In thе Interest of J.O.A., T.J.A.M., T.J.M., and C.T.M., Children.
Court of Appeals of Texas, Amarillo.
*13 Luke Inman, Wellington, TX, for Appellants.
Dale A. Rabe, Jr., Bird, Bird & Rabe, Childress, TX, for Ad Litem
Duke Hooten, Trevor A. Woodruff, Texas Department of Family and Protective Services, Austin, TX, for Appellee.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
PATRICK A. PIRTLE, Justice.
This is an accelerated appeal of a final order rendered under subchapter E of chapter 263 of the Texas Family Code pertaining to the placement of four children. As to two children, J.O.A. and T.J.A.M.,[1] the order names a relative of the children as their managing conservator; and, as to two children, T.J.M. and C.T.M., the order involuntary terminates the parental rights of Appellants, Timothy and Trena,[2] and appoints the Texas Department of Protective and Regulatory Services as managing conservator. Appellants jointly raise ten points of error. Points of error one and two challenge the constitutionality of § 263.405(b) and (i) of the Texas Family Cоde,[3] while points of error three through ten challenge the findings of the trial court and the sufficiency of the evidence.
The Department's brief presents eight issues and the brief filed on behalf of the children by their attorney ad litem presents four issues. Although not clearly designated as such, the "issues" presented by the Department and the attorney ad litem are in actuality responses to Appellants' points. When practicable, an appellee's brief should respond to the appellant's issues or points in the order that the appellant presented those issues or points. Tex.R.App. P. 38.2(a)(2). Because both the Department and the attorney ad litem contend that the order of the trial court should be affirmed, we will treat their issues as a response to Appellants' рoints of error and will not otherwise address their issues individually.
Relying upon § 263.405(i), the Department contends that Trena and Timothy are precluded from having any of their arguments addressed because they failed to file a statement of points with the trial court within fifteen days after the entry of the final order as required by § 263.405(b). The Department further contends that constitutional complaints were waived because they were not timely and properly presented to the trial court and preserved for review. As to the non-constitutional issues, the Department and the attorney ad litem contend that the trial court's order is supported by the law and the evidence. We affirm in part and reverse and remand in part.
Procedural Background
The Department of Family and Protective Services filed suit seeking (1) determination *14 of the parentage of J.O.A.;[4] (2) terminаtion of the parental rights of Trena as to her children J.O.A., T.J.A.M., T.J.M., and C.T.M.; and (3) termination of the parental rights of Timothy as to his children T.J.A.M., T.J.M., and C.T.M. Following a two-part hearing conducted on August 16, 2006, and February 8, 2007,[5] the court signed an Order of Termination and Final Order in Suit Affecting the Parent-Child Relationship which provided:
(1) as to J.O.A., the trial court signed an order terminating the parental rights, if any, of any alleged or unknown father, did not terminate Trena's parental rights; but did find that the appointment of Trena as managing conservator would not be in the child's best interest and then appointed J.O.A.'s maternal grandmother as his managing conservator, without appointing Trena as a possessory conservator;
(2) as to T.J.A.M., the trial court did not terminate either Trena or Timothy's parental rights; however, the court did find that the appointment of either parent as managing conservator would not be in the child's best interest and then appointed the child's maternal grandmother as her managing conservator, without appointing either Trena or Timothy as a possessory conservator; and
(3) as to T.J.M. and C.T.M., the trial court terminated Trena and Timothy's parental rights and appointed the Department of Family and Protective Services as managing conservator,
The trial court's final order was signed on February 16, 2007. On February 21st, Trena's trial counsel filed her notice of appeal and also filed a motion to withdraw. On February 22nd, Timothy's trial counsel filed his notice of appeal and also filed a motion to withdraw. The trial court never ruled on the motions to withdraw; however, on March 5th, (seventeen days after the date the final order was signed), the court appointed appellate counsel to represent Trena, and on March 15th (twenty-seven days after the date the final order was signed), the same appellate counsel was appointed to represent Timothy. Neither Trena nor Timothy filed a statement of points within fifteen days after the date the final order was signed as required by § 263.405(b) or a timely motion for new trial.
Factual Background
Trena is the biological mother of J.O.A., a male child born November 10, 1989. Trena and Timothy are the biological mother and father of T.J.A.M., a female child born December 29, 1996, and T.J.M. and C.T.M., male twins born July 27, 2005.
J.O.A. has lived with his maternal grandmother since he was four years old. T.J.A.M. has primarily lived with Trena, except for a period of approximately one and half years while Trena was incarcerated. During that period, T.J.A.M. also lived with Trena's mother. T.J.M. and C.T.M. have never lived with either Trena or Timothy because they were removed from their parents and placed in foster *15 care before ever leaving the hospital after their birth.
