This document is a petition for review filed with the Supreme Court of Texas appealing a lower court's dismissal of a father's appeal of the termination of his parental rights. The petition argues that the Texas statutory scheme granting indigent parents the right to appointed counsel in termination proceedings is unconstitutional because it only mandates counsel when the state initiates termination, not in private termination suits. This denies equal protection and due process to indigent parents like the petitioner who were not automatically appointed counsel when facing termination sought by a private party. The petition asks the Supreme Court to grant review to resolve this important constitutional issue of first impression.

1. No. 12-0542
__________________________________________________________________
IN THE
SUPREME COURT OF TEXAS
__________________________________________________________________
A.S.E.,
Petitioner,
v.
A.S.,
Respondent.
(IN THE INTEREST OF S.G.E.)
________________________________________________________________
On Appeal from Cause No. 09-11-00191-CV
Ninth District Court of Appeals
Beaumont, TX
________________________________________________________________
PETITION FOR REVIEW
________________________________________________________________
Aaron A. Martinez
State Bar No. 24068629
GODWIN RONQUILLO P.C.
1201 Elm Street, Suite 1700
Dallas, Texas 75270
Telephone: 214-939-4400
Facsimile: 214-760-7332
ATTORNEY FOR PETITIONER
A.S.E.

2. - i -
INDEX OF PARTIES & COUNSEL
[Section omitted for brevity]
TABLE OF CONTENTS
[Section omitted for brevity]
INDEX OF AUTHORITIES
[Section omitted for brevity]

3. - ii -
I. STATEMENT OF THE CASE
Nature of the underlying case:
Parental rights termination proceeding by the mother against the father under
section 161.001 of the Texas Family Code.
Trial Court:
The Honorable Tracy Gilbert, 418th Judicial District Court of Montgomery
County, Texas.
Trial Court Disposition:
The court ordered the father’s parental rights terminated.
Court of Appeals:
Ninth District Court of Appeals, Beaumont, Texas. Opinion by Gaultney, J.,
joined by McKeithen, C.J., and Kreger, J. In re S.G.E., No. 09-11-00191-CV,
2012 Tex. App. LEXIS 1832 (Tex. App.—Beaumont Mar. 8, 2012, no pet.)
(mem. op., not designated for publication).
Court of Appeals Disposition:
Appeal Dismissed.
Motion for Rehearing & Disposition:
Petitioner’s timely-filed motion for rehearing was overruled. Opinion by
Gaultney, J., joined by McKeithen, C.J., and Kreger, J. In re S.G.E., No. 09-11-
00191-CV, 2012 Tex. App. LEXIS 3944 (Tex. App.—Beaumont May 17, 2012,
pet. filed) (mem. op., not designated for publication).

4. - iii -
II. STATEMENT OF JURISDICTION
This Court has jurisdiction under section 22.001(a)(6) of the Texas Government
Code because this case presents constitutional errors likely to recur in future cases,
including one of first impression in Texas, which are of such importance to the State’s
jurisprudence that the Court of Appeals’ decision on them requires correction.
This Court also has jurisdiction under section 22.001(a)(3) of the Texas
Government Code because this case’s resolution requires a decision concerning the
construction or validity of a state statutory scheme.

5. - iv -
III. ISSUES PRESENTED FOR REVIEW
1- The Texas statutory scheme granting indigent parents the automatic right to
counsel in a proceeding to terminate their fundamental parental rights applies only if the
State seeks termination. Does this scheme provide indigent parents in private termination
suits equal protection and due process under state and federal law?
2- At no point during the proceeding did the trial court conduct any inquiry, including
an inquiry under Lassiter v. Department of Social Services, 452 U.S. 18 (1981), to
determine whether to appoint Petitioner counsel. Did the trial court err by its failure to
conduct any such inquiry? (Unbriefed)
3-The child’s mother and sole custodian sought to terminate the parental and
visitation rights of the child’s father. Does this create a conflict between the child’s and
mother’s interests such that the trial court was statutorily obligated to appoint an attorney
to represent the child’s interests? (Unbriefed)
4-The mother’s evidence of conduct and condition endangerment under the Texas
Family Code consisted of her own testimony of isolated instances of such conduct and
largely irrelevant testimony of her alleged fear of the father and his supposed bizarre
behavior. Was such evidence, along with her testimony of the father’s alleged but
justified failure to support, sufficient to terminate the father’s parental rights?
(Unbriefed)

