in the Interest of M.A.B., IV, a Child
01-15-00388-CV
| Tex. App. | Oct 2, 2015Background
- Appellant M.A.B., Jr. (Father) appealed the trial court’s termination of his parental rights and conservatorship decision in a DFPS suit (trial court cause no. 2014-00044J). Appellant was represented by appointed counsel S.D.
- Father was incarcerated during much of the proceedings; he contends he never communicated with or was informed by his appointed attorney until the morning of trial. Father filed pro se motions seeking participation but claims they were ignored.
- DFPS named and served paternal grandmother Phylecia Holiday as a party; she filed affirmative pleadings but contends she was not given notice of the final trial and was effectively omitted from the final decree.
- DFPS approved a relative (Appellant’s aunt, Jacklyn Ross) as a potential placement and indicated willingness to place the child with her; Father contends this and other placement options were never properly presented to the court because of lack of counsel communication.
- Father asserts multiple statutory and constitutional violations: (1) judgment may be nonfinal as to Holiday because she wasn’t noticed for trial; (2) appointed counsel failed statutory duties (Fam. Code §107.0131 etc.) and abandoned client, depriving Father of effective assistance at critical stages; (3) DFPS failed to complete and file required placement/relative forms (Fam. Code §262.114(a-1),(a-2)); and (4) best-interest findings lack clear and convincing evidence given ineffective advocacy and unpresented relative placements.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (DFPS) | Held / Posture |
|---|---|---|---|
| Finality of decree as to a served party (Holiday) | Holiday filed affirmative pleadings and was served; she was not given notice of final trial and thus decree is not final as to her; due process violated | DFPS treats decree as final and asserts Holiday’s claims were effectively dismissed / not litigated | Appellant contends decree is interlocutory as to Holiday and due process was violated; issue is raised on appeal (trial court previously entered termination decree) |
| Ineffective assistance of appointed counsel (pre-trial communication and statutory duties) | Counsel failed to meet/communicate for over a year, never discussed jury demand or service-plan impossibility, and thus abandoned client at critical stages; harm should be presumed and reversal/remand required | DFPS argues Father’s incarceration and conduct explain shortcomings and that counsel’s acts were sufficient; appellee resists treating statutory noncompliance as presumptive harm | Appellant seeks reversal/remand; appellate briefing argues for presumption of harm where statutory duties and complete communication failure occurred; no appellate ruling in brief itself |
| DFPS statutory duties re: relative placement and forms (§262.114) | DFPS failed to send or file Child Placement Resources Form and failed to file reasons for not placing with relatives; this harmed Father’s case and placement options were not presented | DFPS maintains it fulfilled obligations and that Father bears burden to establish placements; disputes causal effect of omissions | Appellant contends DFPS statutory failures contributed to unreliable termination findings and requests remand; issue preserved for appeal |
| Best interest and sufficiency of evidence under clear-and-convincing standard | Because counsel abandoned Father and DFPS did not present or explore relative placement evidence, best-interest findings are unsupported and unreliable | DFPS contends the record supports best-interest findings and that Father’s incarceration and history justify termination | Appellant asks reversal; appellate brief argues insufficiency and unreliability of proof due to ineffective counsel and procedural defects |
Key Cases Cited
- Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615 (Tex. 2007) (final-judgment and finality principles)
- Lehman v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final judgment must dispose of all parties and claims)
- Custom-Crete, Inc. v. K-Bar Servs., 82 S.W.3d 655 (Tex. App.—San Antonio 2002) (failure to give notice of trial can implicate due process and require reversal)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (state’s interest in child welfare must begin with preserving family bonds; procedures must accurately determine parental ability)
- In re M.S., 115 S.W.3d 534 (Tex. 2003) (attorney abandonment at a critical stage can justify reversal; emphasis on accurate determination of parental fitness)
- In re V.V., 349 S.W.3d 548 (Tex. App.—Houston [1st Dist.] 2010, en banc) (discussing standards for presuming harm from ineffective appellate/ trial counsel and abatement for factfinding)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (benchmark for ineffective-assistance analysis requiring deficiency and prejudice)
- United States v. Cronic, 466 U.S. 648 (U.S. 1984) (circumstances where prejudice is presumed, e.g., constructive denial of counsel)