In re M.S.

• Decision Date: 03 July 2003
• Docket Number: No. 02-0509.,02-0509.
• Citation: 115 S.W.3d 534
• Parties: In the Interest of M.S., E.S., D.S., S.S., and N.S., Minor Children.
• Court: Texas Supreme Court

115 S.W.3d 534

In the Interest of M.S., E.S., D.S., S.S., and N.S., Minor Children.

No. 02-0509.

Supreme Court of Texas.

Argued February 12, 2003.

Decided July 3, 2003.

Rehearing Denied October 17, 2003.

Michael D. Papania, Law Firm of James A. Delee, Port Arthur, Jess Williams, Beaumont, for Petitioner.

Duke Elton Hooten, Austin, Randi A. Monzingo King, Beaumont, C. Ed Davis, Phoebe Ellis Knauer, Austin, Sarah Regina Guidry, Houston, and Cathy Ann Morris, Austin, for Respondent.

Justice ENOCH delivered the opinion of the Court.

This is a parental rights termination case. Shana Strickland had five sons. In December 2000, following a jury trial, her parental rights were terminated. The jury considered five grounds for termination: endangerment by conditions or surroundings;¹ conduct endangerment;² constructive abandonment;³ failure to comply with a court order;⁴ and failure to submit to a court order.⁵ The jury was also asked to consider the best interest of the children.⁶ The jury found at least one ground supported termination, and that termination was in the best interest of the children. The trial court rendered judgment on the verdict.

Having lost also in the court of appeals, Strickland appeals to this Court, raising four issues. First, she complains that the trial judge erred in admitting into evidence previously rendered orders in which he found certain facts to exist. Strickland asserts that this conduct amounts to impermissible testimony by the trial judge in violation of Texas Rule of Evidence 605. Second, Strickland complains that the trial judge erred in admitting into evidence a Memorandum of Agreement, signed after court-ordered mediation, because that too amounted to impermissible testimony by the trial judge in violation of Rule 605. As well, Strickland complains that the Agreement constitutes inadmissible hearsay under Texas Rule of Evidence 802, and its admission violates alternative dispute resolution procedures mandating confidentiality under Texas Civil Practice and Remedies Code section 154.073 (the "ADR statute"). Third, Strickland complains that the court of appeals erred in refusing to consider her factual sufficiency complaint, though the complaint was not preserved in the trial court. And finally, Strickland insists that because she has a statutory right to legal counsel in her termination proceedings,⁷ she also has a right to effective assistance of counsel. Thus, she complains about her trial counsel's failure to ensure that voir dire, the charge conference, and closing arguments were recorded, his failure to preserve her factual sufficiency complaint, and his failure to file alternative pleadings allowing for the possibility of a less drastic outcome than outright termination. Those failures, she asserts, amounted to ineffective assistance of counsel, entitling her to a new trial.

We conclude that admitting the orders without redacting the judge's fact-findings was error, but we also conclude that the error was harmless and did not result in the rendition of an improper judgment. Further, we hold that admitting the Memorandum of Agreement did not violate either Rule 605 or Rule 802, or the confidentiality provision of the ADR statute. Regarding Strickland's factual sufficiency complaint, and because the complaint was not preserved for review as otherwise required by our rules of procedure,⁸ we consider this issue in conjunction with her complaint that her appointed counsel was ineffective. On that point, we hold that Strickland was entitled to effective assistance of counsel. Specifically, we hold that counsel's failure to ensure that the entire proceedings were recorded by the court reporter did not amount to ineffective assistance. But counsel's failure to preserve Strickland's factual sufficiency complaint could, under some circumstances, constitute ineffective assistance. Consequently, we remand that portion of the case to the court of appeals to determine whether Strickland was harmed by her counsel's failure to preserve that error.

I. Evidentiary Points

A. Admitting Orders Containing Fact Findings

On June 24, 1999, the trial court issued a Temporary Order Following Adversary Hearing.⁹ That order included these findings:

3.1 The Court finds there is sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) there was a danger to the physical health or safety of the child(ren) which was caused by an act or failure to act of the person entitled to possession and for the child(ren) to remain in the home is contrary to the welfare of the child(ren); (2) the urgent need for protection required the immediate removal of the child(ren) and makes efforts to eliminate or prevent the child(ren)'s removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the child(ren)'s removal and enable the child(ren) to return home, there is a substantial risk of a continuing danger if the child(ren) [is/are] returned home.

