Joe Lewis Valencia v. Department of Family and Protective Services

Opinion issued July 29,

2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00345-CV

____________

IN THE INTEREST OF V.V., A MINOR CHILD

On Appeal from the

313th District Court

Harris County,

Texas

Trial Court Cause No. 2006-10410J

DISSENTING OPINION

Judges should decide the cases that come before them based upon the facts

in evidence and the governing law, not upon their moral preferences, desires,

or the dictates of their emotions. The

“obvious problem” with “results-oriented judging” is that “it produces bad

results because it guts the rule of law.” [1]

It subjects litigants not to the Rule of

Law, which can be discerned, understood, and applied, but to judicial whim,

which is known only to the judges involved.

Accordingly, judges should impartially and dispassionately decide the

cases that come before them, and, “[i]nstead of worrying about the result in

particular cases, judges should follow the rule of law in thousands of cases

because doing so leads to better results than not doing so.” [2] In contrast, “result–oriented judging . . .

produces bad consequences on a system-wide basis.” [3]

This Court and the other intermediate appellate courts like it exist to ensure

due process of law, the most fundamental and ancient right established in

Anglo-American jurisprudence and first articulated in Magna Carta. [4]

In doing so, we are to correct the harmful errors of trial courts, including

erroneous fact findings. These are

solemn duties. When appellate judges fail

in fulfilling them, the whole justice system fails.

In this case, the assigned panel, exercising judicial restraint, [5]

impartially and dispassionately decided the issues presented to this Court

based upon the actual facts in evidence and the governing law. The majority, taking upon itself the roles of

advocate and policy maker, has now, in suggesting relief neither requested nor

argued for by either party, conditionally affirmed the trial court’s judgment.

Through its en banc opinion, the majority makes new law, changing the rules

after the panel unanimously made its decision under the governing law. The stunning effect of the majority’s opinion is

that it will shut down all claims for the constructive denial of the right to

counsel in termination of parental rights cases, regardless of how egregious

the inaction of trial counsel.

In overruling the unanimous panel opinion in this case, the majority does

not dispassionately state the pertinent background facts. In fact, it, in large part, considers as fact

mere allegations, made for the first time on appeal in briefing and in motions,

which are not in the appellate record and are in no way supported by the actual

five and one-half page, double spaced, trial transcript, which is set out in

its entirety below. Moreover, the

majority not only misinterprets the well-established governing law, it,

inconsistent with that law, creates out of whole cloth, a conditional

affirmance—an unnecessary appellate abatement procedure for parents claiming

ineffective assistance of trial counsel in termination of parental rights cases

to prove up in a trial court what they have already established as a matter of

law in an intermediate appellate court.

In reaching for what it considers to be a better result than that

compelled by the governing law, the majority sacrifices the fundamental duties

that attorneys owe to their clients along with the strict standard of proof

necessary to terminate parental rights adopted by the Texas Legislature. The majority has indeed produced a bad

consequence on a system-wide basis. Thus, this case reveals a fundamental

breakdown in the judicial process in Texas.

The majority fails to realize what most Americans, based upon a common experience,

have come to understand all too well—government agencies, like all organizations,

are capable of “encourag[ing] methods of decision making that make failure even

more likely and then inevitable.” [6] If allowed

to stand, the majority’s en banc opinion will not only encourage trial courts to

(1) constructively deny parents their statutory right to counsel in parental-rights

termination cases and (2) terminate parental rights on less than clear and

convincing evidence in summary proceedings, it will make the practices

“inevitable.”

Accordingly, I dissent.

The Issues Presented

Appellant, Joe Lewis Valencia, challenges the trial court’s termination

of his parental rights to his minor child.

In three issues, Valencia contends that his court-appointed attorney’s

performance at trial “was so patently deficient that [he] was denied any

meaningful assistance of counsel altogether” and the evidence presented against

him at trial, as revealed in the five and one-half page trial transcript, is

legally and factually insufficient to support the trial court’s findings that

he had “endangered” [7] the child and

that termination of his parental rights is in the child’s best interest.

In regard to his first issue, the panel in our original opinion, [8]

viewing the entire record before us, stated that “we are compelled to hold that

Valencia received no meaningful assistance of counsel and was denied an advocate

for his cause.” We noted that his “trial

counsel idly sat by, doing nothing to ensure Valencia a fair hearing, and he

essentially allowed DFPS to terminate Valencia’s parental rights without having

to prove its case.”

In regard to his second issue, the panel noted that the only evidence

offered by DFPS on the issue of “endangerment” consisted of copies, mostly

uncertified, of criminal records purportedly showing that Valencia, (1) prior

to the child’s birth, had been convicted of several misdemeanor and state jail

felony offenses; (2) at the time of the child’s birth, was in jail pending

trial for the offense of aggravated robbery, a case which was later dismissed;

and (3) after the child’s birth, stood accused by information of the

misdemeanor offense of assaulting Sandra Flores, the child’s biological mother,

who had already agreed to relinquish her parental rights. We also noted that the record conclusively

establishes that Valencia had never had possession of the child. Accordingly, we held that the evidence is

legally insufficient to support the trial court’s finding that Valencia, based

on his prior history of incarceration for criminal offenses, actually

endangered the child.

The unanimous panel reversed that portion of the decree terminating the

parent-child relationship between Valencia and the child and rendered judgment

that Valencia’s parental rights were not terminated. [9]

The Evidence

Facts are stubborn things, and the few facts presented in the paltry

record of this case are indeed unyielding.

The clerk’s record contains the November 10, 2006 affidavit of DFPS agent

C. Heiskill, who testified that DFPS “received a referral alleging the physical

abuse” of the child, who was born to Sandra Lynn Flores on November 7, 2006. Both the mother and the child tested positive

for opiates, and Flores told Heiskill that Valencia is the father of the child

and he was “in jail for robbery.” After

removing the child from Flores’s custody, Heiskill located Valencia in the

Harris County Jail, but she could not interview him because he was in

quarantine. The State subsequently

dismissed the robbery case.

