in the Interest of J.O.A., T.J.A.M., T.J.M., and C.T.M., Children

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 08-0379

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In the Interest of J.O.A.,

T.J.A.M., T.J.M., and

C.T.M., Children,

Petitioners

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Seventh District of

Texas

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Argued October 14,

2008

Justice Medina delivered

the opinion of the Court.

Justice Willett filed a

concurring opinion.

The Texas Family Code requires that a statement of points on which a

party intends to appeal be presented to the trial court within fifteen days

after the signing of a final order terminating parental rights. Tex. Fam. Code § 263.405(b). The Code

further provides that an appellate court is to consider only those issues

presented to the trial court in a timely filed statement of points. Id . §

263.405( i ). The issue in this parental rights

termination case is whether the failure to follow these procedural rules in the

Family Code precludes appellate review of an ineffective assistance of counsel

claim.

Here, the indigent parents did not file a statement of points, but the

court of appeals nevertheless reached the merits of the parents’ ineffective

assistance of counsel claim. 262 S.W.3d 7 . We conclude,

like the court of appeals, that an ineffective assistance of counsel claim can

be raised on appeal despite the failure to include it in a statement of points.

We also agree with the court of appeals that section 263.405( i ) is unconstitutional as applied when it precludes a parent

from raising a meritorious complaint about the insufficiency of the evidence

supporting the termination order.

The court of appeals reversed the parental termination order in part,

concluding that the evidence was both legally and factually insufficient to

terminate the parental rights of the father in this case, and remanded the case

to the trial court for further proceedings on the issue of custody. Although we

disagree that the evidence was legally insufficient to support the termination

of the father’s parental rights, we agree that the cause must be remanded and

accordingly modify the court of appeals’ judgment to remand the cause for a new

trial on the issue of the father’s parental rights.

I

This case concerns the parental rights of Timothy and Trena M. The parents have three children: T.J.A.M., born in

1996, and twins, T.J.M. and C.T.M., born in 2005. [1] At the time of the twins’ premature

birth, Trena and the twins tested positive for

cocaine. Trena also tested positive for barbiturates.

Timothy and Trena have separated several times,

including during some of the pregnancy, but reconciled before the twins’

birth.

Learning of Trena’s drug use, the Department of

Family and Protective Services (“Department”) intervened, removing the twins

from their parents’ custody and placing them with foster parents. The older

child, T.J.A.M., was placed with her maternal grandmother where she had lived

while Trena was previously incarcerated. The trial

court appointed the Department temporary sole managing conservator of the

children, and the Department implemented a Family Service Plan to improve

Timothy’s and Trena’s parenting skills and reunify the

family.

The plan, however, failed, and the case proceeded to a bench trial that

resulted in the involuntary termination of the parents’ parental rights to the

twins, and the appointment of the Department as managing conservator. The trial

court did not terminate parental rights to the couple’s oldest child, T.J.A.M,

but appointed Trena’s mother as managing conservator.

The trial court’s final order was signed February 16, 2007.

Five days later, on February 21st, Trena’s

trial counsel filed a notice of appeal and a motion to withdraw. Timothy’s trial

counsel did the same on February 22nd. Although the trial court never ruled on

the motions to withdraw, it did subsequently appoint appellate counsel for

Timothy and Trena but too late for either to meet the

Family Code’s fifteen-day deadline for filing a statement of points. Tex. Fam. Code § 263.405(b).

Even though they had not filed a statement of points, the parents

appealed the trial court’s termination and custody order, challenging the

sufficiency of the evidence, the ineffectiveness of their trial counsel, and the

constitutionality of section 263.405. The court of appeals concluded that

Timothy’s and Trena’s trial counsel were both

ineffective for failing to file a statement of points but that the failure

ultimately deprived only Timothy of due process. 262 S.W.3d at

19-24. The court accordingly affirmed the termination order as to Trena , but reversed as to Timothy, concluding that the

evidence was legally and factually insufficient to support the termination of

his parental rights to the twins. The court of appeals remanded the issue of

Timothy’s custody rights to the twins for further proceedings, affirming the

remainder of the trial court’s order. Id . at 24-25. Only the Department

perfected an appeal to this Court.

II

The Family Code provides that in parental termination cases a statement

of points, detailing what the party intends to appeal, must be filed with the

trial court within fifteen days of the termination order. [2] This statement may be combined with a

motion for new trial. Tex. Fam. Code §

263.405(b). The trial court must hold a hearing within

thirty days of the termination order to consider any motion for new trial or

issue of indigence. Id . §

263.405(d). The Family Code bars an appellate court from considering any

issue not presented to the trial court in a timely filed statement of points.

