checklists

Parent-Side Checklist: Securing Appointed Counsel Under § 107.013

• Confirm the case is a suit filed by a governmental entity seeking termination of the parent-child relationship.
• File a written request for appointment of counsel as early as possible.
• File a sworn statement of indigency or equivalent proof supporting inability to hire counsel.
• Ensure the parent’s opposition to termination is explicit in the record.
• Request a hearing if the trial court does not promptly appoint counsel.
• Obtain a written ruling on the request, or dictate the denial into the record.
• If the parent is incarcerated, present evidence of confinement, lack of resources, and inability to retain counsel.
• Continue objecting to proceeding to merits without appointed counsel.

Trial-Court Record Checklist: Preserving Reversible Error

• Mark and file the indigency materials.
• File an answer or other responsive pleading showing opposition to the Department’s petition.
• Make a reporter’s-record request for any hearing on counsel appointment.
• If the court denies appointment summarily, object to the lack of hearing.
• Ask the court to state the basis for denial on the record.
• Re-urge the request before trial begins.
• Object to going forward pro se in a termination trial after denial of statutory counsel.
• Include the issue in any post-judgment motion if necessary.

Department/Appellee Checklist: Avoiding a Reversal Trap

• Review the clerk’s file before trial for any request for appointed counsel.
• Verify whether the parent has claimed indigency and whether the court ruled.
• If no ruling exists, bring the issue to the court’s attention before trial.
• Avoid trying the case to judgment with unresolved § 107.013 issues.
• Ensure any waiver of counsel is express, knowing, and reflected in the record.
• Do not rely on strong evidence of endangerment or best interest to cure a counsel-appointment defect.
• Confirm that incarcerated parents received notice and a meaningful opportunity to assert their rights.

Family-Law Crossover Checklist: Cases with CPS Overlap

• Determine whether a private SAPCR, divorce, or modification matter overlaps with a Department case.
• Identify whether any pleading by the government seeks termination rather than only conservatorship relief.
• Coordinate records across cases so counsel-appointment issues are not missed.
• Advise clients that statements or non-participation in one case may affect strategy in the other.
• Monitor whether temporary orders or scheduling decisions impair the parent’s ability to participate meaningfully.
• Consider appellate posture early when statutory representation rights are in dispute.

Citation

In the Interest of G.S.S. and S.D.S., Children, No. 11-25-00352-CV, memorandum opinion (Tex. App.—Eastland May 14, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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