3.2 The Court finds sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing danger to the physical health or safety of the child(ren) and for the child(ren) to remain in the home is contrary to the welfare of the child(ren).

3.3 The Court finds that all reasonable efforts consistent with time and circumstances and pursuant to 42 U.S.C. Sections 671(a)(15) and 672(a)(1) have been made by the [Texas Department of Protective and Regulatory Services] to prevent or eliminate the need for removal of the child(ren) from the home and to make it possible for the child(ren) to return home, but it is not in the child(ren)'s best interest to remain at home.

3.4 The Court finds that the placement of the child(ren) with the child(ren)'s noncustodial parent or with a relative of the child(ren) is inappropriate and not in the best interest of the child(ren).

3.6 [sic] The Court finds that the following orders for the safety and welfare of the child(ren) are in the best interest of the child(ren).

On April 6, 2000, the trial court issued an order based on a permanency hearing.¹⁰ In that order, the trial court concluded:

2.6 The Court finds that neither the child(ren)'s parent(s) nor any other person or entity entitled to service under Chapter 102, Tex. Fam.Code, is willing and able to provide the child(ren) with a safe environment and; therefore, return of the child(ren) to a parent or other person or entity is not in the child(ren)'s best interest....

During the subsequent termination proceeding, the Texas Department of Protective and Regulatory Services (the "Department") offered both orders into evidence over Strickland's objection. The trial judge overruled the objection and admitted the orders, along with the service plans submitted by the Department at those earlier hearings. The Department relied on the orders and service plans to show what Strickland had been ordered to do to retain custody of her children, and that she had not complied.

The judge presiding at the termination proceeding was the same judge that presided over the earlier hearings and signed the orders admitted into evidence in the termination hearing. Strickland complains that admitting the orders violated Texas Rule of Evidence 605, which states that "[t]he judge presiding at the trial may not testify in that trial as a witness."¹¹ Though Strickland's counsel objected to the admission of the orders, apparently on best evidence grounds, he did not specifically object under Rule 605. But Rule 605 states: "No objection need be made in order to preserve the point."¹²

A judge's findings of fact are not technically the same as testimony. A "finding of fact" is "[a] determination by a judge ... of a fact supported by the evidence in the record."¹³ In this case, the orders submitted into evidence, containing findings based on pretrial evidence by the very judge presiding over the termination proceeding, could be, like a judicial comment on the weight of the evidence, a form of judicial influence no less proscribed than judicial testimony. "[O]ur statutes, court-made rules, and judicial decisions emphatically and repeatedly prohibit Texas judges from commenting on the weight of the evidence."¹⁴ A comment on the weight of the evidence may take many forms,¹⁵ but this Court specifically prohibits judicial comments that "indicate the opinion of the trial judge as to the verity or accuracy of the facts in inquiry."¹⁶ Here, the jury was permitted to see findings of fact made by the very judge presiding over the trial, and those facts were the very ones that the jury itself was being asked to find. The fact-finding present in the orders admitted as evidence comes far too close to "indicat[ing] the opinion of the trial judge as to the verity or accuracy of the facts in inquiry"¹⁷ for any comfort here.

To be clear, admitting the orders as evidence in support of the Department's position that Strickland failed to comply with the orders of a court was not in itself inappropriate. However, the trial judge's factual findings that his order had, in fact, been violated, should have been redacted, so that the jury could draw its own conclusions as to whether Strickland had complied.

Strickland did not object to the admission of the orders into evidence on this basis, but only on "best evidence" grounds. But even had Strickland properly objected and preserved the error, the error was not harmful and thus would not be reversible error.¹⁸ In cases where the error complained of involves an evidentiary ruling, the reviewing court examines the whole record to determine if the complaining party was harmed by the erroneous admission or exclusion.¹⁹ It was Strickland's burden to show that she was prejudiced by the admitted orders.²⁰ First, Strickland fails to point out how she was harmed by the admission of the judge's findings. Second, there is nothing in the record showing that the Department specifically based any...