Id . §

263.405( i ).

The Department complains that the court of appeals should not have

reviewed the termination order in this case because neither Timothy nor Trena filed a statement of points in the trial court as the

Family Code requires. Despite this alleged error, the Department prevailed in

the court of appeals as to Trena ; the court affirmed

termination of her parental rights to the twins, and she has not filed a

petition for review. Thus, the court of appeals’ judgment affirming the

termination of Trena’s parental rights is final, and

only Timothy’s parental rights to the twins remain at issue here.

The Department does not squarely address the constitutional concerns

raised in the court of appeals. Instead, the Department submits that the right

to appeal a termination order is a statutory right, not a constitutional one,

and that the Legislature clearly has the power to restrict, limit, or even deny

that right. The Department further submits that the procedural requirements of

the statute here are clear and unambiguous, providing for no exceptions. The

Department concedes, as it must, [3] that indigent parents are entitled to

counsel but argues that counsel need not be competent because the procedural

scheme makes no provision for incompetence. The argument ignores our holding in

In re M.S. “that the statutory right to

counsel in parental-rights termination cases embodies the right to effective

counsel.” 115 S.W.3d 534 , 544 (Tex. 2003). In fact, the Department

generally ignores our decision in this case altogether.

In M.S. , the indigent parent complained that her attorney failed

to provide competent representation in violation of her due process rights.

Id. at

543. Specifically, the parent argued, as in this case, that her attorney

was ineffective for not following the appropriate procedure to preserve her

complaint regarding the factual sufficiency of the evidence. Id. at

543-44, 546. After recognizing the indigent parent’s right to competent

counsel, we turned to the question of what constitutes ineffective assistance.

In answering that question, we followed the two-pronged analysis of the United

States Supreme Court in Strickland v. Washington , 466 U.S. 668, 687

(1984):

First, the

defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as

the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is

reliable.

In re M.S. , 115 S.W.3d. at 545. Thus, an ineffective

assistance of counsel claim requires a showing of a deficient performance by

counsel so serious as to deny the defendant a fair and reliable trial.

We further concluded in M.S. that due process considerations

should control our review of a rule governing preservation of a factual

sufficiency complaint in parental rights termination cases. Id. at

547. Although we recognized that a right of appeal might not be

constitutionally required, once granted, the right could not be unreasonably

withdrawn. Id . (quoting M.L.B. v.

S.L.J. , 519 U.S. 102, 111 (1996) (“once

established, these avenues must be kept free of unreasoned distinctions that can

only impede open and equal access to the courts”)). And, because error

preservation in the trial court is the “threshold to appellate review,” we

concluded that it should be reviewed under the procedural due process analysis

established by the United States Supreme Court in Mathews v. Eldridge ,

424 U.S. 319, 335 (1976). In re M.S. , 115 S.W.3d at

547.

Under the Eldridge analysis, a court must “weigh three factors –

the private interests at stake, the government’s interest in the proceeding, and

the risk of erroneous deprivation of parental rights – and balance the net

result against the presumption that our procedural rule comports with

constitutional due process requirements.” Id . (footnote omitted). When weighing

these factors in M.S ., we concluded that “the parent’s fundamental

liberty interest in maintaining custody and control of his or her child, the

risk of permanent loss of the parent-child relationship, and the parent’s and

child’s interest in a just and accurate decision” weighed heavily in favor of

permitting appellate review of the sufficiency of the evidence despite counsel’s

unjustifiable failure to preserve error. Id. at 548. We likewise noted the State’s fundamental interest

in protecting the child’s best interests, interests that are not antagonistic to

those aforementioned. Id. We also noted the associated

interests of the State and the child in an efficient and speedy resolution of

the matter so as not to compound harm to the child through inaction or delay,

but concluded that the State’s interests in economy and efficiency paled in

comparison to the private interests at stake. Id .

We concluded that the State, the parent, and the child shared an interest

in an expeditious and final decision but that the State’s interest in protecting

the child’s welfare must begin “by working toward preserving the familial

bond, rather than severing it.” Id .

(citing Santosky v. Kramer , 455

U.S. 745, 766-67 (1982)). We said

that “[o] nce it is clear that the parent cannot or

will not provide a safe, stable family environment, then the State’s interest in

protecting the welfare of the child shifts to establishing that safe, stable,

and permanent environment for the child elsewhere.” In re M.S. , 115

S.W.3d at 548-49 (citing Santosky , 455

U.S. at 767 ). Thus, we concluded that

the State’s goal of ensuring the child’s safety and stability was served by

procedures promoting an accurate determination of whether the natural parent

could provide a normal home and disserved by procedures that did not. In re M.S. , 115 S.W.3d at 549.