Trena and Timothy have had many problems during their marriage, mainly due to Trena's persistent drug use. As a result, Trena and Timothy have not always lived together. During periods of their separation, T.J.A.M. would primarily stay with either Trena or Trena's mother. During their marriage, Trena was placed on probation for domestic violence committed against Timothy. When Timothy was in his teens he was incarcerated for aggravated robbery.[6] His parole was subsequently revoked based upon an incident of domestic violence committed against Trena.
For several years, Trena struggled with her use of drugs, primarily cocaine and marihuana. She would have periods of sobriety and рeriods of drug use. Timothy also struggled with the use of marihuana. Trena and Timothy have attended a substance abuse program together. Trena was using drugs in early 2005 when she learned that she was pregnant with C.T.M. and T.J.M. When the twins were born, they were premature. At that time, Trena admitted to marihuana use and tested positive by urine drug screen for cocaine and barbiturates. At trial, she admitted to going on a five hour cocaine binge on July 25, 2005, just prior to her giving birth to the twins.
This episode of involvement by the Department began when the twins were born. On August 15, 2005, prior to the twins being released from the hospital, the Department intervened on behalf of the children the subject of this suit and removed them from the custody of Trena and Timothy. The Department's immediate concern primarily centered around the twins and Trena's use of drugs. The two older children, J.O.A. and T.J.A.M., were placed with their maternal grandmother and the twins, T.J.M. and C.T.M., were placed with foster parents.
After the removal of the children, Trena was incarcerated from August 6, 2005, until December 12, 2005, for possession of cocaine. In February of 2006, she was asked to leave a women's shelter after she tested positive for cocaine. She was incarcerated from June 5, 2006, until June 16, 2006, for criminal trespass. At the August 2006 hearing, Trena testified that she last used cocaine on May 25, 2006. She then tested positive for cocaine on November 1, 2006 and January 3, 2007. During the period subsequent to the removal of the children, she also failed to maintain steady employment or a place of residence.
After the removal of the children, Timothy was allowed supervised visitation with T.J.M. and C.T.M.; howеver, he was never allowed to have possession of the twins alone. Timothy did receive a copy of his service plan on September 26, 2005. He was incarcerated from November 2005 until January 2006 on domestic violence charges that allegedly took place in 2003. Those charges were subsequently dismissed after Trena admitted to the prosecutor that she had falsely accused Timothy. In February 2006, Timothy was advised that he needed to attend parenting classes and go for a drug screen prior to February 24, 2006. He did not complete that drug screen. Timothy subsequently moved to California where he attended a substance abuse program in May 2006. He testified that he also attended parenting classes while in California. Timothy tested positive for marihuana use in July 2006. At trial, Timothy admitted to using marihuana and testified that the last time he had used *16 marihuana was on or about June 28, 2006. He missed a drug screen in October 2006. Additionally, Timothy was delinquent on his child support. After returning to Texas, Timothy had steady employment, a better car and house, had daycare available, and was attending parenting classes. He also presented evidence of three negative drug tests.
§ 263.405(b) Statement of Points
At the outset, we must address the Department's contention that the failure to timely file a statement of points, as required by § 263.405(b) of the Texas Family Code, precludes review of any of the issues raised. A party intending to appeal a final order rendered under subchapter E of chapter 263 of the Texas Family Code must file with the trial court, no later than fifteen days after the final order is signed, a statement of points on which the party intends to appeal. § 263.405(b). The statement of points may be filed separately or it may be combined with a motion for new trial. Id. An appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points. § 236.405(i).