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TO THE HONORABLE SUPREME COURT OF TEXAS:
Petitioner, A.S.E., submits this Petition for Review of the Ninth Court of Appeals’
dismissal of his appeal of the trial court’s failure to appoint him counsel and its order
terminating his parental rights. The statutory scheme granting indigent parents appointed
counsel in such proceedings violates due process and equal protection because it
mandates counsel only where the state seeks termination, thus creating a classification
that can unjustly deprive indigent parents of their fundamental rights in private
termination suits.
IV. STATEMENT OF FACTS & PROCEDURAL BACKGROUND
On August 19, 2010, Respondent, a Montgomery County resident, filed a motion
to terminate Petitioner’s parental rights. (See C.R. 301.) She alleged that Petitioner, a
Wisconsin resident, engaged in conduct endangerment, condition endangerment, and
failure to support under sections 161.001(1)(D), (E), and (F) of the Texas Family Code.
(C.R. 316–17.) The parties tried the case before the bench from March 21 to 23, 2011.
(1 R.R. 1; 2 R.R. 9.) Petitioner represented himself pro se, while Respondent hired
counsel. (1 R.R. 2).
At trial, Respondent testified of her alleged fear of Petitioner and what he might
do, of his “bizarre” behavior around her and others, and offered opinions that termination
was in their daughter’s best interests. (E.g., 2 R.R. 9, 143, 170; 3 R.R. 26, 92–95.) She
also testified that Petitioner had not paid child support in the year before she sought
termination, an allegation which Petitioner later addressed and explained. (See C.R. 20; 2
R.R. 51–55, 107–09, 134; 3 R.R. 149–51).

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On the third day, Petitioner filed a “motion for continuance” asserting he was
indigent and had a constitutional right to appointed counsel. (C.R. 657.) The court
eventually denied the motion. (See 4 R.R. 7, 41.) The parties offered closing arguments,
and the court issued its ruling, finding all three statutory grounds for termination and that
termination was in the child’s best interests, and ordering termination. (4 R.R. 41–49).
Petitioner appealed to the Ninth Court of Appeals in Beaumont, the facts of which
are summarily explained in its March 8, 2012, opinion. See In re S.G.E., No. 09-11-
00191-CV, 2012 Tex. App. LEXIS 1832, at **3–9 (Tex. App.—Beaumont Mar. 8, 2012,
no pet.) (mem. op., not designated for publication). The Court dismissed his appeal
initially. Id. at *14. The Court later overruled Petitioner’s motion for rehearing,
specifically finding among other things that “[n]o statutory right to counsel exists in a
private termination suit.” See In re S.G.E., No. 09-11-00191-CV, 2012 Tex. App. LEXIS
3944, at **2, 8–9 (Tex. App.—Beaumont May 17, 2012, pet. filed) (mem. op., not
designated for publication).
V. SUMMARY OF THE ARGUMENT
The Texas statutory scheme creating an indigent’s right to counsel in a parental
rights termination case denied Petitioner equal protection and due process under the laws
of Texas and the United States1
by classifying him, in his circumstances, as undeserving
1
As the Texas and United States Constitutions’ due process and equal protection guarantees share a
common aim and are similar in scope, this Court has consistently applied the United States Supreme
Court’s reasoning and rationale in interpreting Texas’ corresponding guarantees. E.g., Univ. of Tex. Med.
Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995); Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex.
1990); Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 559 (Tex. 1985). As such, Petitioner’s argument
will focus primarily on the opinions of the United States Supreme Court, with discussion of or citation to
Texas opinions as pertinent.

