In the Interest of A.V. & J.V., 10-00-124-CV

• Decision Date: 11 July 2001
• Docket Number: No. 10-00-124-CV,10-00-124-CV
• Citation: 57 S.W.3d 51
• Parties: (Tex.App.-Waco 2001) IN THE INTEREST OF A.V. AND J.V., CHILDREN
• Court: Texas Court of Appeals

Page 51

57 S.W.3d 51 (Tex.App.-Waco 2001)

IN THE INTEREST OF A.V. AND J.V., CHILDREN

No. 10-00-124-CV

Court of Appeals of Texas, Waco

July 11, 2001

From the 19th District Court McLennan County, Texas Trial Court # 97-2316-1

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

VANCE, Justice

From 1983 to 1993, Appellant Pablo Puig, a Cuban native who came to America in 1980, lived with Becky Vela. Pablo sold used cars and also worked as an automobile mechanic, and Becky ran a video store they owned. They have two sons: A.V. born February 5, 1986, and J.V. born March 3, 1988. J.V. has severe mental retardation with an I.Q. of about forty.

In 1993 Pablo was arrested and convicted for a federal drug offense. He was sentenced to 100 months in prison. Within months after Pablo's incarceration, Becky began failing to properly care for the children. She left them alone, unsupervised, and she sent them to school in an unhygienic condition. A referral was made to the Texas Department of Health and Regulatory Services - Children's Protective Services ("CPS") which began to monitor their living conditions. In 1994, when Pablo heard what was happening, he attempted to break out of prison to care for his sons. His attempt failed, and he was sentenced to an additional forty months. Pablo's projected release date from prison is June 2003.

In June 1997, after continual problems with Becky's lack of proper care for the children, the State filed a petition to become managing conservator of the children, and temporary orders to that effect were issued in August 1997. The children were placed in foster care. Separate Family Service Plans for Pablo and Becky were approved by the court in September 1997. On April 28, 1998, the State amended its petition and requested termination of Pablo's and Becky's parental rights.

Pablo had a separate jury trial from January 18 to 20, 2000. Speaking through a Spanish to English interpreter, he appeared by a deposition taken, shortly before trial, in the federal prison in which he was incarcerated. He testified:

Q: Okay. What is your understanding of [J.V.]'s mental retardation?

A: That's the biggest problem that I have. That's the one that hurts me the most because I know he will always need me, and if they separate him and put him away somewhere else, he'll never be the same. Are they going to put him in a hospital somewhere? He will not be taken care of as well there or with any other parents that adopt him. I don't think he will ever be the same. I don't think anybody would ever take care of him with the love that I'll give him.

. . .

Q: What other things could you do for [J.V.] once you are out in the free world?

A: I would do everything necessary to support him and take care of him like he should be taken care of, and if I have to attend and pass any course that you-all direct me to, I will be willing to do that.

The jury's verdict was to terminate, and the judge signed an order terminating Pablo's parental rights on January 26, 2000.

Becky's rights were terminated on March 7, 2000, after a hearing on January 25, 2000, in a proceeding separate from Pablo's. She did not appeal from that decision.

Pablo appeals six issues: Issues one and two are that the two statutory grounds from the Family Code on which his parental rights were terminated are retroactive laws in violation of the Texas Constitution. Issue three is that the evidence is legally and factually insufficient to support termination under one of the two grounds in the petition. Issues four and five complain about errors in the charge. Issue six complains of the contents of the judgment. We will reverse the judgment and remand for a new trial.

REVIEW OF OUR HOLDINGS IN TERMINATION CASES

Recently we have issued opinions setting forth the standards we use in reviewing involuntary termination-of-parental-rights cases. Some of our conclusions have been reached by following other courts. Some have been novel. All show our recognition that termination cases, while civil in nature, have attributes which set them apart from other civil cases. The special character of termination cases is reflected in the fact that the standard of proof, "clear and convincing evidence," is higher than that ordinarily used in civil cases, i.e., "preponderance of the evidence." This higher standard is because parents' rights to an association with their children is a Fourteenth Amendment liberty interest. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000); U.S. Const. amend. XIV, § 1. Accordingly, Fourteenth Amendment procedural due process must be followed in termination proceedings. State laws or rules of procedure are superseded by this directive. U.S. Const. art. VI ("This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . .").