While several of our sister courts have questioned the practical application and constitutional validity of this statute and have recommended that the Legislature reconsider the statute in light of the potentially harsh effect of its application,[7] every intermediate appellate court in this State has agreed that the clear language of the statute prohibits appellate courts from considering points not properly preserved by the timely filing of a statemеnt of points.[8]
The order being appealed in this case is a final order rendered under subchapter E of chapter 263 of the Texas Family Code; therefore, Trena and Timothy were required to file a statement of points. The failure to timely file a statement of points does not deprive the appellate court of jurisdiction over the appeal; however, it is a procedural prerequisite to the appellate court's authority to consider any issue presented. See § 263.405(i). See also In re R.C.,
Constitutional Challenge
Relying on the recent decision in In re B.S., No. 09-06-0293-CV,
The Department also contends that Trena and Timothy's constitutional claims were waived because they were not procedurally preserved by the filing of a motion for new trial. Relying upon In re B.L.D.,
However, Trena and Timothy contend that § 263.405(i) is unconstitutional, as applied to them, because they were denied their due process right to effective assistance of counsel. The Department also contends that Trena and Timothy's constitutional challenge is precluded because they failed to raise that challenge in a timely filed motion for new trial. While we note an "as applied" constitutional challenge is waived if not raised at the trial court level, see In re L.M.I.,
We further acknowledge that as an established rule of judicial practice, appellate courts should not decide constitutional questions when an issue can be resolved on non-constitutional grounds. See, e.g., In re B.L.D.,
Ineffective Assistance of Counsel
Trena and Timothy allege that their counsel failed to provide competent assistance after the termination proceedings in violation of their rights to due process of law. Specifically, they complain that their *18 respective trial counsel were ineffective because they failed to preserve a review of their complaints on appeal by neglecting to ensure that a statement of points, as required by § 263.405(b), was timely filed.
In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, indigent parents who respond in opposition to the termination are entitled to the appointment of counsel to represent their interests. See § 107.013(a)(1). This statutory right to the appointment of counsel necessarily embodies the right to effective assistance of counsel at every critical stage of the proceeding. In re M.S.,
Because Texas provides the right of an appeal from a judgment terminating parental rights, part of the process of ensuring the accuracy of judgments necessarily includes the right to effective appellate review. In re M.S.,
Because a statement of points is a procedural prerequisite for appellate review, the deadline date for filing a statement of points is a critical stage of the proceeding. Accordingly, we hold that Trena and Timothy were entitled to effective assistance of counsel through the deadline date for filing a statement of points in compliance with the requirements of § 263.405(b).
In a suit in which termination of the parent-child relationship is sought, the appropriate standard of review for effective assistance of counsel is the same standard set forth by the United States Supreme Court in Strickland v. Washington,
When a party is represented by counsel during trial and the record does not reflect trial counsel withdrew or was reрlaced by new counsel after judgment has been entered, there is a rebuttable presumption that the trial counsel continues to represent that party through the time limit for filing a motion for new trial. Cf. Smith v. State,
With respect to whether counsel's performance in a particular case is deficient, we must take into account all of the circumstances surrounding the case and must primarily focus on whether counsel performed in a "reasonably effective" manner; that is, whether the errors made by counsel were so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. In re M.S.,
The filing of a statement of points is a straightforward procedure. That a statement of points is required for appellate review of a final order rendered under subchapter E of chapter 263 of the Texas Family Code is something that any competent trial counsel practicing in this area of the law should know. Under the facts of this case, we find that Trena and Timothy's trial counsels' failure to ensure that statements of points were timely filed amounted to ineffective assistance, satisfying the first prong of the Strickland standard. However, our inquiry does not end there.
Having determined that Trena and Timothy's counsels' failure to file statements of points was deficient, we must now address the second Strickland prong and determine whether the deficient performance prejudiced the complaining party. In this case, Trena and Timothy both contend they have been prejudiced by their respective counsel's failure to file a statement of points because by failing to do so they have been deprived of the right to show harm pertaining to the merits of their appeal. In essence, Trena and Timothy complain that because they have been deprived of their right to present a meritorious point of appeal, they have been harmed. To the extent that their issue is meritorious, we find that there is a reasonable probability that but for counsel's unprofessional error, the result of the proceeding would be different. Accordingly, we find that Trena and Timothy's respective trial counsel provided ineffective assistance of counsel by failing to file a timely statement of points.
Due Process Claims
Recognizing that their legal and factual sufficiency claims are procedurally barred by this failure to file a statement of points, Trena and Timothy contend that § 263.405(b) and (i) violate their federal and State due process rights. Specifically, in their first and second points, Trena and Timothy contend their due process rights, as guaranteed by the United States and Texas Constitutions, have been violated because their trial counsel failed to timely file a statement of points, thereby depriving them of their due process rights to effective assistаnce of counsel.
Because Trena and Timothy's due process claims cannot be disposed of by non-constitutional *20 means, we will proceed to consider their legal and factual sufficiency claims in conjunction with their contention that their federal and State due process rights to effective assistance of counsel was violated by counsels' failure to file timely statements of points.
