In re Interest of D.T.
Decision Date | 13 December 2019 |
Docket Number | No. 06-19-00064-CV,06-19-00064-CV |
Citation | 593 S.W.3d 437 |
Parties | In the INTEREST OF D.T., a Child |
Court | Texas Court of Appeals |
Katherine A. Ferguson, Renshaw, Davis & Ferguson, LLP, Greenville, TX, for Appellant.
Rebecca L. Safavi, Office of General Counsel, Austin, TX, for Appellee.
Before Morriss, C.J., Burgess and Stevens, JJ.
The Texas Department of Family and Protective Services (Department) filed a petition to terminate Sally's parental rights to her child, D.T.,1 on the grounds that she had (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered his physical or emotional well-being, (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered his physical or emotional well-being, and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain D.T.'s return after he had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of his removal for abuse or neglect. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (Supp.). A Hunt County jury found that grounds for terminating Sally's parental rights existed and that termination of Sally's parental rights was in D.T.'s best interest.2
On appeal from the termination of her parental rights, Sally argues (1) that the evidence is legally and factually insufficient to support the jury's verdict and (2) that her retained counsel rendered ineffective assistance. We affirm the trial court's judgment because we find that Sally failed to preserve her first issue for appeal and that she may not complain about retained counsel's alleged ineffectiveness.
In re A.L. , 486 S.W.3d 129, 130 (Tex. App.—Texarkana 2016, no pet.) (quoting In re C.Y. , No. 02-15-00152-CV, 2015 WL 6394559, at *2 (Tex. App.—Fort Worth Oct. 22, 2015, no pet.) (mem. op.) (citing In re D.J.J. , 178 S.W.3d 424, 426–27 (Tex. App.—Fort Worth 2005, no pet.) )). In this case, Sally failed to challenge the legal sufficiency of the evidence in any of the manners specified above, or otherwise. As a result, we find that she has failed to preserve her legal sufficiency challenge for appeal. See id.
"Further, ‘[t]he Texas Rules of Civil Procedure specify that the filing of a motion for new trial is a prerequisite to present "[a] complaint of factual sufficiency of the evidence to support a jury finding." ’ " Id. ( ). "Where, as here, there is no motion for new trial raising factual sufficiency challenges to the jury's verdict, ‘[f]actual sufficiency is not preserved for appeal.’ " Id. ).
Because she failed to preserve it, Sally's first point of error regarding legal and factual sufficiency is overruled.3
In her last issue on appeal, Sally argues that her retained counsel has rendered ineffective assistance. "In Texas, there is a statutory right to counsel for indigent persons in parental-rights termination cases." In re Z.C. , No. 12-15-00279-CV, 2016 WL 1730740, at *2 (Tex. App.—Tyler Apr. 29, 2016, no pet.) (mem. op. & order) (quoting In re M.S. , 115 S.W.3d 534, 544 (Tex. 2003) (citing TEX. FAM. CODE ANN. § 107.013(a)(1) )). "The Supreme Court of Texas has held this statutory right to appointed counsel necessarily ‘embodies the right to effective counsel.’ " Id. (quoting In re B.G. , 317 S.W.3d 250, 253–54 (Tex. 2010) ). "Thus, a parent may challenge an order of termination on the ground that court-appointed counsel rendered ineffective assistance." Id. (citing M.S. , 115 S.W.3d at 544–45 ; In re J.O.A. , 283 S.W.3d 336, 341 (Tex. 2009) ).
However, "[a] parent who hires his or her own attorney in lieu of the attorney appointed by the court cannot raise an ineffective assistance of counsel challenge to [a] parental[-rights] termination order." In re C.J.G. , No. 04-19-00237-CV, 2019 WL 5580253, at *6 (Tex. App.—San Antonio Oct. 30, 2019, no pet.) (quoting In re C.J. , No. 04-14-00663-CV, 2015 WL 1089660, at *2 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem. op.) (citing In re L.G.D. , No. 06-17-00061-CV, 2017 WL 4507673, at *2 (Tex. App.—Texarkana Oct. 10, 2017, pet. denied) (mem. op.) (listing appellate courts holding same))); see Z.C. , 2016 WL 1730740, at *2 ( ); In re A.B.B. , 482 S.W.3d 135, 140–41 (Tex. App.—El Paso 2015, pet. dism'd) ( ).4
Because Sally's counsel was retained, we overruled her last point of error alleging ineffective assistance.
We affirm the trial court's judgment.
1 To protect the confidentiality of the child involved, we refer to the adults by pseudonyms and the child by initials. See Tex. R. App. P. 9.8(b)(2).
2 It was shown at trial that, when D.T. was removed after the death of his sibling while under Sally's care, D.T. had many bruises on his body and had suffered a fractured hand. The evidence also showed that Sally tested positive for drugs during the pendency of the case, missed drug tests, and did not complete her court-ordered family service plan.
3 We note that the Texas Supreme Court has held that due process demands that we review the evidence supporting findings under Grounds D and E when they are challenged on appeal—even if the appellate court finds the evidence to support one of the other statutory grounds for termination—because termination of parental rights under these grounds "may have implications for ... parental rights to other children." In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). Nevertheless, this ruling presupposes that the appellant has preserved the issues for appeal in the first instance. See id. () (emphasis added). Thus, the ruling in N.G. does not eliminated the long-established requirement of error preservation of legal and factual sufficiency issues in parental-rights termination cases decided by a jury. In re S.C. , No. 02-18-00422-CV, 2019 WL 2455612, at *4 n.2 (Tex. App.—Fort Worth June 13, 2019, pets. denied) (mem. op.)
4 Sally cites to our sister court's opinion in In re E.R.W. to support her argument that she may raise an ineffective assistance claim against her retained counsel. See In re E.R.W. , 528 S.W.3d 251, 261 (Tex. App.—Houston [14th Dist.] 2017, no pet.). E.R.W. acknowledged cases from other sister courts finding that nonindigent parents had no right to raise ineffective assistance of counsel claims on appeal, but concluded those cases were "not on point because these cases appl[ied] a prior version of" Section 107.013 of the Texas Family Code, titled "Mandatory Appointment of Attorney ad Litem for Parent." Id. at 259 ( ); see Tex. Fam. Code Ann. § 107.013. In deciding...
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