The five and one-half page, double spaced, reporter’s record reads more

like a proceeding in Star Chamber than a real adversary trial in a Texas

courtroom. The transcript of the April 9,

2008 nonjury trial, which under a conservative estimate could not have lasted

more than a few minutes, reads, in its entirety, as follows:

[Trial Court]: 2006-10410J; In the Interest of [the

child]. The Court will take judicial notice of the contents of [its] file. Proceed. Okay.

[Trial Counsel]: Judge, if I may, on behalf of the

father, the father was released, we sent him notice to be here today to

come. To bring to your attention, he is

out of Harris County and in county jail.

We’re asking for a couple of weeks.

[Trial Court]: Denied.

[DFPS Counsel]: Call my first witness.

[DFPS Counsel]: State your name for the Court.

[Washington]: Felicia Washington.

[DFPS Counsel]: How are you employed?

[Washington]: Caseworker for DFPS.

[DFPS Counsel]: As such, are you assigned to the Valencia

case?

[Washington]: Yes, I am.

[DFPS Counsel]: Tell the Court what the goal is in the

case?

[Washington]: The goal is unrelated adoption.

[DFPS

Counsel]: Adoption. Okay. Could you

please tell the Court how the child came into care?

[Washington]: Back in 2007 --yeah.

[Trial Court]: I will take judicial notice of the

contents of its file, that includes the affidavit that describes the reason the

child was taken into care.

You may proceed.

[DFPS Counsel]: Where is she currently placed?

[Washington]: Placed in a kinship placement.

[DFPS Counsel]: Is the placement meeting all of the physical

and emotional needs?

[Washington]: Yes.

[DFPS Counsel]: Let’s talk about Joe Valencia. Originally,

the named father; is that correct?

[Washington]: Yes.

[DFPS Counsel]: Mr. Valencia was in jail when this case

first started?

[Washington]: Yes.

[DFPS Counsel]: And personally served in November, 2006?

[Washington]: Yes, he was.

[DFPS Counsel]: When was the first time you had contact

with him?

[Washington]: The last hearing that we had.

[DFPS Counsel]: Which was in January of -­

[Washington]: 2008.

[DFPS Counsel]: At the last hearing, Mr. Valencia showed

up and offered to take a paternity test?

[Washington]: Yes, he did.

[DFPS Counsel]: Do you know the result of the paternity

test?

[Washington]: Yes. The result was, he is the father

of the child.

[DFPS Counsel]: He knows he is the father, and since then

has he made any contact with the Agency?

[Washington]: No, he has not.

[DFPS Counsel]: And has he made any attempts to check on

the welfare of the child?

[Washington]: No, he has hot.

[DFPS Counsel]: And to your knowledge, Mr. Valencia was

living with the mother of the child, correct?

And this is the mother that tested positive for cocaine at the time of

the birth of the child?

[Washington]: Yes.

[DFPS Counsel]: And to your knowledge, does Mr. Valencia

have a criminal record?

[Washington]: Yes, he has.

[DFPS Counsel]: And, your Honor, I’m asking for State’s

Exhibit No.1, Mr. Valencia’s criminal record to be admitted.

(Petitioner’s Exhibit No.1 offered)

[Child’s Ad

Litem]: No objections.

[Trial Court]: It’s admitted.

(Petitioner’s Exhibit No.1 admitted)

[DFPS Counsel]: 749311; burglary of a motor vehicle; DWI;

evading arrest; theft; assault; theft; DWI; more unauthorized use of a motor

vehicle; and prosecuted as a third defendant for theft and aggravated robbery,

which was dismissed due you to a lack school [sic] of witnesses; and also as

recent --in jail right now for assault of Sandra Flores the mother, and we

would like to mark that.

(Petitioner’s Exhibit No.1 offered)

[Trial Court]: Any other exhibit or is that it?

[DFPS Counsel]: That is it right here. These are photos

of his assault.

[Trial Counsel]: Judge, object, goes to the criminal

side.

[Trial Court]: Overruled.

[Child’s Ad

Litem]: No objections.

[Trial Court]: They are admitted. [ [10] ]

(Petitioner’s Exhibit No.1 admitted ) [ [11] ]

[Washington]: That’s the mother of the child.

[DFPS Counsel]: Has Mr. Joe Valencia been able to show he

has any relatives that could care for the child?

[Washington]: No, he does not.

[DFPS Counsel]: Based on the Court of contact that he has

been in and out of jail every year for the --at least 10 years, and if he went

to jail and the child was placed with him, how would that affect the emotional

stability of the child?

[Trial Counsel]:

Objection, speculation.

[DFPS Counsel]: So, he has no -­

[Washington]: Go ahead. That’s okay.

[DFPS Counsel]: Has the child been able to bond with Joe?

[Washington]: With Joe?

[DFPS Counsel]: With Joe Valencia?

[Washington]: No.

[DFPS Counsel]: How long has the child been placed with its

current caregivers?

[Washington]: 14 months.

[DFPS Counsel]: 14 months. And has the child and family

bonded?

[Washington]: Yes, very much.

[DFPS Counsel]: Would it be in the best interest of the

child for the child to stay with the family?

[Washington]: Yes.

[DFPS Counsel]: And why?

[Washington]: They’ve had the child since she was

four months old, and the child’s in a very stable environment, and the child is

bonded to the family.

[DFPS Counsel]: And since Joe has an extensive criminal

history, including domestic violence, it would not be in the best interest to

return the child to him?

[Washington]: No, to return the child.

[DFPS Counsel]: Based on over 10 years of repeated criminal

history including assault of the mother, are you asking that Joe Valencia’s

rights be terminated and he has engaged in conduct that endangers the physical

and emotional well-being of the child?

