In re B.L.D.

• Decision Date: 03 July 2003
• Docket Number: No. 01-0882.,01-0882.
• Citation: 113 S.W.3d 340
• Parties: In the Interest of B.L.D. and B.R.D., Minor Children.
• Court: Texas Supreme Court

113 S.W.3d 340

In the Interest of B.L.D. and B.R.D., Minor Children.

No. 01-0882.

Supreme Court of Texas.

Argued February 12, 2003.

Decided July 3, 2003.

Rehearing Denied August 21, 2003.

Julie Caruthers Parsley, Office of the Solicitor General of Texas, Joseph David Hughes, Assistant Solicitor General, Greg Abbott, Attorney General of the State of Texas, Howard G. Baldwin, First Assistant Attorney General of Texas, Philip A. Lionberger, Lisa Royce Eskow, Office of the Attorney General of Texas, Austin, John W. Segrest, McLennan County Criminal District Attorney, James Wiley, Assistant Criminal District Attorney, Daniel David Semanek, Office of the Criminal District Attorney, Waco, for petitioner.

Nita C. Fanning, Law Office of Nita Fanning, Waco, L.T. "Butch" Bradt, The Teltschik Law Firm, Houston, Gerald Ray Villarrial, Waco, for respondent.

Justice WAINWRIGHT delivered the opinion of the Court.

I. Introduction

Following a jury verdict, the trial court terminated the parental rights of Jimmy and Spring Dossey to two of their children. The court of appeals reversed the trial court's judgment on two grounds, holding that (1) the Dosseys were deprived of a constitutional right to effective assistance of counsel due to their joint representation by an appointed attorney when there was a conflict of interest between them, and (2) the form of the jury charge violated the Dosseys' constitutional rights. 56 S.W.3d 203, 205. The Texas Department of Protective and Regulatory Services petitioned this Court to review both holdings.

The Texas Family Code provides that indigent parents who are defendants in the same termination lawsuit are entitled to nonconflicted counsel. Tex. Fam.Code § 107.013(b). Today we decide the standard for determining whether a conflict of interest exists between parents in a termination suit. We hold that, in deciding whether there is a conflict of interest between parents opposing termination in a single lawsuit, the trial court must determine whether there is a substantial risk that the appointed counsel's obligations to one parent would materially and adversely affect his or her obligations to the other parent. Applying this standard, we determine that the trial court did not err in finding no conflict of interest between the Dosseys. We need not address the question regarding a constitutional right to effective assistance of counsel raised sua sponte by the court of appeals. We further hold that the court of appeals erred in reviewing a jury charge complaint that was not preserved in the trial court. Accordingly, we reverse the judgment of the court of appeals and remand to that court.

II. Factual and Procedural Background

Jimmy and Spring Dossey are the married parents of two children, B.L.D. and B.R.D. In January 1995, the Texas Department of Protective and Regulatory Services investigated Spring regarding an incident in which then three-month-old B.L.D. fell off a car trunk and fractured his skull. The injury healed, and the Department concluded that the incident was an accident. In February 1998, then fifteen-month-old B.R.D. was seriously scalded in the kitchen sink when Spring was the only parent in the house. Spring told hospital personnel that the child climbed into the sink and turned on the hot water while she was asleep, but a hospital nurse thought the burns were inconsistent with Spring's explanation and reported the incident to the Department. The Department immediately removed both children from the Dosseys' custody and filed a suit affecting the parent-child relationship. See Tex. Fam.Code §§ 101.032(a); 102.003(a)(5). After a hearing, the trial court granted temporary conservatorship to the Department until the Dosseys complied with a court-ordered family reunification plan.

Within a month of their children's removal, the Dosseys retained attorney James Ray to represent them. In October 1998, following a hearing requested by Ray, the trial court determined that it was in the best interests of the children to return them to their parents pending completion of counseling and other terms of the family reunification plan. However, in February 1999, the court ordered the children removed again based on a finding of immediate danger to their health or safety. While the court order did not specify the basis of this finding, the Department's affidavit in support of removal cited allegations that Jimmy stole a gun, worked as a drug informant for the police, lied to the Department about being a drug informant, and downloaded child pornography on a home computer. The Department also alleged that both parents were failing to meet the children's physical needs.