8. - 3 -
of that right. Specifically, the current statutory scheme grants the right to an indigent
parent where the state seeks termination, but not when a private party seeks to do so.
Such classification serves no compelling or substantial state interest, nor is it narrowly
tailored to serve such an interest, as it must be when the classification threatens a
person’s fundamental right to a relationship with his children. And such classification
adversely affected Petitioner’s presentation of his case to the trial court, placing him in a
worse position than if the state had sought to terminate his rights. As such, this Court
should grant review.
VI. ARGUMENT
1. This Court Should Grant Review Because this Case Presents Constitutional
Issues of First Impression Regarding Fundamental Parental Rights that Are
Likely to Recur in Future Cases.
This Petition presents critically important issues of first impression to this Court
concerning whether an indigent parent’s fundamental rights are sufficiently and properly
protected when facing a termination suit. The current statutory scheme classifies
Petitioner as undeserving of the right to counsel because a private party, not the state,
initiated the suit. In its opinion on Petitioner’s motion for rehearing, the Court of
Appeals gave no consideration to the state’s lack of a compelling or substantial interest in
this classification. See S.G.E., 2012 Tex. App. LEXIS 3944, at *2.
This issue has and will continue to come up in termination suits throughout the
state. E.g., In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied);
see also Elizabeth Mills Viney, Comment, The Right to Counsel in Parental Rights
Termination Cases: How a Clear and Consistent Legal Standard Would Better Protect

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Indigent Families, 63 SMU L. Rev. 1403, 1413 (2010) (recognizing the increasing
number of parental rights termination suits after congressional passage of the Adoption
and Safe Families Act in 1997). And the courts of appeals are already headed toward
divided opinions on the issue. Compare S.G.E., 2012 Tex. App. LEXIS 3944, at *2 and
J.C., 250 S.W.3d at 489 (implicitly approving the statutory distinction) with In re G.J.P.,
314 S.W.3d 217, 222 n.3 (Tex. App.—Texarkana 2010, pet. denied) (noting that the
statute’s “constitutional firmness is questionable”). Thus this Court should grant review
and resolve this issue now. See Tex. R. App. P. 56.1(3), (4).
2. A Parent’s Right to a Relationship with His Child Is Fundamental, Thus
Requiring a Compelling (or at Least Substantial) State Interest in a
Classification or Distinction Depriving a Certain Class of that Right.
The United States Supreme Court has repeatedly declared that the interest a parent
has in the “care, custody, and management of their child” is fundamental. E.g., Troxel v.
Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745, 753–54 & n.7
(1982); Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, (1981); Stanley v. Ill., 405 U.S.
645, 651 (1972).2
Because parental rights are fundamental, and termination works a
unique and severe deprivation of these rights, any state action3
terminating these rights
must comport with the Due Process and Equal Protection Clauses of the Texas and
United States Constitutions. See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, §§ 3,
19; M.L.B. v. S.L.J., 519 U.S. 102, 115–16, 120, 127–28 (1996). Thus, a classification
that has the effect of depriving a certain class of that right must survive heightened or
2
See also Holick v. Smith, 685 S.W.2d 18, 20–21 (Tex. 1985).
3
A termination decree by a state court is state action, state action with an effect on the losing parent like
no other. M.L.B., 519 U.S. at 117 n.8; see also Shelley v. Kraemer, 334 U.S. 1, 17–18 (1948)
(recognizing that decrees and decisions by courts constitute state action).

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strict scrutiny, meaning the classification must be backed by a substantial or compelling
state interest, and be narrowly tailored to serve that interest. See M.L.B., 519 U.S. at
115–16, 120; Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457–58 (1988); Douglas v.
Cal., 372 U.S. 353, 356–58 (1963).4
M.L.B., a case involving meaningful access to a state-created right of appeal for an
indigent parent facing the loss of her child in a private termination suit, is instructive. In
M.L.B., the Court found that Mississippi’s act of denying a free trial transcript to the
parent unconstitutionally distinguished between parents who could afford a trial transcript
for appeal and those who could not. Id. at 120–22, 126–28. This negatively affected the
latter class’s ability to be fully and meaningfully heard before the state deprived them of
their parental rights, and thus could not stand. Id.; see also Douglas, 372 U.S. at 356–58.
3. The Texas Statutory Scheme Creating a Right to Appointed Counsel for
Indigent Parents in Termination Cases Creates an Unconstitutional
Distinction Between Differently-Situated Indigent Parents.
The Texas Family Code creates a right to appointed counsel for indigent parents in
termination proceedings. See Tex. Fam. Code Ann. §§ 107.013, 107.021 (West 2012).5
This scheme originally required the trial court to appoint counsel for all indigent parents.
See § 107.013 (Vernon 1996) (repealed).6
However, in 2003, the 78th Legislature
amended the statute so that an indigent is guaranteed counsel only if the state initiates the
termination suit. See § 107.013. Now, if a private party, typically the child’s other
parent, initiates suit, the court has the discretion, rather than a mandate, to appoint a
4
See also Sullivan v. Univ. Interscholastic League, 616 S.W.2d 170, 172 (Tex. 1981).
5
See also § 161.003(b).
6
In In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003), this Court specifically noted that this former
guarantee was one of the crucial safeguards protecting against erroneous termination of parental rights.