[Washington]: Yes.

[DFPS Counsel]: No

further questions.

[Trial

Court]: Cross.

[Trial Counsel]: No questions, Judge.

[Child’s Ad

Litem]: No questions, your Honor.

[Trial

Court]: Petition is

granted. TDFPS is appointed PMC. Entry of Judgment, today. Review hearing next 10-20-08. Good luck.

Given this brief record, one can easily compare the actual facts

established at trial with what the majority, based on the representations of

DFPS, asserts as fact in its opinion.

Such a comparison reveals that several of the assertions are either not

supported by the record or are objectively false:

Majority Assertions:

What the Record reveals:

“The record . . . reveals .

. . [Valencia’s] wholesale lack of

parenting beyond the moment of conception . . .”

“A lack of all contact with a child without any

proffered excuse and no effort to

insure her safety . . . ”

“. . . no effort to care for his daughter . . . .”

“. . . the father has not

inquired about or supported the child or made any effort to see to her needs .”

“The father has never seen

the child, paid support, or made any arrangements to provide her with food,

clothing, shelter or care .”

As

revealed above, DFPS did not even explore this subject matter in the trial

court.

It

relied exclusively upon Valencia’s

“extensive

criminal history” as its proof that he had endangered the child.

As

revealed above, DFPS merely asked Washington if Valencia, after he had

offered to take a paternity test, which revealed that he is the father’s

child, had “made any contact with the

Agency ” or “made made any attempts to

check on the welfare of the child?”

She merely answered that he had not done either of those two things.

“The father offered no excuse for his behavior at trial.”

Because Valencia’s trial counsel did not know how to get him to

court, Valencia could not appear at trial to defend himself.

“[He] assaulted the child’s mother.”

“The record . . . reveals the

father’s assault on the child’s mother . . . .”

At the time the trial court entered its decree, Valencia had

been accused by information of the misdemeanor assault of the child’s mother,

who had already agreed to relinquish her parental rights.

DFPS did not produce any testimony to prove that Valencia had

committed the offense of assault.

“The record . . . reveals .

. . a child left in the care of the state at birth because the father was in jail and the mother had ingested opiates

during the pregnancy.”

In her affidavit, in regard to “Facts Necessitating Removal of

the Child,” Heiskill testified that “[DFPS] received a referral alleging the physical abuse of [the child] . . .

[who had] tested positive for

Opiates . . . .”

Nothing in Heiskill’s affidavit testimony in any way implicates

Valencia or his conduct regarding the child.

Heiskill merely noted that “[Valencia] is in jail for robbery.”

“. . . four of this father’s eight convictions are for felonies .”

Valencia’s criminal history consists of misdemeanors and state

jail felony convictions for which he, prior to the child’s birth, had served

time in either a county or state jail facility.

“The father has not

attempted to seek . . . reunification with [the child].”

Valencia has never relinquished his parental rights, and he has maintained

this appeal for over two years.

As once emphasized

by John Adams, “whatever may be our wishes, our inclinations, or the dictums of

our passions, they cannot alter the state of facts and evidence.” [12]

Procedural Background

In its November 10, 2006 Original Petition for Protection of a Child, for

Conservatorship, and for Termination in a Suit Affecting the Parent-Child

Relationship, DFPS alleged that “Rene Flores” was the child’s “father,” Valencia

was the child’s “alleged father,” and an “unknown” man was the child’s alleged

father. DFPS sought a determination of

Valencia’s parentage, and, if “reunification with [Valencia could] not be

achieved,” the termination of the parent-child relationship, if any existed,

between Valencia and the child. On

November 16, 2006, Valencia was served with citation in the Harris County Jail,

but he did not appear at the adversary hearing later that same day because he

was in jail on a charge that was later dismissed.

The trial court, on May 8, 2007, appointed an attorney ad litem for the

“unknown father” of the child. On

September 6, 2007, Sandra Flores signed an affidavit of voluntary

relinquishment of her parental rights with respect to the child. That same day, Valencia’s court-appointed

attorney (hereinafter “trial counsel”), with the help of counsel for DFPS, filed

a written “Unopposed Motion For Continuance” to bench warrant Valencia to the

trial court. [13] On January 3, 2008, trial counsel filed an

answer on behalf of Valencia, and Valencia, who appeared in court for the first

time, “offered” to take a paternity test, which later established that he is in

fact the father of the child.

Three months later, the trial court granted DFPS’s petition and entered

its Decree For Termination solely on the ground that Valencia had “engaged in

conduct or knowingly placed the child with persons who engaged in conduct which

endangers pursuant to § 161.001(1)(E) of the Texas Family Code.” [14]

On April 24, 2008, Valencia’s trial counsel filed a Motion for New Trial

and Statement of Appellate Points, a Request for Findings of Fact and

Conclusions of Law, and a Notice of Appeal.

The record does not contain findings of fact and conclusions of law, nor

does it show that trial counsel ever filed a notice of past due findings of

fact and conclusions of law. [15] In his new trial motion, trial counsel

contended that his “oral motion for continuance to allow [Valencia] to be

brought over from the Harris County Jail should have been granted” as Valencia

was “within walking distance of the courtroom”; the trial “court could have

ordered all parties to mediation to narrow the issues for trial”; a new trial

would “not unduly burden” the trial court; a new trial was in the best interest

of the child; and justice would not “properly be served” without a new trial.