The original statutory deadline for resolving the suit expired on March 1, 1999. See Tex. Fam.Code § 263.401(a). The court granted a 180-day extension of that deadline based on the Department's assertion that the parents needed more time to complete the family reunification plan before the children should be returned to them. See id. § 263.401(b). In May 1999, the Department changed its goal from family reunification to termination and adoption and amended its petition to seek termination of the Dosseys' parental rights. The petition alleged that termination would be in the children's best interests, and that both Jimmy and Spring had (1) knowingly placed or knowingly allowed their children to remain in conditions or surroundings that endangered the physical or emotional well-being of the children, and (2) engaged in conduct or knowingly placed their children with persons who engaged in conduct that endangered the physical or emotional well-being of the children. See id. § 161.001(1)(D), (E).

On June 18, 1999, Ray withdrew as counsel because the Dosseys could no longer afford to pay him. The Dosseys requested that the trial court appoint Ray to continue representing them. Instead, the trial court appointed attorney Gerald Villarrial to serve as the Dosseys' counsel. A month later, Jimmy Dossey tested positive for methamphetamine and marijuana use and was arrested and charged with a Class C misdemeanor for assaulting Spring in a store parking lot.

Jury selection in the termination case began on August 23, 1999, and trial began on August 24. At a pre-trial hearing on August 17, Villarrial moved to sever the cases on the ground that he could not adequately represent both clients in the same trial due to "a potential for conflict of interest" based on the evidence that he anticipated would be offered against each of them. The trial court denied the motion. At the close of evidence in the trial on the merits, Villarrial again moved to sever the cases, this time on the ground that an actual conflict of interest had developed. Specifically, Villarrial argued that "the greater weight of the evidence" admitted was probative only on grounds for terminating Jimmy's rights, and if he represented only Spring in the case, his strategy would have been to "point the finger at Jimmy Dossey" and advise the jury only to terminate his rights. The trial court denied the motion.

In the jury charge, the trial court submitted the two grounds for termination alleged against each parent disjunctively and four broad-form questions that required the jury to determine whether the parent-child relationship between each parent and each child should be terminated.¹ Neither Villarrial nor the State objected to the form of the charge. By a 10-2 vote, the jury returned a verdict terminating the parental rights of Jimmy and Spring to both children. The trial court rendered judgment in accord with the verdict.

On appeal, the Dosseys argued that the trial court erred in refusing to appoint separate counsel or to grant separate trials, and that the disjunctive instruction combined with broad-form jury questions deprived them of a right to have ten jurors agree on a specific finding supporting termination. A divided court of appeals reversed on both grounds. First, the court of appeals held that "a statutory right to counsel in a termination case includes a due-process right that the representation be effective." 56 S.W.3d at 212. The court concluded that an actual conflict of interest arose between the parents because Villarrial could not strongly advocate for one parent due to his ethical obligations to the other. See id. at 214. Next, the court of appeals reviewed the unpreserved complaint of charge error and held that the submission of grounds for termination in the disjunctive combined with the broad-form jury questions violates due process in parental rights termination cases. See id. at 218-19. The court remanded the case to the trial court for a new trial without reviewing the Dosseys' other complaints on appeal. See id. at 219. The Department petitioned this Court for review.

III. The Conflict of Interest Claim

The Department first contends that the court of appeals erred in holding there is a constitutional right to effective assistance of counsel in parental rights termination cases. We observe as a preliminary matter that the Dosseys did not assert in the court of appeals a constitutional right to effective assistance of counsel. Instead, the Dosseys argued that the trial court erred in failing to appoint separate counsel or grant separate trials because their interests conflicted.² The court of appeals sua sponte framed this issue as whether there is a due process right to effective assistance of counsel at trial in parental rights termination cases. See id. at 210-12.

A. Preservation

The essence of the Dosseys' complaint on appeal is that they were harmed by joint representation at the same trial due to a conflict of interest. We first must determine whether the Dosseys preserved this complaint.

At a pre-trial hearing and after the close of evidence, the Dosseys through their appointed counsel moved to "sever" the cases so that their attorney could represent them "one at a time." The Department does not dispute that Villarrial's...