IN THE SUPREME COURT OF
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No. 08-0379
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In the Interest of J.O.A., T.J.A.M., T.J.M., and
C.T.M., Children, Petitioners
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On Petition for Review from the
Court of Appeals for the Seventh District of
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Argued October 14, 2008
Justice Medina delivered the opinion of the Court.
Justice Willett filed a concurring opinion.
The Texas Family Code requires that
a statement of points on which a party intends to appeal be presented to the
trial court within fifteen days after the signing of a final order terminating
parental rights. Tex. Fam.
Code § 263.405(b). The
Code further provides that an appellate court is to consider only those issues
presented to the trial court in a timely filed statement of points.
Here, the indigent parents did not file a statement of points, but the court of appeals nevertheless reached the merits of the parents’ ineffective assistance of counsel claim. 262 S.W.3d 7. We conclude, like the court of appeals, that an ineffective assistance of counsel claim can be raised on appeal despite the failure to include it in a statement of points. We also agree with the court of appeals that section 263.405(i) is unconstitutional as applied when it precludes a parent from raising a meritorious complaint about the insufficiency of the evidence supporting the termination order.
The court of appeals reversed the parental termination order in part, concluding that the evidence was both legally and factually insufficient to terminate the parental rights of the father in this case, and remanded the case to the trial court for further proceedings on the issue of custody. Although we disagree that the evidence was legally insufficient to support the termination of the father’s parental rights, we agree that the cause must be remanded and accordingly modify the court of appeals’ judgment to remand the cause for a new trial on the issue of the father’s parental rights.
I
This case concerns the parental rights of Timothy and Trena M. The parents have three children: T.J.A.M., born in 1996, and twins, T.J.M. and C.T.M., born in 2005.[1] At the time of the twins’ premature birth, Trena and the twins tested positive for cocaine. Trena also tested positive for barbiturates. Timothy and Trena have separated several times, including during some of the pregnancy, but reconciled before the twins’ birth.
Learning of Trena’s drug use, the Department of Family and Protective Services (“Department”) intervened, removing the twins from their parents’ custody and placing them with foster parents. The older child, T.J.A.M., was placed with her maternal grandmother where she had lived while Trena was previously incarcerated. The trial court appointed the Department temporary sole managing conservator of the children, and the Department implemented a Family Service Plan to improve Timothy’s and Trena’s parenting skills and reunify the family.
The plan, however, failed, and the case proceeded to a bench trial that resulted in the involuntary termination of the parents’ parental rights to the twins, and the appointment of the Department as managing conservator. The trial court did not terminate parental rights to the couple’s oldest child, T.J.A.M, but appointed Trena’s mother as managing conservator. The trial court’s final order was signed February 16, 2007.
Five days later, on February 21st, Trena’s trial counsel filed a notice of appeal and a motion to withdraw. Timothy’s trial counsel did the same on February 22nd. Although the trial court never ruled on the motions to withdraw, it did subsequently appoint appellate counsel for Timothy and Trena but too late for either to meet the Family Code’s fifteen-day deadline for filing a statement of points. Tex. Fam. Code § 263.405(b).
Even though they had not filed a
statement of points, the parents appealed the trial court’s termination and
custody order, challenging the sufficiency of the evidence, the ineffectiveness
of their trial counsel, and the constitutionality of section 263.405. The court
of appeals concluded that Timothy’s and Trena’s trial
counsel were both ineffective for failing to file a statement of points but
that the failure ultimately deprived only Timothy of due process. 262 S.W.3d at 19-24. The court accordingly affirmed the
termination order as to Trena, but reversed as to
Timothy, concluding that the evidence was legally and factually insufficient to
support the termination of his parental rights to the twins. The court of
appeals remanded the issue of Timothy’s custody rights to the twins for further
proceedings, affirming the remainder of the trial court’s order.
II
The Family Code provides that in
parental termination cases a statement of points, detailing what the party
intends to appeal, must be filed with the trial court within fifteen days of
the termination order.[2]
This statement may be combined with a motion for new trial. Tex. Fam. Code § 263.405(b). The trial court
must hold a hearing within thirty days of the termination order to consider any
motion for new trial or issue of indigence.
The Department complains that the court of appeals should not have reviewed the termination order in this case because neither Timothy nor Trena filed a statement of points in the trial court as the Family Code requires. Despite this alleged error, the Department prevailed in the court of appeals as to Trena; the court affirmed termination of her parental rights to the twins, and she has not filed a petition for review. Thus, the court of appeals’ judgment affirming the termination of Trena’s parental rights is final, and only Timothy’s parental rights to the twins remain at issue here.
