In re K.L.

• Decision Date: 31 October 2002
• Docket Number: No. 2-01-091-CV.,2-01-091-CV.
• Citation: 91 S.W.3d 1
• Parties: In the Interest of K.L., I.L., M.L., and D.L.
• Court: Texas Court of Appeals

Page 1

91 S.W.3d 1

In the Interest of K.L., I.L., M.L., and D.L.

No. 2-01-091-CV.

Court of Appeals of Texas, Fort Worth.

October 31, 2002.

COPYRIGHT MATERIAL OMITTED

Sondrea J. King, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, and Charles M. Mallin, Tanya S. Dohoney, and James Teel, Assistant Criminal District Attorneys, Fort Worth, for Appellee.

Panel A: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

OPINION

LEE ANN DAUPHINOT, Justice.

Appellant H.L. appeals the termination of his parental rights to his four children, K.L., I.L., M.L., and D.L. In three issues, Appellant contends he had a right to effective assistance of counsel at the hearing resulting in, the termination of his parental rights; his counsel was ineffective in not objecting to inadmissible hearsay evidence; and without the inadmissible hearsay, there is no evidence to support the trial court's findings of fact and conclusions of law. Because we find no reversible error, we will affirm the trial court's judgment.

Background Facts

The Texas Department of Protective and Regulatory Services (TDPRS) sought termination of Appellant's parental rights to his four children, following an investigation into allegations that Appellant had sexually abused K.L., his oldest daughter. Appellant claimed he was financially unable to employ his own counsel and sought appointment of counsel to represent him in the termination proceedings. The trial court granted his request and appointed counsel to represent Appellant.

At the hearing on the TDPRS's petition to terminate Appellant's parental rights, five witnesses, including three Child Protective Services (CPS) caseworkers, testified about K.L.'s allegations of sexual abuse. At the conclusion of the proceedings, the trial court entered judgment terminating Appellant's parental rights to all four of his children. The trial court concluded that Appellant had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their emotional or physical well-being, engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being, and that termination was in the children's best interests.

Right to Effective Assistance of Counsel

This appeal requires the determination of two fundamental issues: does Appellant have a right to effective assistance of counsel in a termination of parental rights case; and if so, was his trial counsel ineffective by failing to object to inadmissible hearsay evidence? In contending he had a right to effective trial counsel, Appellant relies upon two recent decisions by the Waco Court of Appeals and the First District Court of Appeals in Houston, holding that the statutory right to counsel in termination cases embodies the right to effective assistance of counsel.¹ Appellant also acknowledges that five other courts of appeals have held that the constitutional right to effective assistance of counsel in criminal actions does not extend to a civil proceeding for termination of parental rights.²

This court recently confronted the issue of effective assistance of counsel in a parental rights termination case.³ In A.R.R., the appellant contended he was constitutionally entitled to effective assistance of counsel, despite contrary authority holding that the Sixth Amendment right to effective assistance of counsel afforded criminal defendants has not been extended to civil termination proceedings. We opted to follow those cases, holding that "the Sixth Amendment right to effective assistance of counsel has not yet been extended to civil actions despite being a right clearly recognized in criminal proceedings."⁴

Unlike A.R.R. and the cases we relied upon in that opinion, Appellant in this case does not premise his effective assistance of counsel claim upon the Sixth Amendment. Rather, Appellant's argument is based upon the Due Process Clause of the Fourteenth Amendment. Specifically, Appellant argues that this court should follow the Waco and Houston Courts of Appeals in holding that the statutory right to counsel embodies a due process right to effective assistance of counsel.

In B.L.D., the court relied upon United States Supreme Court authority that "[s]tate intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause."⁵ Citing procedural due process concerns and recognizing that it is appropriate in termination cases to "extend" and harmonize with criminal jurisprudence, the court held that the statutory right to counsel in a termination case includes a due process right that the representation be effective.⁶

While the Supreme Court of the United States has addressed an indigent parent's constitutional right to appointed counsel in a termination of parental rights case under the Fourteenth Amendment's Due Process Clause, the Court has never addressed the issue of effective assistance of counsel in the context of a termination case.⁷ In Lassiter, the Supreme Court held there was no constitutional right to appointed counsel for indigent parents in every parental rights termination proceeding; rather, an indigent parent's constitutional right to counsel under the Fourteenth Amendment's Due Process Clause must be made on a case by case basis.⁸ The court noted, however, that "wise public policy ... may require that, higher standards be adopted, than those minimally tolerable under the Constitution,"⁹ The court further recognized that the majority of states provide statutorily for the appointment of counsel in termination cases and stated that its, opinion in no away implied that these states' actions were anything "other than enlightened and wise."¹⁰

Texas is one such state that has adopted higher standards and granted indigent parents the right to appointed counsel in termination proceedings.¹¹ The question presented in this case is whether, once granted the right to appointed counsel, the Due Process Clause of the Fourteenth Amendment requires that appointed counsel provide effective assistance of counsel. Stated differently: May Texas, consistent with the Due Process Clause of the Fourteenth Amendment, grant indigent parents a right to appointed counsel without also granting those parents a corresponding right that appointed counsel provide effective assistance of counsel?

Historically, the United States Supreme Court has, without dispute, recognized that state intervention to terminate the relationship between a parent and child must be accomplished by procedures meeting the requisites of the Due Process Clause.¹² Most recently, in M.L.B. v. S.L.J., the Court reiterated its long-held precedent that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment"¹³ and concluded that termination proceedings are entitled to heightened protection under the Constitution.¹⁴

Due Process Standard

In Lassiter, the Court declined to extend a constitutional right to counsel in every termination proceeding.¹⁵ The Court has repeatedly recognized, however, that, although a constitutional right may not exist, once a state undertakes to grant individuals certain rights, those rights are entitled to constitutional protection.¹⁶ Thus, once a state chooses to act and grants rights to its citizens, such rights cannot be withdrawn without consideration of applicable due process norms.¹⁷ Accordingly, because termination proceedings are included within the finite class of liberty interests protected by the Fourteenth Amendment and because the State of Texas has undertaken to grant indigent parents the right to appointed counsel in termination proceedings, we conclude that the State must administer that right consistent with the Due Process Clause of the Fourteenth Amendment.¹⁸

While we do not believe Lassiter is dispositive of the due process issue raised in this case, it is instructive with regard to the due process analysis applicable to termination cases. In Lassiter, the Court made the following observations:

For all its consequence, "due process" has never been, and perhaps can never be, precisely defined. "[U]nlike some legal rules," this Court has said, due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.¹⁹

In Lassiter, both the majority and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the three factors specified in Mathews v. Eldridge: (1) the private interest at stake; (2) the governmental interest; and (3) the risk of error or injustice.²⁰ The respective Lassiter opinions disputed, however, whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty.²¹ In Santosky, the Court engaged in a straight-forward consideration of the Eldridge factors in determining whether the preponderance of the evidence standard of proof in termination proceedings satisfied due process, stating that "[u]nlike the Court's right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard."²² Because the right to effective assistance of counsel issue involved in this case is based on the right to appointed counsel, we will employ the due process analysis...