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lawyer for the opposing indigent parent. § 107.021. There does not seem to be any
indication as to why the Legislature made this change. See Viney, supra, at 1418.
This new distinction resulted in an unconstitutional deprivation of Petitioner’s
right to a relationship with his daughter because he could not be fully and meaningfully
heard before the trial court terminated his rights. Because his ex-wife, rather than a state
agency, initiated the proceeding, Petitioner, a disabled indigent7
living almost exclusively
off of Social Security benefits (see C.R. 145, 212, 291–92), was not automatically
eligible for a court-appointed attorney to represent him in her assault on his rights as a
father. Rather, he was forced to fend for himself. And in doing so, he could not
effectively defend his rights before the trial court. There is no compelling or substantial
state interest in a distinction requiring him to fend for himself just because his ex-wife,
rather than the state, sought termination.
Other states confronting this issue have found that an interest in conserving fiscal
resources in termination proceedings, while legitimate, is not sufficiently compelling to
deny an indigent parent counsel where a party uses a state-created mechanism to
terminate parental rights. See, e.g., In re S.A.J.B., 679 N.W.2d 645, 649–50 (Iowa 2004);
In re K.L.P., 763 N.E.2d 741, 753 (Ill. 2002); In re K.A.S., 499 N.W.2d 558, 565 (N.D.
1993); In re K.L.J., 813 P.2d 276, 280 (Alaska 1991); In re D.D.F., 801 P.2d 703, 706
(Okla. 1990); In re Jay R., 197 Cal. Rptr. 672, 681 (Cal. Ct. App. 1983); see also
Lassiter, 452 U.S. at 28. It is also no answer to say that parents in a private suit are in a
different, fairer position than those who must fight “against all the resources of the State.”
7
Petitioner will address the clerk’s contest of his indigence (see C.R. 691–701, 704) in later briefing.

12. - 7 -
See, e.g., Viney, supra, at 1424–25. The state is not the only entity with a vast swath of
resources at its disposal. Private actors who can afford lawyers have the same resources,
perhaps even more so than the state. This logic also “understates the actual involvement
of the state . . . called upon to exercise its exclusive authority to terminate the legal
relationship of parent and child . . . .” See K.A.S., 499 N.W.2d at 565–66; Jay, 197 Cal.
Rptr. at 680. Indeed, as the state retains sole power to terminate the parental relationship,
a private termination suit is never truly “private,” but rather always intimately involves
the state in the deprivation of fundamental rights. See Jay, 197 Cal. Rptr. at 680; K.L.J.,
813 P.2d at 283; K.A.S., 499 N.W.2d at 566.
Petitioner’s case shows the flaws in this logic. As discussed infra (Part VI.4.D),
even when the only “resources” Respondent had were two private lawyers, the resulting
trial was not, and indeed could not have been, a full, fair, and meaningful hearing on the
merits. Petitioner was actually in a worse position than he would have been had he been
fighting the state. Had he been fighting the state, he would have received an appointed
lawyer who would have better handled pretrial matters, presented his case, and preserved
error for review.
The state’s interest in promoting child welfare by quickly resolving child custody
matters, while important, is also not compelling or substantial enough, particularly in
cases such as this where custody was not at issue, only visitation. As the Alaska Supreme
Court recognized, any such interest “may perhaps best be served by a hearing in which
both the parent and the State acting for the child are represented by counsel, without