In his Statement of Appellate Points, Valencia’s trial counsel contended

that the trial court had erred in denying Valencia access to the court because,

as “an inmate at the Harris County Jail,” he was “available upon request of the

court”; the evidence is legally and factually insufficient to support the trial

court’s finding that termination of Valencia’s parental rights was in the best

interest of the child; the trial of the case, in the absence of Valencia,

“deprived him of his due process pursuant to the 5th and 14th Amendments to the

U. S. Constitution, and Article 1, Sections 13 and 19 of the Texas

Constitution” and “his right to equal protection of the laws pursuant to the

5th and 14th Amendments to the U. S. Constitution, and Article 1, Sections 3,

3a, 13, and 19 of the Texas Constitution”; and his appellate points were not frivolous

because termination of Valencia’s parental rights affected his

“constitutionally protected fundamental right to parent.”

The trial court, after a hearing held on May 6, 2008, denied Valencia’s

new trial motion, appointed Valencia’s trial counsel to represent him on appeal,

and found Valencia’s appeal “frivolous.”

Valencia’s trial counsel subsequently filed in this Court his appellant’s

brief, in which he argued, in a single issue, that the trial court erred in

“determining [Valencia’s] appeal to be frivolous” because Valencia’s

“fundamental right to parent is constitutionally protected.” Because the record was incomplete, this Court

ordered the court reporter to prepare a record of the May 6, 2008 hearing. After the court reporter responded that the

record of the May 6, 2008 hearing could not be located, this Court ordered the

court reporter to supplement the record with all recorded testimony and

evidence admitted at the April 9, 2008 nonjury trial. Upon receipt of the supplemented record, this

Court afforded Valencia’s trial counsel the opportunity to review it and file

an amended brief. Inexplicably, he filed

a “Waiver of Opportunity to File a Supplemental Brief.”

After reviewing the entire clerk’s record and the five and one-half page

trial transcript along with Petitioner’s Exhibit No. 1, this Court concluded

that Valencia’s appeal is not frivolous because Valencia had an arguable basis

for challenging the legal and factual sufficiency of the evidence supporting

the trial court’s finding that he had endangered the child and for challenging

the effectiveness of his appointed counsel. [16] This Court struck the brief of Valencia’s trial

counsel, abated the appeal, and remanded the case to the trial court for the

appointment of new appellate counsel. We

ordered Valencia to file full briefing on the pertinent issues and, if

appropriate, an issue challenging the effectiveness of trial counsel’s

assistance.

Constructive Denial of Counsel

In his first issue, Valencia argues that because his trial counsel’s

performance “did not simply consist of errors, omissions or poor trial

strategy” and “was so patently deficient,” Valencia “was denied any meaningful

assistance of counsel altogether” and prejudice to his defense must be

“presumed.” See Strickland v.

Washington , 466 U.S. 668, 692 , 104 S. Ct. 2052, 2067 (1984).

The Texas Supreme Court has held that “an ineffective assistance of

counsel claim can be raised on appeal despite the failure to include it in a

statement of points.” In re J.O.A. ,

283 S.W.3d 336, 339 (Tex. 2009). Thus,

Valencia may raise this issue for the first time on appeal notwithstanding the

fact that his trial counsel failed to assert it in his statement of appellate

points as required by statute. Id .;

see Tex. Fam. Code Ann . § 263.405(i) (Vernon 2008) (“The

appellate court may not consider any issue that was not specifically presented

to the trial court in a timely filed statement of points on which the party

intends to appeal or in a statement combined with a motion for new trial.”).

Standard

of Review

The Texas Family Code requires the appointment of counsel to represent an

indigent parent who responds in opposition to a suit filed by a governmental

entity in which termination of the parent-child relationship is requested. [17]

Tex. Fam. Code Ann . § 107.013(a)(1) (Vernon Supp.

2009). The Texas Supreme Court has held

that this statutory right to counsel “embodies the right to effective

counsel.” In re M.S. , 115 S.W.3d

534, 544 (Tex. 2003). In doing so, the

supreme court emphasized that “‘[i]t would seem a useless gesture on the one

hand to recognize the importance of counsel in termination proceedings, as

evidenced by the statutory right to appointed counsel, and, on the other hand,

not require that counsel perform effectively.’”

Id . (quoting In re K.L. , 91 S.W.3d 1, 13 (Tex. App.—Fort

Worth 2002, no pet.)). Accordingly, the

court concluded that the appropriate standard of review to apply in evaluating claims of ineffective

assistance of counsel in civil parental-rights termination cases is that set

forth by the United States Supreme Court for criminal cases in Strickland v.

Washington. Id .

In Strickland , the United States Supreme Court, pursuant to the

Sixth Amendment, like the Texas Supreme Court, pursuant to Family Code section

107.013(a)(1), expressly recognized:

That a person who happens to be a lawyer is present at

trial alongside the accused, however, is not enough to satisfy the

constitutional command. The Sixth

Amendment recognizes the right to the assistance of counsel because it

envisions counsel’s playing a role that is critical to the ability of the

adversarial system to produce just results. An accused is entitled to be

assisted by an attorney, whether retained or appointed, who plays the role

necessary to ensure that the trial is fair .

466 U.S. at

685 , 104 S. Ct. at 2063 (emphasis added).

The purpose of the guarantee of counsel in our adversary system of

justice is “to ensure that a defendant has the assistance necessary to

justify reliance on the outcome of the proceeding .” Id .

at 691–92, 104 S. Ct. at 2067 (emphasis added).

Thus, to constitute ineffective assistance, any deficiencies in

counsel’s performance must be prejudicial to the defense. Id . Such prejudice, depending upon the context,

is either legally presumed or, if not, determined by inquiry. Id .

at 692, 104 S. Ct. at 2067 .

The Supreme Court, in Strickland , expressly explained that

in certain contexts, such “ prejudice is presumed ” and specifically noted:

Actual or

constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.

Id . (emphasis added). In these circumstances, “an inquiry into

prejudice” is simply unnecessary. Id .