The Department does not squarely
address the constitutional concerns raised in the court of appeals. Instead,
the Department submits that the right to appeal a termination order is a
statutory right, not a constitutional one, and that the Legislature clearly has
the power to restrict, limit, or even deny that right. The Department further
submits that the procedural requirements of the statute here are clear and
unambiguous, providing for no exceptions. The Department concedes, as it must,[3] that indigent parents are entitled to
counsel but argues that counsel need not be competent because the procedural
scheme makes no provision for incompetence. The argument ignores our holding in
In re M.S. “that the statutory right to
counsel in parental-rights termination cases embodies the right to effective
counsel.” 115 S.W.3d 534, 544 (
In M.S., the indigent parent complained
that her attorney failed to provide competent representation in violation of
her due process rights.
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
In re M.S., 115 S.W.3d. at 545. Thus, an ineffective assistance of counsel claim requires a showing of a deficient performance by counsel so serious as to deny the defendant a fair and reliable trial.
We further concluded in M.S.
that due process considerations should control our review of a rule governing
preservation of a factual sufficiency complaint in parental rights termination
cases.
Under the Eldridge analysis,
a court must “weigh three factors – the private interests at stake, the
government’s interest in the proceeding, and the risk of erroneous deprivation
of parental rights – and balance the net result against the presumption that
our procedural rule comports with constitutional due process requirements.”
We concluded that the State, the
parent, and the child shared an interest in an expeditious and final decision
but that the State’s interest in protecting the child’s welfare must begin “by
working toward preserving the familial bond, rather than severing it.”
Finally, we concluded that the
fundamental liberty interests at issue were too dear and the risk of erroneous
deprivation too significant to countenance the waiver of a parent’s appellate
rights through procedural neglect under these circumstances. Instead, we held
that “if counsel’s failure to preserve a factual sufficiency complaint is
unjustified, then counsel’s incompetency in failing
to preserve the complaint raises the risk of erroneous deprivation too high,
and our procedural rule governing factual sufficiency preservation must give
way to constitutional due process considerations.”
We cautioned in M.S.,
however, that not every failure to preserve factual sufficiency issues would
rise to the level of ineffective assistance. In re M.S.,
115 S.W.3d at 549. The presumption is that “‘counsel’s conduct falls
within the wide range of reasonable professional assistance,’ including the
possibility that counsel’s decision not to challenge factual sufficiency was
based on strategy, or even because counsel, in his professional opinion,
believed the evidence factually sufficient such that a motion for new trial was
not warranted.”
The failure of Timothy’s trial
counsel to file a statement of points on his behalf was neither strategic nor a
concession to any lack of perceived merit. His trial counsel filed a notice of
appeal, but did so simultaneously with his motion to withdraw and did nothing
further. There the matter rested until the trial court appointed appellate
counsel some days after the statement was due. Timothy was still represented by
his trial counsel when the fifteen-day deadline to file the statement of points
passed. Tex. R. Civ. P. 10. Trial
counsel’s failure to follow through with his representation until relieved of
that duty was tantamount to abandoning his client at a critical stage of the
proceeding. See Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (
Part of the problem here may be resolved by better communication between trial court and counsel. Often in these cases, there is a transition from trial to appellate counsel after rendition. Because of the accelerated appellate timetable and the critical fifteen-day deadline for the statement of points, and because trial and appellate counsel are often different people, there can be misunderstandings as to which attorney is responsible for filing a motion for new trial, a statement of points on appeal, and a notice of appeal.
Given the accelerated timetable, the
burden should logically fall on trial counsel, and in
this case necessarily so because Timothy’s appellate counsel was not appointed
until after the fifteen-day period had run. See, e.g., In
re H.R., 87 S.W.3d 691, 703 (Tex. App.—San Antonio 2002, no pet.) (concluding that practical effect of accelerated appellate
timetable is to burden trial counsel with responsibility of preserving client’s
appellate rights). As one court of appeals has noted, the fifteen-day deadline
is a trap for the unwary. In re R.J.S., 219 S.W.3d 623, 627 (Tex.
App.—Dallas 2007, pet. denied). That court of appeals has further suggested
that trial courts should alert parents to the requirements of section 263.405
at the end of the final order terminating parental rights.
III
An ineffective assistance of counsel
claim, however, requires more than merely showing that appointed counsel was
ineffective. There are two elements to the Strickland standard, and,
under the second, the defendant must show that counsel’s “deficient performance
prejudiced the defense . . . that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466
Proceedings to terminate parental
rights under the Family Code require proof by clear and convincing evidence. Tex. Fam. Code § 161.001(1). Clear and
convincing evidence is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.”
[A] court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.
In re J.F.C., 96 S.W.3d at 266.
When the factual sufficiency of the
evidence is challenged, only then is disputed or conflicting evidence under
review. As we said in J.F.C.: “If, in light of the entire record, the
disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief
or conviction, then the evidence is factually insufficient.”