Also setting termination cases apart from other civil cases is that in some respects termination cases are similar to criminal cases. For example, in both termination cases and criminal cases the standard of proof is greater than in ordinary civil cases. This similarity is not to the same extent as, but nevertheless reminds us of, juvenile-justice cases, which partake of both civil and criminal law. E.g., In the Matter of C.O.S., 988 S.W.2d 760, 763-65 (Tex. 1999) (Because juvenile justice cases are "quasi-criminal" in nature, the analysis set forth in Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), regarding when complaints must be preserved for appeal applies in juvenile cases.) Furthermore, one of our stated goals is that civil and criminal jurisprudence be "harmonized." E.g., Johnson v. State, 23 S.W.2d 1, 11 (Tex. Crim. App. 2000); In the Matter of C.M.G., 905 S.W.2d 56, 58 (Tex. App.--Austin 1995, no writ) (Section 54.03(e) of the Family Code, which is identical in substance to article 38.14 of the Code of Criminal Procedure, is interpreted pursuant to the decisions of the criminal courts.). Accordingly, we have drawn from criminal law to reach some of our conclusions.

Our recent opinions have been an attempt to uphold the constitutional principles at stake in termination cases, i.e., to ensure that the right a parent has regarding a child is protected. In so doing, we acknowledge the inherent tension between the constitutional right of parents to the care, custody, and control of their children, and the need for the protection of children, which is, from the point of view of the State and the Family Code, the most important matter in termination cases. To place the issues in Pablo's case in perspective, we first review our recent opinions.

Review of Unpreserved Sufficiency-of-the-Evidence Complaints about "Core Issues"

In In the Interest of A.P. and I.P., 42 S.W.3d 248, (Tex. App.--Waco 2001, no pet. h.), the parent raised a complaint on appeal about the sufficiency of the evidence to support termination. The complaint was not raised in the trial court. We defined the two "core issues" in termination cases as (1) whether at least one of the statutory grounds for termination in section 161.001(1) of the Family Code has occurred, and (2) whether termination is in the "best interest" of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2001). We held that procedural due process requires that we review legal and factual sufficiency complaints about "core issues" even when not preserved in the trial court, although the rules may instruct otherwise. Tex. R. Civ. P. 324(b); Tex. R. App. P. 33.1. We cited Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Holick v. Smith, 685 S.W.2d 18 (Tex. 1985), for the proposition that Fourteenth Amendment procedural due process requires "strict scrutiny" in termination cases, which precludes us from refusing to review an unpreserved complaint about insufficient evidence of a "core issue." In addition, we thought it a "logical extension" to apply the rule in criminal cases that sufficiency-of-the-evidence complaints do not require preservation.

Review of Unpreserved Charge Complaints about "Core Issues"

Following on the heels of A.P. and I.P., we issued In re J.F.C., A.B.C., and M.B.C., 57 S.W.3d 66 (Tex. App.--Waco, 2001). A blatant error in the jury charge concerning the "best interest" finding was raised on appeal, even though there had been no objection to the charge at trial. Citing A.P. and I.P., and for the same due-process reasons, we held that we would review unpreserved jury-charge errors concerning "core issues." We also performed a "Lassiter test" and reached the same conclusion.¹

The Right to Effective Assistance of Counsel; Disjunctive Questions

In In re B.L.D. and B.R.D., ___ S.W.3d ___, 2001 WL 551165 (Tex. App.--Waco, May 23, 2001), the parents were represented by a single lawyer appointed under section 107.103(a) of the Family Code. Tex. Fam. Code Ann. § 107.013(a) (Vernon Supp. 2001). Parents have a statutory right to counsel in termination cases. Because the state of the evidence allowed for the possibility that the jury might find grounds for terminating the rights of either parent and not the other, the lawyer was placed in a conflict of interest as to which parent's position to most forcefully advance. The issue then became whether the parents' statutory right to counsel included the right to effective representation, just as the Sixth Amendment right to counsel in a criminal proceeding includes the right to effective representation. U.S. Const. amend. VI. We concluded that it does, citing the procedural due process concerns we expressed in A.P. and I.P. and J.F.C., A.B.C., and M.B.C.² We also noted "our recognition that it is appropriate in termination cases to 'extend' and harmonize with criminal jurisprudence." B.L.D., ___ S.W.3d ___, 2001 WL 551165, at *6.

We also analyzed the potential conflict between Rule 292 of...