If the right to counsel in an adversary proceeding has been denied,

actually or constructively, how can a court ever justifiably rely on the

outcome of the proceeding? As succinctly

stated by John Adams, “no [person] in a free country should be denied the right

to counsel and a fair trial.” [18]

In the infamous sleeping-lawyer case, the United States Court of Appeals

for the Fifth Circuit, sitting en banc, emphasized that there is nothing “new”

about the rule of presumed prejudice and the rule is “well-established.” Burdine v. Johnson , 262 F.3d 336, 348

(5th Cir. 2001). As explained by Judge

Patrick Higginbotham:

We presume prejudice because experience tells us that

an occurrence presents both a high probability of prejudice and a difficulty of

“proving it” in any finite sense. The

law speaks of presumption not to supply a missing ingredient, but rather to

recognize its inevitable presence . Right to counsel at critical stages is only

an example of this principle. We simply

will not put a person on trial for his life in the absence of counsel.

Id . at 355 (Higginbotham, J. concurring)

(emphasis added).

In United States v. Cronic , the Supreme Court

expounded upon the principle that prejudice is presumed “if the accused is

denied counsel at a critical stage of his trial [or] . . . if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing .” 466 U.S. 648, 659 , 104 S. Ct. 2039, 2047 (1984)

(emphasis added). The Supreme Court explained:

The [Sixth] Amendment requires

not merely the provision of counsel to the accused, but “Assistance,” which is

to be “for his defence.” . . . If no

actual “Assistance” “for” the accused’s “defence” is provided, then the

constitutional guarantee has been violated.

To hold otherwise “could convert the appointment of counsel into a sham

and nothing more than a formal compliance with the Constitution’s requirement

that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of

counsel cannot be satisfied by mere formal appointment.”

Id . at 654–55,

104 S. Ct. at 2044 (internal citations omitted). Accordingly, prejudice is presumed in

circumstances that make it “unlikely that the defendant could have received the

effective assistance of counsel.” See

id . at 666, 104 S. Ct. at 2051.

Why? Because the right to counsel

has been denied. See id . at 654, 104 S. Ct. at 2044.

In cases in which counsel for an accused has not entirely failed to subject the

prosecution’s case to meaningful adversarial testing, but has failed to render

adequate legal assistance, prejudice is not legally presumed, and a prejudice

inquiry must be conducted. In Strickland , the Supreme Court announced

a two-prong test for evaluating such claims. 466 U.S. at 687, 104 S. Ct. at 2064. In regard to a criminal defendant’s claim of

“actual ineffective assistance of counsel” based on the errors and omissions of

his attorney, the defendant must show that (1) his attorney’s performance was

deficient and fell below an objective standard of reasonableness and (2) the

deficient performance prejudiced his defense. Id .

at 684–87, 104 S. Ct. at 2063–64. Of

course, if counsel entirely fails to subject a case to “meaningful adversarial

testing,” there is no performance to evaluate.

In regard to the second prong of the test, “[t]he defendant must show

that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id . at 694, 104 S. Ct. at 2068 (emphasis

added); see also Bell v. Cone , 535

U.S. 685, 686 , 122 S. Ct. 1843, 1846 (2002).

The Supreme Court expressly stated that this does not mean that a defendant must “show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Strickland

466 U.S. at 693 , 104 S. Ct. at 2068 .

Rather, the term “reasonable probability,” as defined by the Supreme

Court, means “a probability sufficient to undermine confidence in the

outcome.” Id . at 694, 104 S. Ct. at 2068 (emphasis added). Thus,

The result of a proceeding can

be rendered unreliable, and hence the proceeding itself unfair, even

if the errors of counsel cannot be shown by a preponderance of the evidence to

have determined the outcome .

Id . (emphasis added). The Texas

Supreme Court has recently echoed this standard by stating that the focus for

the prejudice inquiry is whether counsel’s mistakes were “so serious as to deny

the defendant a fair and reliable trial.” In

re B.G. , No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (quoting In re J.O.A. , 283 S.W.3d at 344 (citing Strickland , 466 U.S. at 687 , 104 S. Ct.

at 2064 )). The test for prejudice is

not, as the majority and our concurring colleague assert, that a defendant must

show that, absent counsel’s deficient performance, the outcome of his trial

would have been different. [19] Contrary to the majority’s claim, Strickland simply does not require

Valencia to show that his trial “counsel’s inadequacy caused the trial court to

make the wrong decision.”

One can never

justify reliance on the outcome of a proceeding in which the right to counsel

has been actually or constructively denied.

Thus, it makes no sense to further inquire whether there is a reasonable

probability, i.e., one sufficient to undermine confidence, that the outcome of such

a proceeding would have been different.

Presumed Prejudice

In support of his argument that he received no

meaningful assistance of counsel in the trial court and prejudice to his

defense must be legally presumed, Valencia emphasizes the shocking brevity of

the trial transcript of his parental-rights termination trial and that trial

counsel:

1. failed to bench warrant Valencia to

trial, and failed to put his motion for continuance, based on his need to

secure Valencia’s presence at trial, in writing or to verify it;

2. failed to object when the trial court

took judicial notice of the contents of DFPS’s file;

3. failed to object to the introduction into

evidence of Petitioner’s Exhibit No. 1, which contained numerous

unauthenticated copies of purported criminal records;

4. made the

invalid objection “goes to the criminal side”;

5. failed to cross-examine Washington or to

call any witnesses or offer any evidence on Valencia’s behalf; and

6. failed to include in his statement of

appellate points a challenge to the legal and factual sufficiency of the

evidence supporting the trial court’s finding that Valencia had endangered the

child.

Based on these fundamental failures to act as an advocate on his behalf

at each critical stage of the proceeding below, Valencia asserts that his trial

counsel’s representation “was so outrageous that it went beyond incompetent and

can be rightly characterized as inert.”