The Texas Supreme Court has held that in cases where counsel was ineffective in preservation of jury charge error, due process considerations did not require our procedural rules to be set aside. See In re B.L.D.,
Eldridge Factors
Parental termination proceedings implicate fundamental liberties and such proceedings must comply with the requirements of procedural due process. Santosky v. Kramer,
Concerning the first Eldridge factor, the private interests at stake, the Supreme Court has acknowledged that the right of a parent to maintain custody of and raise his or her child "is an interest far more precious than any property right." Santosky,
The governmental interest in parental rights termination cases is to protect the best interest of the child. In re B.L.D.,
Perhaps the most critical Eldridge factor is the third factor, the risk of an erroneous deprivation of parental rights. The "pivotal" fact in the analysis is that termination of parental rights is "traumatic, permanent, and irrevocable." Id. Termination divests for all time that natural right as well as all other legal rights, privileges, duties, and powers existing between a parent and a child. Holick v. Smith,
We do not hold that every failure to preserve error through the failure to file a statement of points rises to the level of a due process violation. Our ruling is specifically limited to that situation where trial counsel has failed to timely file a statement of points raising a meritorious issue *22 concerning legal or factual sufficiency of the evidence. Accordingly, in the context of a valid issue on appeal concerning the due process considerations of effective assistance of counsel in preserving a legal or factual sufficiency claim through the filing of a statement of points, we will proceed to review Trena and Timothy's legal and factual sufficiency points to determine if the Eldridge factors weigh in favor of a consideration of those points notwithstanding the absence of a timely filed statement of points.
We are mindful of the gut-wrenching environment within which parental termination cases are decided, and we are sensitive to the subjectivity and lack of certainty that can be obtained in even the best litigated parental-termination cases; however, in cases such as the case at bar, where the Department seeks termination of both parents' rights to multiple children based primarily upon acts of one parent directed towards less than the whole number of children, we cannot be swept away with an emotional determination of the best interests of the children at the expense of factually sufficient grounds for termination as to each parent, as to each child. In other words, although contextually connected, the grounds for termination must independently exist as to each parent, as to each child. Therefore, in our review of Trena and Timothy's legal and factual sufficiency points, we choose to address Trena's points separately from Timothy's, and we choose to address each child independently.
Standard of Review in Termination Cases
In proceedings to terminate the parent-child relationship, the petitioner must establish one or more acts or omissions enumerated by statute and must additionally prove that termination of the parent-child relationship is in the best interest of the child. § 161.001. Both elements must be established and proof of one element does not relieve the petitioner of the burdеn of proving the other. See Holley v. Adams,
In a legal sufficiency review of the evidence to support an order terminating parental rights, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. § 101.007 (Vernon 2002), In re J.F.C.,
The standard for reviewing the factual sufficiency of termination findings is whether the evidence is such that a reasonable factfinder could form a firm belief or conviction about the truth of the Department's allegations. In re C.H.,
Trena's Claims as to J.O.A. & T.J.A.M.
Where termination of parental rights is not involved, the balancing of the Eldridge factors does not warrant a due process review of Trena's ineffective assistance of counsel claims. Because the order being appealed does not terminate Trena's parental rights as to J.O.A. or T.J.A.M., we find that a review of the court's order, as it pertains to either J.O.A. or T.J.A.M., was not preserved for appeal because Trena failed to file a timely statement of points as required by § 263.405(b). Consequently, point of error three is overruled as to Trena.
Trena's Claims as to T.J.M. & C.T.M.
As to the twins, T.J.M. and C.T.M., the record reflects that Trena went on a five hour cocaine and alcohol binge on July 25, 2005, just hours before they were born. The record further reflects that Trena had a long history of drug and alcohol abuse. Because T.J.M. and C.T.M. both tested positive for cоntrolled substances at the time of their birth, we find that the risk of an erroneous deprivation of Trena's parental rights is slight from a sufficiency of the evidence perspective. Therefore, upon balancing the Eldridge factors, we further find that Trena's ineffective assistance of counsel claims do not raise a constitutional due process claim. Accordingly, we find that a review of the court's order, as it pertains to T.J.M. and C.T.M., was not preserved for appeal because Trena failed to file a timely statement of points as required by § 263.405(b). Points of error one, two, six, seven, nine, and ten are overruled as to Trena.
Timothy's Claims as to T.J.A.M.
Where termination of parental rights is not involved, the balancing of the Eldridge factors does not warrant a due process review of Timothy's ineffective assistanсe of counsel claims. Because the order being appealed does not terminate Timothy's parental rights as to T.J.A.M., we find that a review of the court's order, as it pertains to T.J.A.M., was not preserved for appeal because Timothy failed to file a timely statement of points as required by § 263.405(b). Consequently, point of error three is overruled as to Timothy.
Timothy's Claims as to T.J.M. & C.T.M.