Finally, we concluded that the fundamental liberty interests at issue

were too dear and the risk of erroneous deprivation too significant to

countenance the waiver of a parent’s appellate rights through procedural neglect

under these circumstances. Instead, we held that “if counsel’s failure to

preserve a factual sufficiency complaint is unjustified, then counsel’s incompetency in failing to preserve the complaint raises the

risk of erroneous deprivation too high, and our procedural rule governing

factual sufficiency preservation must give way to constitutional due process

considerations.” Id . Although the procedural

preservation rule at issue in M.S. was a civil court-made rule requiring

a motion for new trial as a predicate for appellate review of a factual

sufficiency issue, and the procedural rule here is a statute to the same effect,

the due process clause applies equally to both situations. U.S. Const . amend . XIV, § 1; Tex. Const . art. I, §

19.

We cautioned in M.S. , however, that not every failure to preserve

factual sufficiency issues would rise to the level of ineffective assistance.

In re M.S. , 115 S.W.3d at 549. The presumption

is that “‘counsel’s conduct falls within the wide range of reasonable

professional assistance,’ including the possibility that counsel’s decision not

to challenge factual sufficiency was based on strategy, or even because counsel,

in his professional opinion, believed the evidence factually sufficient such

that a motion for new trial was not warranted.” Id. (quoting

Strickland , 466 U.S. at 689 ). The parent’s

burden is to show that “‘counsel’s performance fell below an objective standard

of reasonableness.’” In re M.S. , 115 S.W.3d at 549 (quoting Garcia v.

State , 57 S.W.3d 436, 440 (Tex. Crim . App. 2001));

Thompson v. State , 9 S.W.3d 808, 812-13 (Tex. Crim . App. 1999). We agree with the court of appeals that

Timothy met that burden here.

The failure of Timothy’s trial counsel to file a statement of points on

his behalf was neither strategic nor a concession to any lack of perceived

merit. His trial counsel filed a notice of appeal, but did so simultaneously

with his motion to withdraw and did nothing further. There the matter rested

until the trial court appointed appellate counsel some days after the statement

was due. Timothy was still represented by his trial counsel when the fifteen-day

deadline to file the statement of points passed. Tex. R. Civ. P. 10. Trial counsel’s

failure to follow through with his representation until relieved of that duty

was tantamount to abandoning his client at a critical stage of the proceeding.

See Rogers v. Clinton , 794 S.W.2d 9 , 10 n.1 (Tex. 1990) (stating

attorney must satisfy the requirements of Rule 10 of the Texas Rules of Civil

Procedure to withdraw). We accordingly agree with the court of appeals that

Timothy was entitled to effective assistance of counsel through the deadline

date for filing a statement of points and that trial counsel’s performance

during this period was seriously deficient.

Part of the problem here may be resolved by better communication between

trial court and counsel. Often in these cases, there is a transition from trial

to appellate counsel after rendition. Because of the accelerated appellate

timetable and the critical fifteen-day deadline for the statement of points, and

because trial and appellate counsel are often different people, there can be

misunderstandings as to which attorney is responsible for filing a motion for

new trial, a statement of points on appeal, and a notice of appeal.

Given the accelerated timetable, the burden should logically fall on

trial counsel, and in this case necessarily so because

Timothy’s appellate counsel was not appointed until after the fifteen-day period

had run. See, e.g., In re H.R. , 87 S.W.3d 691, 703

(Tex. App.—San Antonio 2002, no pet.) ( concluding that practical effect of accelerated appellate

timetable is to burden trial counsel with responsibility of preserving client’s

appellate rights). As one court of appeals has noted, the fifteen-day deadline

is a trap for the unwary. In re R.J.S. , 219 S.W.3d 623, 627 (Tex.

App.—Dallas 2007, pet. denied). That court of appeals has further suggested that

trial courts should alert parents to the requirements of section 263.405 at the

end of the final order terminating parental rights. Id . We agree and

suggest further that the best way to avoid ineffective assistance of counsel

claims in the future is for the trial courts to take a proactive approach,

assuring that indigent parents do not inadvertently waive their appellate rights

under the Family Code. Because of the accelerated nature of these cases, trial

courts must act expeditiously when appointing new counsel for the appeal.