The record in this case compels the conclusion

that Valencia received no meaningful assistance of counsel during the critical

pre-trial, trial, and post-trial stages of the parental-rights termination

proceeding. Although the trial court

below formally appointed a lawyer to represent Valencia, Valencia was

constructively denied his right to counsel.

The Fifth Circuit has noted that a “constructive

denial of counsel occurs when the defendant is deprived of the guiding hand of

counsel.” Childress v. Johnson ,

103 F.3d 1221, 1228 (5th Cir. 1997) (internal citations omitted). The court explained that if “the defendant

complain[s] of counsel’s errors, omissions, or strategic blunders in the

context of an active adversarial representation,” then the Strickland

two-prong deficient performance standard applies. Id . at 1229. The “critical question in assessing a . . .

right to counsel claim is whether the [defendant] asserts that he received

incompetent counsel, or none at all .” Id . at 1230 (emphasis added). If such an argument is made, the rule is that

“a constructive denial of counsel occurs when a criminal defendant must

navigate a critical stage of the proceedings against him without the aid of

‘an attorney dedicated to the protection of his client’s rights under our

adversarial system of justice,’” or when counsel “[abandons] the defense of his

client at a critical stage of the . . . proceedings.” Id . at 1229 (citing United States v. Swanson , 943 F.2d 1070, 1075 (9th Cir. 1991))

(emphasis added).

Like the defendant in Childress , Valencia

emphasizes that he received no assistance of counsel, that is, “[i]n effect

Appellant was not represented by counsel at trial.” See 103 F.3d at 1230 . The defendant in Childress also outlined a list of the failures

of his counsel noting that his counsel (1) never investigated the facts, (2)

never discussed the applicable law with him, and (3) never advised him of the

rights he would surrender by pleading guilty.

Id . at 1223. That Valencia

has provided a list of failures does not negate his claim that he received no

assistance of counsel. See id .

Rather, the magnitude of the failures makes his point that he was

constructively denied counsel at each critical stage of the proceeding below.

Moreover, presuming prejudice in this case is in no

way, as the majority suggests, inconsistent with Strickland as adopted

by the Texas Supreme Court in In re M.S . 115 S.W.3d at 544 . Again, the United States Supreme Court, in Strickland ,

expressly acknowledged that when an accused has been actually or constructively

denied the assistance of counsel, prejudice to his defense is “ legally presumed .” 466 U.S. at 692, 104 S. Ct. at 2067 (emphasis

added). Not only is the legal

presumption of prejudice in this case consistent with In re M.S. , it is consistent with common sense. The actual or constructive denial of counsel

in and of itself undermines confidence in the outcome of a trial proceeding

because the right to counsel has been denied.

Only if a defendant has received some meaningful assistance of counsel

is a prejudice inquiry necessary.

In the case before us, Valencia’s trial counsel, in

his new trial motion, affirmatively represented to the trial court that on the

date of trial, Valencia was “within walking distance of the courtroom” and his

“oral motion for continuance to allow [Valencia] to be brought over from the Harris

County Jail should have been granted.”

Yet, trial counsel’s only effort to secure Valencia’s presence at a

trial, in which his constitutionally protected parental rights were at stake,

was to orally state to the trial court, “To bring to your attention, he is out

of Harris County and in county jail.

We’re asking for a couple of weeks.”

Although trial counsel, as revealed in his new trial

motion, knew that Valencia was in the Harris County Jail, he did not clearly

articulate this fact to the trial court on the trial date and did nothing to

timely and properly secure Valencia’s presence in court by either obtaining a

bench warrant prior to trial or filing a written and verified motion for

continuance. See Tex. R. Civ. P. 251. In fact, it is apparent from the face of the

record that trial counsel did not even know how to secure Valencia’s presence

for trial. By failing to secure

Valencia’s presence at trial, trial counsel completely deprived Valencia of his

right to testify on his own behalf and to assist trial counsel in presenting a

defense, including the ability to assist trial counsel in cross-examining

Washington, the only witness presented against Valencia.

Moreover, by idly sitting by and doing nothing, Valencia’s

trial counsel essentially relieved DFPS of meeting its burden of proof. This is revealed in the sparse five and

one-half page, double spaced, trial transcript.

When the trial court, sua sponte, took judicial notice of the contents

of DFPS’s file, trial counsel failed to object or to do anything to require

that DFPS present properly admissible evidence to establish its allegation that

Valencia had endangered the child. When

DFPS offered into evidence Petitioner’s Exhibit No. 1, the packet of copies of

purported criminal records, trial counsel, again, failed to object. The only properly certified copies concern

the aggravated robbery case, which had been dismissed, and the misdemeanor

assault case, which was still pending at the time the trial court entered its

decree. See Tex. Gov’t Code Ann. § 406.013 (Vernon 2005) ; Tex. R. Evid . 901(7), 902(4). When counsel for DFPS stated, without any

authenticating testimony, “These are photos of [Valencia’s] assault,” trial

counsel apparently could not articulate a proper objection, but rather made the

nonsensical objection “goes to the criminal side.” And when given the opportunity to

cross-examine Washington, the only witness that DFPS presented at trial, trial

counsel responded, “No questions, judge.”

Trial counsel’s post-trial representation was also

essentially inert. Although he went

through the formality of filing his Request for Findings of Fact and

Conclusions of Law, he failed to timely file a notice of past due findings of

fact after the trial court failed to enter any findings. See Tex.

R. Civ. P. 297. In his Motion for

New Trial and Statement of Appellate Points, trial counsel made a number of

inexplicable contentions. For example,

he contended that the trial court erred in denying his “oral motion for

continuance” and the trial court, apparently sua sponte, “could have ordered

all parties to mediation.”