The Department alleged, and the court found, that termination of Timothy's parental rights as to T.J.M. and C.T.M. was appropriate under two separate grounds: (1) knowingly placed or knowingly allowed the children to remain in conditions *24 or surroundings which endanger the physical or emotional well-being of the children;[10] and (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.[11]
T.J.M. and C.T.M. were removed from Timothy at birth. At all times relevant to their lives, T.J.M. and C.T.M. were in "conditions or surroundings" dictated by the Department, not Timothy. Therefore, there is no evidence that Timothy knowingly placed or knowingly allowed T.J.M. or C.T.M. to remain in conditions or surroundings which endangered the physical or emotional well-being of the children.
To "endanger" the physical or emotional well-being of a child means "more than a threat of metaphysical injury or the possible effects of a less-than-ideal family environment." Tex. Dep't. of Human Services v. Boyd,
While there was evidence calling into question Timothy's parenting skills, Timothy's parenting abilities significantly improved following the Department's involvement in the lives of his children. Evidence supported Timothy's efforts to clean up his life. Timothy demonstrated a willingness to continue counseling and he established a support system through his church and his family. He secured suitable housing and employment. He exercised regular visitation, attended parenting classes, and demonstrated a pattern of being drug-free. While Timothy was hardly the ideal father, based upon this record, we cannot say that a reasonable and rational factfinder could have formed a firm belief or conviction that Timothy engaged in conduct which exposed T.J.M. or C.T.M. to lоss or injury and jeopardized the children's emotional and physical well-being because there is insufficient evidence of Timothy's continued drug use, subsequent incarceration, or other anti-social behavior. Therefore, we find that the evidence is legally and factually insufficient to support the predicate finding of conduct endangering the children. Having found insufficient evidence of conduct endangering the children, we need not address the second predicate, the best interest of the children. Accordingly, we find that the termination of Timothy's parental rights as to T.J.M. and C.T.M. is not supported by the evidence.
Having found that the risk of an erroneous deprivation of Timothy's parental rights as to T.J.M. and C.T.M. is high from a sufficiency of the evidence perspective, upon balancing the Eldridge factоrs, we further find that Timothy's ineffective assistance of counsel claims do raise a constitutional due process claim. To the extent that § 263.405(i) prevents this Court from considering those claims, we find it to be unconstitutional as applied to the facts of this case. In re S.K.A.,
Conclusion
Accordingly, we affirm that portion of the trial court's order terminating the parental *25 rights, if any, of any alleged or unknown father as to J.O.A.; affirm that portion of the order appointing the maternal grandmother as J.O.A.'s managing conservator; affirm that portion of the order appointing the maternal grandmother as T.J.A.M.'s managing conservator; affirm that portion of the order terminating the parental rights of Trena to the twins, T.J.M. аnd C.T.M.; and reverse that portion of the trial court's order terminating the parental rights of Timothy to the twins, T.J.M. and C.T.M., and remand this cause to the trial court for further proceedings consistent with this opinion. In reaching this decision, the Court makes no judgment whatsoever as to whether it is in the best interest of T.J.M. and C.T.M. to be physically placed with Timothy. The decision to allow T.J.M. and C.T.M. to live with Timothy can, and should, only be made by the trial court based upon the best interest of T.J.M. and C.T.M. after a review of the facts and circumstances as they exist at the time of that review.
NOTES
Notes
[1] To protect the parents' and children's privacy, we refer to the parents by their first names and the children by their initials. See Tex. Fam.Code Ann. § 109.002(d) (Vernon 2002).
[2] The trial court's order reflects Trena as Treena; however, throughout the record she is referred to as Trena. Thus, we refer tо her as Trena.
[3] Unless otherwise indicated, this and all future references to sections refer to the Texas Family Code Annotated (Vernon 2002 & Supp.2007).
[4] It is undisputed that Timothy is not J.O.A.'s natural father.
[5] Although this proceeding was subject to dismissal on August 22, 2006, pursuant to § 263.401(a), at the conclusion of the hearing on August 16, 2006, without making a final ruling, the trial court announced that it was taking the matter under advisement. On August 18, 2006, the trial court granted an extension, pursuant to § 263.401(b), set a new final hearing date of February 8, 2007, and a new dismissal date of February 17, 2007.
[6] Timothy was 33 years of age when the final order was entered.
[7] In re R.M.R.,
[8] [1st] Pool v. Tex. Dep't. of Family & Protective Services,
[9] Mathews v. Eldridge,
[10] § 161.001(1)(D).
[11] § 161.001(1)(E).