The court of appeals here found the
evidence to be both legally and factually insufficient to support the trial
court’s grounds for terminating Timothy’s parental rights. Those grounds
included the trial court’s determination that Timothy had (1) knowingly placed
or knowingly allowed the children to remain in conditions or surroundings which
endanger the physical or emotional well-being of the children; and (2) engaged
in conduct or knowingly placed the children with persons who engaged in conduct
which endangers the physical or emotional well-being of the children. Tex. Fam. Code § 161.001(1)(D), (E). The court of appeals concluded that there was no
evidence to support the first ground because the twins had been removed from
Timothy at birth. 262 S.W.3d at 24. The twins had
therefore always been in “‘conditions or surroundings’ dictated by the
Department, not Timothy.”
As to the second ground, the court
concluded that while there was evidence calling Timothy’s parenting skills into
question recent improvements in Timothy’s parenting skills, life choices, and
living situation prevented a reasonable factfinder
from forming a firm belief or conviction that Timothy engaged in conduct exposing
the twins to loss or injury or to emotional or physical jeopardy. See id.
(“insufficient evidence of Timothy’s continued drug
use, subsequent incarceration, or other anti-social behavior” prevented firm
conviction of endangerment). The court noted, however, that a child need not
suffer actual injury to have been endangered and that a parent’s drug use and
its effects might establish an endangering course of conduct.
We have previously said that
endangering conduct is not limited to actions directed towards the child.
Timothy admitted to daily marijuana use before the twins were born, although he testified that he never used drugs in his older daughter’s presence. Timothy and Trena also had a history of domestic violence. Timothy’s mother testified that there had been two or three incidents of domestic violence. Trena’s drug use was the cause of many of the problems in the marriage. Timothy testified about forcing Trena to leave their home “quite a few times” because of her drug use. On the majority of these occasions, he permitted Trena to leave with their daughter although he presumably knew this was not in their daughter’s best interests.
After the removal of the children,
Timothy was allowed supervised visitation and was given a copy of his service
plan. Part of the service plan required Timothy to submit to drug tests, two of
which he missed. A few months after the twins were removed,
Timothy was incarcerated on domestic violence charges, filed by Trena in 2004, which she later recanted. Upon his release
from jail, Timothy was advised to attend parenting classes and take a drug
screening test. He did not complete the drug screen and subsequently moved to
Focusing on Timothy’s positive improvement as a parent, the court of appeals concluded that the evidence was both “legally and factually insufficient to support the predicate finding of conduct endangering the children.” 262 S.W.3d at 24. We disagree regarding the legal sufficiency of the evidence. While the recent improvements made by Timothy are significant, evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices. Viewing all the evidence in the light most favorable to the trial court’s judgment and recognizing that the factfinder, not the appellate court, is the sole arbiter of the witnesses’ credibility and demeanor, we conclude that there was some evidence of endangerment on which a reasonable factfinder could have formed a firm belief or conviction of endangerment. Tex. Fam. Code § 161.001(1)(E); In re J.F.C., 96 S.W.3d at 266.
The court of appeals’ analysis here
instead suggests a comparison of Timothy’s conduct over time, attributing
greater weight to his recent improvements and less to his past challenges.
While we do not question the court’s logic, we do reject its use here as part
of the legal sufficiency review. See In re L.M.I., 119
S.W.3d 707, 712 (
* * *
In sum, we agree that Timothy’s ineffective assistance of counsel claim raises due process concerns and that section 263.405(i) of the Family Code is unconstitutional to the extent it prevents a court from considering those claims. We do not agree with the court of appeals, however, that there was no clear and convincing evidence to support termination of Timothy’s parental rights on the ground of endangerment. But even though the court of appeals found no evidence to support this ground, it nevertheless remanded the cause to the trial court for further proceedings on the issue of custody. Because a remand is also the appropriate judgment when evidence is found to have been factually insufficient, we modify the court’s judgment to remand the cause to the trial court for a new trial on the issue of Timothy’s parental rights.
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David M. Medina
Justice
OPINION ISSUED: May 1, 2009
[1] When this case began, the parental rights to a fourth child, J.O.A., were at issue. J.O.A. is Trena’s child from a previous relationship and has lived with his maternal grandmother since the age of four. The trial court did not terminate Trena’s parental rights to J.O.A. but appointed the child’s maternal grandmother permanent managing conservator. J.O.A., who was born in 1989, is now an adult.
[2] Section 263.405(b) of the Family Code was amended in 2007, after the commencement of this parental termination proceeding. The amendment made no apparent substantive change to the statement of points requirement. The former provision, applicable here, provided:
Not later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for new trial.
Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2397 (amended 2007) (current version at Tex. Fam. Code § 263.405(b)).
[3] Texas Family Code section 107.013(a)(1) guarantees indigent persons a right to counsel in government initiated parental rights termination cases.
[4] In
re S.N., 272 S.W.3d 45, 52 (