Although trial counsel contended that the evidence

presented at trial is legally and factually insufficient to support the trial

court’s finding that termination of Valencia’s parental rights is in the

child’s best interest, he failed, after a trial that lasted only a few minutes,

to challenge the legal and factual sufficiency of the evidence to support the

trial court’s findings that Valencia had actually “endangered” the child. This is truly remarkable given that the

record conclusively shows that Valencia was not determined to be the child’s

father until after he had submitted to paternity testing and he had never had

possession of the child. It is all the

more remarkable given that the only “evidence” offered by DFPS on the issue of

endangerment consisted of copies, mostly uncertified, of criminal records

purportedly showing that Valencia, (1) prior to the child’s birth, had been

convicted of several misdemeanor and state jail felony offenses; (2) at the

time of the child’s birth, was in jail pending trial for the offense of

aggravated robbery, a case which was later dismissed; and (3) after the child’s

birth, stood accused of the misdemeanor offense of assaulting Flores, who had

already agreed to relinquish her parental rights.

DFPS, citing Strickland ’s two-prong analysis

for analyzing deficient-performance claims, argues that because there is no

evidence in the record to show trial counsel’s strategy or other reasoning

behind his acts and omissions, there is no basis upon which to conclude that

his representation was ineffective.

However, as noted above, the United States Supreme Court, in Strickland ,

expressly explained that the “[a]ctual or constructive denial of the assistance

of counsel altogether is legally presumed

to result in prejudice.” 466 U.S. at

692, 104 S. Ct. at 2067 (emphasis added).

Here, the sparse record amply demonstrates that trial counsel wholly

failed to provide Valencia any meaningful assistance of counsel. In fact, the record clearly reveals that

trial counsel did not know how to secure his client’s presence in court, made

no effort to provide a defense, did not ask a single question of DFPS’s only

witness, did not know how to preserve error, effectively acquiesced in the

termination of Valencia’s parental rights based upon scant and mostly

inadmissible evidence, and, post-trial, did not include in the statement of

appellate points a challenge to the legal and factual sufficiency of the scant

evidence on the issue of endangerment.

Again, “the right to the assistance of counsel . . .

envisions counsel’s playing a role that is critical to the ability of the

adversarial system to produce just results.”

Strickland , 466 U.S. at 685 , 104 S. Ct. at 2063 . The right to counsel, thus, “encompasses the

right to have an advocate for one’s cause.”

Childress , 103 F.3d at 1228 .

No prejudice inquiry is necessary “in cases of actual or constructive

denial of counsel,” “when a defendant can establish that counsel was not merely

incompetent but inert[.]” Id . Constructive denial, such as when counsel

“entirely fails to subject the prosecution’s case to meaningful adversarial

testing,” is the difference between “shoddy representation” and “no

representation at all.” Id . at 1228–29;

see also Cronic , 466 U.S. at 659 , 104 S. Ct. at 2047 ; Gochicoa v.

Johnson , 238 F.3d 278 , 284–85 (5th Cir. 2000); Jackson v. Johnson ,

150 F.3d 520, 525 (5th Cir. 1998).

Thus, the Fifth Circuit presumed prejudice in Childress where the court-appointed trial

lawyer “never investigated the facts, never discussed the applicable law with

[the defendant], and never advised him of the rights he would surrender by

pleading guilty.” 103 F.3d at 1223 . The court presumed prejudice because it found

that trial counsel took a “potted plant approach” to representing Childress;

that is, “ counsel’s role was essentially passive .” Id . at 1226 (emphasis added).

The Fifth Circuit, sitting en banc, also presumed

prejudice in the sleeping-lawyer case where defense counsel repeatedly slept in

trial while evidence was being introduced against the defendant. Burdine , 262 F.3d at 338 . The State of Texas argued that “because

Burdine [could not] demonstrate precisely when [his lawyer] slept during his

trial, he [could] not prove that [the lawyer] slept during critical stages of [the]

proceeding.” Id . at 347. The court

rejected this argument, noting that “the State asks more of Burdine than the

Supreme Court or this Court has ever asked of a defendant attempting to show

the absence of counsel during a critical stage of trial.” Id . A defendant is “ not required . . . to

explain how having counsel would have altered the outcome of his specific case .” Id .

(emphasis added). Rather, courts are to

look to whether “the substantial rights of a defendant may be affected” during

that type of proceeding. Id .

Thus, once the court accepted the fact that Burdine’s counsel slept

“during portions of [his] trial on the merits, in particular during the guilt

innocence phase when the State’s solo prosecuting attorney was questioning

witnesses and presenting evidence, there [was] no need to attempt to further

scrutinize the record.” Id . at 349. As noted by the court:

Unconscious counsel equates to

no counsel at all. Unconscious counsel

does not analyze, object, listen or in any way exercise judgment on behalf of a

client. . . . When we have no basis for

assuming that counsel exercised judgment on behalf of his client during

critical stages of trial, we have insufficient basis for trusting the fairness

of that trial and consequently must presume prejudice .

Id . (emphasis added).

Likewise, in the case before us, there is simply no basis for assuming that

trial counsel exercised judgment on behalf of Valencia.

Three of our colleagues, concurring in the en banc opinion, contend that the panel has erred in concluding that Valencia was

constructively denied his right to counsel and presuming prejudice “on the

facts of this case.” They assert that

rather than relying upon the Supreme Court’s express affirmation in Strickland

that the “ [a]ctual or constructive

denial of counsel is legally presumed to result in prejudice ,” the panel should

have evaluated the case as one concerning deficient performance and

prejudice. In support of their position,

our colleagues rely upon Bell . Their reliance is misplaced.

In Bell , the Supreme Court

reiterated that a “trial would be presumptively

unfair” if defense “counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing.” 535

U.S. at 695–96, 122 S. Ct. at 1851 . It

again explained that “if counsel entirely

fails to subject the prosecution’s case to meaningful adversarial testing,”

prejudice to the defendant is presumed. Id . at 697, 122 S. Ct. at 1851 (emphasis

added). The Court emphasized that the

argument of the defendant in Bell was

“ not that his counsel failed to

oppose the prosecution throughout” the trial, but that he failed to do so only

at two “specific points” in the “sentencing” phase of trial. Id .