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whom the contest of interests may become unwholesomely unequal.” K.L.J., 813 P.2d at
280.
Counsel’s presence at trial allows both sides to present their best cases, allows the
fact finder to make the most informed decision possible for the child, prevents errors
from affecting the proceeding, and reduces and streamlines appeals with properly
preserved error and aid through the appellate process. All of this would accelerate, not
delay, the determination of a child’s best interests, home placement, and visitation
schedule.
4. This Court Should Grant Review Because this Case Is Distinguishable from
In re J.C., in which the Court Denied Review, Because Petitioner Sufficiently
Preserved Error and Counsel Would Have Made a Determinative Difference.
This Court had the opportunity to address this issue five years ago in In re J.C.,
250 S.W.3d 486 (Tex. App.—Fort Worth 2008, pet. denied), but declined to do so.
While Petitioner cannot know exactly why the Court denied review, suffice it to say a
likely reason may be that the Court believed the petitioner did not properly preserve
error. See Viney, supra, at 1423–25. But in this case, Petitioner did preserve error, and
this Court should not let that issue stand in the way of recognizing and remedying a
constitutionally-infirm statutory scheme such as this one.
A. Petitioner’s assertion of a “constitutional right to an attorney,” and the
trial court’s denial of his motion making such assertion, were sufficient to
preserve error.
In order to preserve error, “a party must present to the trial court a timely request,
motion, or objection, state the specific grounds therefor, and obtain a ruling.” Wal-Mart
Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999); see also Tex. R. App. P.

14. - 9 -
33.1. Rule 33.1(a)(1)(A) expands on this, requiring the appellant to show that he “stated
the grounds for the ruling that [he] sought from the trial court with sufficient specificity
to make the trial court aware of the complaint, unless the specific grounds were apparent
from the context . . . .” Rule 33.1(a)(2) also expands the “ruling” requirement, requiring
either an express or implied ruling, or a refusal to rule coupled with an objection to such
refusal. In the context of constitutional error, this Court has not provided any special
rules or requirements, but has held broadly that “as a rule, a claim, including a
constitutional claim, must have been asserted in the trial court in order to be raised on
appeal.” Texas Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861
(Tex. 2001); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993).
Petitioner knew from the beginning that he and his daughter needed counsel. Even
before the proceeding turned into a termination proceeding, Petitioner tried but was
unable to secure a lawyer. (See C.R. 228.) Prior to trial, he also filed a “Motion for
Appointment of Amicus Attorney” for his daughter. (C.R. 338–39.) While the court set
the motion for hearing on September 20, 2010, the record does not indicate that the court
actually held the hearing or ruled on his motion. (See C.R. 340–45, 657, 685–90).
Petitioner thus proceeded to trial without an attorney. But after finding out that
Respondent hired the judge’s own lawyer,8
he filed a motion for “continuance” the on the
morning of the third day, asserting that he was indigent9
and had a “constitutional right to
an attorney.” (See C.R. 657.) He also complained of the court’s failure to rule on his
8
The fact that Respondent’s lawyer also represented Judge Gilbert in the judge’s own paternity suit could
create a reasonable question of the judge’s impartiality. See Tex. R. Civ. P. 18b(b)(1).
9
This was not the first or last time Petitioner asserted his poverty or indigence before the court. (See C.R.
301, 657, 672–75; 2 R.R. 10).

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motion for an amicus attorney.10
(Id.) However, Judge Gilbert, by cutting off Petitioner
as he asked the judge to consider the motion, refused to rule on it that morning when filed
and instead waited until after the close of evidence at the end of the day to deny it. (See 4
R.R. 7, 41.) At the later hearing for entry of the final order, Petitioner again requested
counsel and moved for appointment of an amicus attorney, and once again, Judge Gilbert
cut him off and refused to hear him. (5 R.R. 6–7).
Petitioner’s actions and Judge Gilbert’s ruling denying his motion were sufficient
to “make the trial court aware of the complaint . . .” or make the complaint’s grounds
“apparent from the context . . .” and constitute a ruling on the complaint (or a refusal to
rule and objection). See Tex. R. App. P. 33.1(a)(1)(A), (2)(A). Thus, Petitioner
sufficiently preserved error in this case. The fact that his “motion” was not the most
eloquent or exact assertion of his constitutional rights should not matter. What matters is
protecting fundamental parental rights. The United States Supreme Court, in Powell v.
Alabama, 287 U.S. 45, 69 (1932), noted that even a sophisticated layman can have
problems asserting his rights and defenses in court without counsel:
Even the intelligent and educated layman has small and sometimes no skill in the
science of law. . . . He is unfamiliar with the rules of evidence. . . . He lacks both
the skill and knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel at every step in the
proceedings against him.
B. Petitioner timely asserted the right to counsel before the trial court.
10
Note that courts have held that Petitioner may raise this issue for the first time on appeal. E.g., In re
K.M.M., 326 S.W.3d 714, 715 (Tex. App.—Amarillo 2010, no pet.).

