In the Interest of L.C.W., a Child
411 S.W.3d 116
Tex. App.2013Background
- The Texas Department filed to terminate parental rights of T.W. (father) and M.C.J. (mother) to child L.C.W.; after a jury trial the court terminated both parents’ rights and appointed the Department as permanent managing conservator.
- Appellants filed statements of points; the trial court held section 263.405(d) frivolousness hearings and found the parents’ points frivolous; T.W. appealed the frivolousness finding to this Court; M.C.J. did not file a separate notice of appeal but filed a timely "notice of points on appeal."
- T.W. raised: limitation on use of words (waiver/estoppel) in closing, denial of continuance, and legal/factual insufficiency of best‑interest evidence. M.C.J. raised similar points and an ineffective‑assistance claim.
- The court considered preservation requirements under former Tex. Fam. Code § 263.405 (pre‑Sept. 2011 amendments) and ruled many complaints were not preserved because they were not timely raised or not presented in required post‑trial motions.
- The trial court’s frivolousness determinations were reviewed for abuse of discretion; ineffective assistance claims were evaluated under Strickland (and Cronic addressed but rejected as applicable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court limited closing argument (use of "waiver/estoppel/release") | T.W.: court improperly barred those terms, prejudicing defense | Department: issue not preserved in timely statement of points | Not considered on appeal — issue waived for failure to timely present in statement of points |
| Denial of motion for continuance | T.W. & M.C.J.: denial denied ability to complete services and prepare, prejudicing defense | Department: parents had prior notice/opportunity; delays resulted from parents’ conduct; child needs permanency | No abuse of discretion — continuances denied properly; frivolous determination upheld |
| Legal and factual sufficiency of best‑interest evidence | Appellants: evidence insufficient to support jury’s best‑interest finding; M.C.J. also challenged Section 161.001(1)(N) finding | Department: insufficiency claims not preserved by proper post‑trial motions | Not reviewed — claims not preserved (no motion for new trial or requisite post‑trial motions); frivolous finding sustained |
| Ineffective assistance of counsel (M.C.J.) | M.C.J.: counsel was passive, ceded work to co‑counsel, failed to object/preserve, harmed defense; seeks presumed prejudice under Cronic | Department: lawyer participated (openings/closings, objections, witness examination); record silent on trial strategy; Strickland governs | Denied — Cronic inapplicable; under Strickland M.C.J. failed to show deficient performance or prejudice; claim not firmly founded in record |
Key Cases Cited
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (appellate rules construed to preserve appeals where reasonably possible)
- In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (bona fide attempt to invoke appellate jurisdiction suffices)
- In re A.B., 269 S.W.3d 120 (Tex. App. — El Paso 2008) (standard of review for frivolousness finding and preservation principles)
- D.R. v. Tex. Dept. of Family & Protective Servs., 281 S.W.3d 598 (Tex. App. — El Paso 2008) (frivolousness defined as lacking arguable basis in law or fact)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
- United States v. Cronic, 466 U.S. 648 (U.S. 1984) (circumstances for presuming prejudice where counsel entirely fails to test case)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse of discretion standard explained)