In Re V.v., 01-08-00345-CV

• Decision Date: 29 July 2010
• Docket Number: NO. 01-08-00345-CV,No. 2006-10410J,01-08-00345-CV,2006-10410J
• Parties: IN RE V.V., A minor child
• Court: Court of Appeals of Texas

IN RE V.V., A minor child

NO. 01-08-00345-CV
No. 2006-10410J

Court of Appeals of Texas

Date: July 29, 2010

On Appeal from the 313th District Court Harris County.

EN BANC OPINION

Jane Bland Justice

On November 7, 2006, a child was born with opiates in her system. J.V., her putative father, was in jail and not married to the mother, so the state assumed her conservatorship. Testing later confirmed that J.V. is her father. With the child

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never having left state care, the Department of Family and Protective Services ("DFPS") sought to terminate the father's parental rights, on the ground that he had placed the child in danger. The trial court agreed, and terminated the parental rights of the father to this child.

The father appealed, contending that the evidence is insufficient to support the trial court's decision, and that his trial court counsel was incompetent. A panel of our court reversed the trial court and rendered judgment in favor of the father. The panel held that the father's conduct did not support a finding that he had endangered his child. In an alternative holding, the panel also decided that trial counsel's performance was so deficient that the father was wholly deprive d of counsel, and that the father need not show that it was counsel's deficiencies, instead of the father's own conduct, that caused the trial court to terminate his parental rights.

But a parental termination case does not confer the right to parent rather, it adjudicates its forfeit in the absence of any parenting. The father here has not provided care for (nor even inquired to DFPS about) this child. He is a parent in the biological sense only. DFPS twice moved for rehearing en banc, and the panel twice revised its opinion, thus mooting the en banc request. DFPS moved for en banc consideration for the third time. Concluding that the case warranted en banc review, a majority of our court has voted to reconsider this case. See Tex. R. App.

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P. 49.7. We hold that the evidence supports the trial court's finding of endangerment. We therefore affirm the decree terminating the parent-child relationship between the father and the child. We further hold that, because the father has made no showing that the outcome of this case probably would be different save for his counsel's performance, as is his burden, the father's claim does not support reversal for ineffective assistance of counsel.

We withdraw the panel's March 25, 2010 opinion, substitute this opinion in its place, and vacate the panel's March 25, 2010 judgment.

Background

At V.V.'s birth, both she and her mother tested positive for opiates, and the mother told a caseworker that the father of the child was in jail for robbery. Four days later, on November 11, 2006, DFPS sued for the protection of the child and for conservatorship. DFPS also sought a paternity test of the child's father. If he could not or would not reunite with his child, then DFPS asked that the trial court terminate his parental rights to the child. Constables served the father with the lawsuit and citation in the Harris County Jail. The father did not appear at the adversary hearing later that day because he was incarcerated.

The trial court appointed an attorney ad litem for the father of the child until paternity was established, in January 2008, when the father appeared in court, and agreed to take a paternity test. The attorney ad litem, now acting as the father's

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appointed trial counsel, filed an answer on the father's behalf. Meanwhile, the child's mother decided to voluntarily relinquish her parental rights to the child.

The Trial

The case proceeded to a non-jury trial on April 9, 2008. The father's trial counsel informed the trial court that the father was in jail, and he asked the trial court for a bench warrant and a continuance to secure his client's attendance at the trial. The trial court denied counsel's request. DFPS then called its caseworker as a witness.

Counsel for DFPS asked the caseworker about how the child came into state care. Before the witness answered, the trial court stated that it would take judicial notice of the court's file, including "the affidavit that describes the reason the child was taken into care."¹ Counsel made no objection. Thereafter, the caseworker

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testified that DFPS placed the child with a relative's family for foster care, and that the family was meeting the child's physical and emotional needs. She explained that the father was in jail when this case began, and that constables personally had served him in November 2006. The caseworker recounted that her first contact with the father was in January 2008 when he appeared in court and agreed to a paternity test. The father made no contact with DFPS after testing confirmed that he is the father of the child. The father has not made any attempts to check on his daughter's welfare. She has never been in his care.

The caseworker testified that the father had an extensive criminal record. The DFPS offered documents proving the father's criminal record into evidence, without objection. These records show criminal convictions for: unauthorized use of a car (twice), theft from a person, driving while intoxicated (twice), evading arrest, criminal assault, and felony theft (twice). In addition, the father was charged with aggravated robbery, but the state eventually dismissed this charge due to a missing witness.

Days before the trial in this matter, the father assaulted the child's mother. The state charged him with criminal assault on a family member, and DFPS

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offered a copy of the resulting criminal charge, without objection. DFPS also offered photos, identified by the caseworker as reflecting the father's assault of the mother. The father's counsel objected to this proffer: "Judge, object, goes to the criminal side." The trial court overruled this objection.

The caseworker further testified that the father has no relatives to care for the child and that he had not bonded with the child. The child had resided with her current family for at least 14 months before the trial. This family has provided a "very stable" environment for the child and she has "very much" bonded with them. The caseworker opined that it was in the best interest of this child to remain in the care of her placement family; and it was not in the child's interest to reside with her father. Finally, the caseworker testified that the father had engaged in conduct that endangered this child, and that the father's parental rights should be terminated because the father had 10 years of repeated criminal history, and had assaulted the child's mother.

The father's trial counsel did not cross-examine the caseworker, who was the only witness at trial. The reporter's record of the trial transcript is 5 pages, plus 38 pages of exhibits evidencing the father's criminal convictions and other charged offenses.

In its termination order, the trial court found that the father had "engaged in conduct or knowingly placed the child with persons who engaged in conduct which

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endangers pursuant to § 161.001(1)(E) of the Texas Family Code." See Tex. Fam. Code. Ann. § 161.001(1)(E) (Vernon Supp. 2009) ("The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence... that the parent has... engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]"). As required, it further found that terminating the father's parental rights was in the child's best interest. See id. § 161.001(2) (Vernon Supp. 2009). The trial court also terminated the mother's parental rights in accord with her voluntary relinquishment of those rights.

Post-Trial Events

Trial counsel moved for a new trial and filed a statement of appellate points, a request for findings of fact and conclusions of law, and a notice of appeal. The trial court did not file findings or conclusions, and trial counsel never filed a notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P. 297. In his new trial motion, trial counsel contended that his "oral motion for continuance to allow [the father] to be brought over from the Harris County Jail should have been granted." In his statement of appellate points, trial counsel contended that the trial court had erred in denying the father the right to testify because he was available to do so; that the evidence is legally and factually insufficient to support the trial court's termination finding; and that a trial without the attendance of the father

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violated the father's due process rights. The trial court denied the new trial motion, appointed the father's trial counsel as his appellate counsel, and found the appeal frivolous.

Trial counsel subsequently filed the father's appellate brief in this court, in which he argued that the trial court erred in deciding that this appeal is frivolous, and he asked our court to review the complaints he asserted in the trial court in the father's motion for new trial. After reviewing the record and trial counsel's appellate brief, a panel of this court concluded that the father's appeal is not frivolous, and that the briefing was inadequate. The panel struck trial counsel's brief as inadequate, and abated this appeal with a request to the trial court that it appoint new...