In re J.O.A.

Decision Date01 May 2009
Docket NumberNo. 08-0379.,08-0379.
Citation283 S.W.3d 336
PartiesIn the Interest of J.O.A., T.J.A.M., T.J.M., and C.T.M., Children, Petitioners.
CourtTexas Supreme Court

Trevor Allen Woodruff, Duke Elton Hooten, Michael C. Shulman, Texas Department of Family and Protective Services, Austin, TX, Larry L. Canada, Regional Attorney, Amarillo, TX, for Petitioner.

John Franklin McDonough III, Attorney at Law, Pampa, TX, Todd L. Alvey, Wheeler, TX, Landon Paul Lambert, Clarendon, TX, for Respondents.

Dale A. Rabe Jr., Bird, Bird & Rabe, Childress, TX, for person interested in case.

Danica Lynn Milios, James C. Ho, Office of the Solicitor General of Texas, Amicus Curiae.

DAVID M. MEDINA, Justice.

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. Id. § 263.405(i). The issue in this parental rights termination case is whether the failure to follow these procedural rules in the Family Code precludes appellate review of an ineffective assistance of counsel claim.

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. Id. at 24-25. Only the Department perfected an appeal to this Court.

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. Id. § 263.405(d). The Family Code bars an appellate court from considering any issue not presented to the trial court in a timely filed statement of points. Id. § 263.405(i).

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 (Tex.2003). In fact, the Department generally ignores our decision in this case altogether.

In M.S., the indigent parent complained that her attorney failed to provide competent representation in violation of her due process rights. Id. at 543. Specifically, the parent argued, as in this case, that her attorney was ineffective for not following the appropriate procedure to preserve her complaint regarding the factual sufficiency of the evidence. Id. at 543-44, 546. After recognizing the indigent parent's right to competent counsel, we turned to the question of what constitutes ineffective assistance. In answering that question, we followed the two-pronged analysis of the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

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. Id. at 547. Although we recognized that a right of appeal might not be constitutionally required, once granted, the right could not be unreasonably withdrawn. Id. (quoting M.L.B. v. S.L.J., 519 U.S. 102, 111, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) ("once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts")). And, because error preservation in the trial court is the "threshold to appellate review," we concluded that it should be reviewed under the procedural due process analysis established by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In re M.S., 115 S.W.3d at 547.

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...

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