III

An ineffective assistance of counsel claim, however, requires more than

merely showing that appointed counsel was ineffective. There are two elements to

the S trickland standard, and, under the second, the defendant must show

that counsel’s “deficient performance prejudiced the defense . . . that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland ,

466 U.S. at 687 . The court of appeals

concluded that the second element had been met in this case because, but for

counsel’s unprofessional error, the result of the proceeding would have been

different; specifically, had counsel properly preserved error by filing the

statement of points, the court of appeals would have reversed the termination

order because the evidence was insufficient to support the relevant grounds for

termination of Timothy’s parental rights. 262 S.W.3d at 19,

24.

Proceedings to terminate parental rights under the Family Code require

proof by clear and convincing evidence. Tex. Fam. Code § 161.001(1). Clear and

convincing evidence is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Id. § 101.007 ; In re

J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002). When the legal sufficiency

of the evidence is challenged:

[A] court should 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. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting

a legal sufficiency review, looking at the evidence in the light most favorable

to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding

if a reasonable factfinder could do so. A corollary to

this requirement is that a court should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have

been incredible. This does not mean that a court must disregard all

evidence that does not support the finding. Disregarding undisputed facts that

do not support the finding could skew the analysis of whether there is clear and

convincing evidence. If, after conducting its legal sufficiency review of the

record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the

matter that must be proven is true, then that court must conclude that the

evidence is legally insufficient.

In re J.F.C. , 96 S.W.3d at 266 .

When the factual sufficiency of the evidence is challenged, only then is

disputed or conflicting evidence under review. As we said in J.F.C. : “If,

in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding

is so significant that a factfinder could not

reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient.” Id . The court of appeals should further

explain in its opinion “why it has concluded that a reasonable factfinder could not have credited disputed evidence in

favor of the finding.” Id . at

267.

The court of appeals here found the evidence to be both legally and

factually insufficient to support the trial court’s grounds for terminating

Timothy’s parental rights. Those grounds included the trial court’s

determination that Timothy had (1) knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endanger the physical or

emotional well-being of the children; 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. Tex. Fam. Code § 161.001(1 )( D), (E). The court of appeals concluded that there was no

evidence to support the first ground because the twins had been removed from

Timothy at birth. 262 S.W.3d at 24. The twins had

therefore always been in “‘conditions or surroundings’ dictated by the

Department, not Timothy.” Id .

As to the second ground, the court concluded that while there was

evidence calling Timothy’s parenting skills into question recent improvements in

Timothy’s parenting skills, life choices, and living situation prevented a

reasonable factfinder from forming a firm belief or

conviction that Timothy engaged in conduct exposing the twins to loss or injury

or to emotional or physical jeopardy. See id. (“ insufficient evidence of Timothy’s continued drug use,

subsequent incarceration, or other anti-social behavior” prevented firm

conviction of endangerment). The court noted, however, that a child need not

suffer actual injury to have been endangered and that a parent’s drug use and

its effects might establish an endangering course of conduct. Id.

We have previously said that endangering conduct is not limited to

actions directed towards the child. Tex. Dep’t of Human Servs . v.

Boyd , 727 S.W.2d 531, 533 (Tex. 1987). It necessarily follows that the

endangering conduct may include the parent’s actions before the child’s birth,

while the parent had custody of older children, including evidence of drug

usage. See id. (stating that although endanger means more than a threat

of metaphysical injury or the possible ill effects of a less-than-ideal family

environment, it is not necessary that the parent’s conduct be directed at the

child or that the child actually suffers injury); see also In re

M.N.G. , 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied)

(holding that courts may look to parental conduct both before and after child’s

birth to determine whether termination is appropriate). We accordingly agree

that a parent’s use of narcotics and its effect on his or her ability to parent

may qualify as an endangering course of conduct. [4]

Timothy admitted to daily marijuana use before the twins were born,

although he testified that he never used drugs in his older daughter’s presence.

Timothy and Trena also had a history of domestic

violence. Timothy’s mother testified that there had been two or three incidents

of domestic violence. Trena’s drug use was the cause

of many of the problems in the marriage. Timothy testified about forcing Trena to leave their home “quite a few times” because of her

drug use. On the majority of these occasions, he permitted Trena to leave with their daughter although he presumably

knew this was not in their daughter’s best interests.

After the removal of the children, Timothy was allowed supervised

visitation and was given a copy of his service plan. Part of the service plan

required Timothy to submit to drug tests, two of which he missed. A few months

after the twins were removed, Timothy was incarcerated

on domestic violence charges, filed by Trena in 2004,

which she later recanted. Upon his release from jail, Timothy was advised to

attend parenting classes and take a drug screening test. He did not complete the

drug screen and subsequently moved to California where he attended a substance abuse

program and parenting classes. After returning to Texas, Timothy obtained

steady employment, improved housing, and reliable transportation for his

children. He also attended parenting classes, exercised regular visitation, and

passed three successive drug tests. However, Timothy testified that he tested

positive for marijuana shortly before the final hearing commenced in this case.