16. - 11 -
Petitioner’s timing was also sufficient. Had the judge continued the case and
appointed counsel, counsel could have moved for recusal. He could have moved for a
directed verdict. He could have submitted an alternative charge or finding to the court.
Or he could have moved for a mistrial or new trial. In short, counsel could have taken
several actions that would have, at a minimum, definitively preserved error points for the
court of appeals, and, at best, led to a new trial with Petitioner fully represented by
counsel. As discussed in Part VI.4.D below, this would have made a determinative
difference in this case. At a minimum, Petitioner’s assertion of counsel was timely with
respect to these actions.11
C. This Court should not interpret traditional error preservation rules to avoid
correcting clear violations of equal protection or due process.
In the termination context, this Court has held that traditional error preservation
rules “necessarily must be viewed through the due process prism” and must give way
under circumstances that will lead to an unacceptably high risk of an erroneous
termination. See In re M.S., 115 S.W.3d 534, 547, 549 (Tex. 2003) (finding such
circumstances exist where inept counsel failed to preserve a parent’s valid factual
sufficiency complaint); cf. B.L.D., 113 S.W.3d 340 at 54 (foreseeing that an appellate
court may one day be forced to review an unpreserved error in order “to ensure that our
procedures comport with due process”). It is also notable that the court of appeals
addressed this issue on the merits but simultaneously disposed of other issues for alleged
11
Petitioner has found no decision by this Court addressing when a party must assert a right to counsel in
a civil case, but notes that in the criminal context, a defendant does not forfeit this right by mere failure to
assert it before trial begins. See, e.g., Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App. 1993)
(requiring a criminal defendant to expressly waive his right to counsel).

17. - 12 -
lack of error preservation. Compare S.G.E., 2012 Tex. App. LEXIS 3944, at **2–3, with
id. at **1–2 (declining to disregard error preservation procedures regarding Petitioner’s
complaint that the judge should have recused himself). In a case such as this, where
counsel would have made a determinative difference in the outcome of the trial (see infra
Part VI.4.D), this Court should give Petitioner the benefit of the doubt that he properly
preserved error, or alternatively find that this is the exact circumstance Justice
Wainwright foresaw in B.L.D. requiring the Court to overlook traditional preservation
rules.12
D. The presence of counsel would have substantially and positively affected
Petitioner’s presentation of his case to the trial court.
The presence of appointed counsel through the entire proceeding would have
made a positive and determinative difference in whether Petitioner lost his parental
rights. See Lassiter, 452 U.S. at 32–33. The case was tried before the judge, not a jury.
(2 R.R. 9.) Appointed counsel would have requested a jury trial, thus avoiding various
problems throughout the proceeding affecting Petitioner’s credibility to the judge. (See,
e.g., 2 R.R. 100–02, 3 R.R. 6-11, 90, 122–23; cf. 2 R.R. 9 (showing the judge’s refusal to
consider a motion in limine because “[t]his is a bench trial”)).
During trial, Respondent’s counsel proffered prejudicial and objectionable
testimony that was irrelevant to the three statutory grounds Respondent asserted in
support of termination. (E.g., 2 R.R. 32–33;13
3 R.R. 18–20.14
) Appointed counsel would
12
This is particularly true now that the Legislature removed the safeguard of the right to counsel in
private termination suits described in B.L.D. (and, as a result, effectively removed the safeguard of
appellate review in such suits). See 113 S.W.3d at 353.
13
Hearsay statement from an unidentified FBI agent that Petitioner “has the profile of a shooter . . . .”