He also remained delinquent in his child support.

Focusing on Timothy’s positive improvement as a parent, the court of

appeals concluded that the evidence was both “legally and factually insufficient

to support the predicate finding of conduct endangering the children.” 262 S.W.3d at 24. We disagree regarding the legal sufficiency

of the evidence. While the recent improvements made by Timothy are significant,

evidence of improved conduct, especially of short-duration, does not

conclusively negate the probative value of a long history of drug use and

irresponsible choices. Viewing all the evidence in the light most favorable to

the trial court’s judgment and recognizing that the factfinder , not the appellate court, is the sole arbiter of

the witnesses’ credibility and demeanor, we conclude that there was some

evidence of endangerment on which a reasonable factfinder could have formed a firm belief or conviction of

endangerment. Tex. Fam. Code §

161.001(1 )( E); In re J.F.C. , 96 S.W.3d at

266 .

The court of appeals’ analysis here instead suggests a comparison of

Timothy’s conduct over time, attributing greater weight to his recent

improvements and less to his past challenges. While we do not question the

court’s logic, we do reject its use here as part of the legal sufficiency

review. See In re L.M.I. , 119 S.W.3d 707, 712

(Tex. 2003)

(“Even under the standard we articulated in In re J.F.C., this reweighing of the evidence

is improper.”). Weighing conflicting evidence and inferences to determine

whether a verdict should be vacated as manifestly unjust is appropriately a part

only of the reviewing court’s factual sufficiency review, a matter committed

under the Texas Constitution to the courts of appeals and not to this Court.

Tex. Const . art. V, §

6.

*

* *

In sum, we agree that Timothy’s ineffective assistance of counsel claim

raises due process concerns and that section 263.405( i ) of the Family Code is unconstitutional to the extent it

prevents a court from considering those claims. We do not agree with the court

of appeals, however, that there was no clear and convincing evidence to support

termination of Timothy’s parental rights on the ground of endangerment. But even

though the court of appeals found no evidence to support this ground, it

nevertheless remanded the cause to the trial court for further proceedings on

the issue of custody. Because a remand is also the appropriate judgment when

evidence is found to have been factually insufficient, we modify the court’s

judgment to remand the cause to the trial court for a new trial on the issue of

Timothy’s parental rights.

_________________________________________

David M. Medina

Justice

OPINION ISSUED: May 1, 2009

[1]

When this case began, the parental rights to a fourth child, J.O.A., were at

issue. J.O.A. is Trena’s child from a previous

relationship and has lived with his maternal grandmother since the age of four.

The trial court did not terminate Trena’s parental

rights to J.O.A. but appointed the child’s maternal grandmother permanent

managing conservator. J.O.A., who was born in 1989, is now an adult.

[2]

Section 263.405(b) of the Family Code was amended in 2007, after the

commencement of this parental termination proceeding. The amendment made no

apparent substantive change to the statement of points

requirement. The former provision, applicable here, provided:

Not later than the 15th day after the date a final order

is signed by the trial judge, a party intending to appeal the order must file

with the trial court a statement of the point or points on which the party

intends to appeal. The statement may be combined with a motion for new

trial.

Act of May 22, 2001, 77th Leg., R.S.,

ch . 1090, § 9, 2001 Tex. Gen. Laws 2397 (amended 2007)

(current version at Tex. Fam. Code

§ 263.405(b)).

[3]

Texas Family Code section 107.013(a )( 1) guarantees

indigent persons a right to counsel in government initiated parental rights

termination cases.

[4]

In re S.N. , 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (“Evidence of

illegal drug use or alcohol abuse by a parent is often cited as conduct which

will support an affirmative finding that the parent has engaged in a course of

conduct which has the effect of endangering the child.”); Toliver v. Tex. Dep’t of Family and Protective

Servs ., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (“Evidence of narcotics use and its effect on a parent’s

life and her ability to parent may establish that the parent has engaged in an

‘endangering course of conduct.’”); In re R.W. , 129 S.W.3d 732, 739 (Tex.

App.—Fort Worth 2004, pet. denied) (“As a general rule, conduct that subjects a

child to a life of uncertainty and instability endangers the physical and

emotional well-being of a child. Drug use and its effect on a parent’s life and

his ability to parent may establish an endangering course of conduct.”) ( citation omitted).