18. - 13 -
have prepared a motion in limine to prevent the fact finder from hearing this testimony or
objected to it when proffered. Counsel would also have responded properly to objections
to Petitioner’s questions, rather than just accepting them at face value. (E.g., 2 R.R.
102;15
3 R.R. 72–74.16
) Counsel would have further objected to legally conclusory
testimony by unqualified witnesses. (E.g., 2 R.R. 170, 174.17
) Finally, counsel would
have seized on and emphasized evidence that Respondent sought to terminate Petitioner’s
rights for some reason other than their daughter’s best interests. (See 2 R.R. 126,18
171–
73;19
see also 3 R.R. 72–74; C.R. 642).
Respondent’s evidence of conduct and condition endangerment consisted
primarily of Respondent’s repeated yet often vague testimony that she was afraid of
Petitioner due to his allegedly bizarre behavior and threatening actions. (E.g., 2 R.R. 18–
19, 25–26, 50, 72–75, 168–69.) The record however contains scant testimony that
Petitioner actually “knowingly placed the child . . .” in situations, or engaged in conduct,
that would endanger her physical or emotional well-being (emphasis added). See §
161.001(1)(D), (E). Respondent presented only three isolated, one-sided instances of
these allegations. (See 2 R.R. 22, 25, 79–80; cf. 2 R.R. 159–61.) Counsel would have
cross-examined Respondent to show not only the scarcity of evidence supporting the
14
Hearsay statement from a Secret Service agent to a local officer asking if he knew whether Petitioner
was “in the area.”
15
Acceptance of relevance objection to Petitioner’s attempt to show Respondent never filed any sort of
police report or other complaint even after his allegedly threatening acts.
16
Acceptance of objection to Petitioner’s purported improper impeachment.
17
Conclusory testimony by a CPS worker, not tasked with making or otherwise qualified to make a
determination of the child’s best interests, that it was in her best interests that Petitioner’s rights be
terminated.
18
Evidence of a revenge motive due to Petitioner allegedly becoming an obstacle to Respondent’s efforts
to become ordained as a priest.
19
Evidence of a motive to cover up abuse by the grandfather and mother’s boyfriend.

19. - 14 -
statutory grounds for termination, but also inconsistencies in her testimony, including her
action (or inaction) in the face of her alleged fear of Petitioner. (E.g., 2 R.R. 21, 102,
115).
A key allegation against Petitioner is that he failed to provide child support the
year before Respondent filed her motion to terminate his rights. (2 R.R. 8.) However,
the divorce decree did not award Respondent child support. (C.R. 20.) Rather, it
recognized that such payments would be offset by Petitioner’s substantial expenses
travelling from Wisconsin to Texas to visit his daughter. (Id.) Respondent nevertheless
testified that Petitioner did not visit his daughter in that year prior to filing the suit,
making it seem as if Petitioner was simply pocketing the travel money. (2 R.R. 51–55; 3
R.R. 149–51; 4 R.R. 14).
There was a legitimate reason Petitioner did not make these trips, however. He
sought to avoid being arrested due to a criminal indictment Respondent sought against
him in Montgomery County for allegedly stealing a car that was arguably awarded to him
in their divorce. (See C.R. 21, 24, 31, 112; 2 R.R. 107–09.) He was not using this
property dispute gone wrong as an excuse to pocket travel expenses, a fact shown not
only by the grand jury’s refusal to indict him, but also by his payment of child support
into the court registry after the trial court ordered him to do so. (See C.R. 31, 341, 705; 2
R.R. 108–09.) Counsel would have used cross examination of Respondent, direct
examination of Petitioner, and exhibits to show all of this to the fact finder, thus taking
away the sting of the hard, literal fact of nonpayment. This would have made a
substantial difference as to the findings on this statutory element.

20. - 15 -
The evidence in this case was simply insufficient to support wholesale
termination, especially had it been put in front of a fact finder not as upset with
Petitioner’s lack of court decorum as this judge was. (E.g., 4 R.R. 5–6.) Appointed
counsel would have taken appropriate action to prevent this unconstitutional deprivation
of Petitioner’s rights. The fact that the current statutory scheme prevented Petitioner
from having this protection, as he would have if the state sought termination, is a grave
constitutional error this Court should not hesitate to remedy.
VII. CONCLUSION AND PRAYER
This case poses critically important issues to this state’s jurisprudence where a
private actor uses state action to deprive an indigent parent of his fundamental rights.
The state’s statutory scheme classified Petitioner as undeserving of the right to automatic
appointment of counsel in his fight to save his relationship with his daughter, with no
compelling or substantial interest in doing so. Thus, it denied him equal protection and
due process under the Texas and federal law.
For these reasons, Petitioner prays that this Court grant review and (1) find that
Texas’s statutory scheme denies equal protection and due process to indigent parents in
termination proceedings, (2) require appointment of counsel in all such proceedings, (3)
reverse the Court of Appeals’ judgment, (4) strike the trial court’s order terminating
Petitioner’s parental rights, and (5) grant Petitioner all other relief to which he is justly
entitled.