(emphasis added). Thus, it concluded

that the two “aspects of counsel’s performance” in the sentencing phase that

were “challenged by respondent—the failure to adduce

mitigating evidence and the waiver of closing argument—are plainly of the same

ilk as other specific attorney errors we have held subject to Strickland ’s performance and prejudice

components.” Id . at 697–98, 122 S. Ct. at 1851–52. Accordingly, prejudice to the defense was not

to be legally presumed. Id .

In fact, as emphasized by the Supreme Court, defense counsel

in Bell did subject the prosecution’s

case to meaningful adversarial testing.

He sought to prove that the defendant was not

guilty of capital murder by reason of insanity and presented the expert

testimony of (1) a clinical psychologist that the defendant suffered from

substance abuse and posttraumatic stress disorders related to his military

service in Vietnam and (2) a neuropharmacologist about the defendant’s history

of illicit drug use, which included consuming “rather horrific” quantities and

“caused chronic amphetamine psychosis, hallucinations, and ongoing paranoia,

which affected [the defendant’s] mental capacity and ability to obey the law. Id . at 690, 122 S. Ct. at

1848 . Defense

counsel also presented the testimony of the defendant’s mother, “who spoke of

her son coming back from Vietnam in 1969 a changed person, his honorable

discharge from service, his graduation with honors from college, and the deaths

of his father and fiancée . . . .” Id .

Counsel was further “able to elicit through other testimony that [the

defendant] had expressed remorse for the killings.” Id .

In his opening

statement to the jury in the punishment phase of the trial, defense counsel “called

the jury’s attention to the mitigating evidence already before them.” Id .

at 691, 122 S. Ct. at 1848 . He suggested

that the defendant was “under the influence of extreme mental disturbance or

duress, that he was an addict whose drug and other problems stemmed from the

stress of his military service, and that he felt remorse.” Id . Counsel “urged the jury that there was a good

reason for preserving his client’s life if one looked at ‘the whole man’” and

“asked for mercy.” Id . Counsel also brought out

that his client had been awarded the Bronze Star in Vietnam and successfully

objected to the State’s proffer of photographs of the victims’ decomposing

bodies. Id . Defense counsel then

strategically waived his final argument to prevent the lead prosecutor, “an

extremely effective advocate, from arguing in rebuttal.” Id .

at 692, 122 S. Ct. at 1848 .

Here, in stark contrast, the record clearly reveals that Valencia’s trial

counsel entirely failed to subject DFPS’s case to meaningful adversarial

testing at each critical stage of the proceeding below. He did not know how to secure his client’s

presence in court, made no effort to provide a defense at all, did not call any

witnesses, did not ask a single question of DFPS’s only witness, did not know

how to preserve error, and effectively acquiesced in the termination of

Valencia’s parental rights based upon scant and mostly inadmissible evidence in

a trial that lasted only a few minutes.

Moreover, Valencia, unlike the defendant in Bell , specifically argues that because his trial counsel’s

performance “did not simply consist of errors, omissions or poor trial

strategy” and “was so patently deficient,” Valencia “was denied any meaningful

assistance of counsel altogether” and prejudice to his defense must be

“presumed.” [20] Valencia’s point is that trial counsel’s

wholesale nonperformance before, after, and throughout the entire exceedingly

brief proceeding is not of the same “ilk” as the two errors made by the otherwise

active trial counsel in Bell but

makes it “abundantly clear that [trial counsel] failed to render any meaningful

assistance.” His complaint is not one of

“shoddy representation,” but that he essentially had “no representation at

all.” See Childress , 103 F.3d at 1228 .

A review of the entire record before us compels a

holding that Valencia received no meaningful assistance of counsel and was

denied an advocate for his cause.

There can be no reasonable trial strategy that would call for not

securing the presence of one’s client at trial and then offering no defense for

that client when he is faced with termination of his fundamental parental

rights based upon scant and mostly inadmissible evidence. See In re J.O.A. , 283 S.W.3d at

342 (concluding that parent has fundamental liberty interest in maintaining

custody and control of his child). During

trial, trial counsel idly sat by, doing nothing to ensure Valencia a fair

hearing, and he essentially allowed DFPS to terminate Valencia’s parental

rights in a summary proceeding without having to produce legally sufficient,

clear and convincing evidence to support its case. Post-trial, he failed to include in the

statement of appellate points a challenge the legal and factual sufficiency of

the trial court’s finding on endangerment, despite the scant evidence DFPS

adduced on this issue.

The Supreme Court has emphasized that the right to the

effective assistance of counsel “is thus the right of the accused to require

the prosecution’s case to survive the crucible of meaningful adversarial

testing.” Cronic , 466 U.S. at 656 , 104 S. Ct. at 2045 . The Supreme Court went on to say, “if counsel

entirely fails to subject the prosecution’s case to meaningful adversarial

testing, then there has been a denial of Sixth Amendment rights that makes the

adversary process itself presumptively unreliable.” Id . at 659, 104 S. Ct. at 2047.

Taken as a whole, trial counsel’s performance can only

be seen as, at best, inert, and, at worst, acquiescing in DFPS’s efforts to

terminate Valencia’s parental rights.

Trial counsel utterly failed to subject DFPS’s case to any meaningful

adversarial testing such that the process itself was presumptively

unreliable. Because Valencia received no

meaningful assistance of counsel and was effectively denied an advocate for his

cause, prejudice to his defense must be presumed as a matter of law. See id .

Simply put, there is nothing in the record before us which demonstrates

that Valencia received the assistance of counsel necessary to justify reliance

on the outcome of the summary proceeding.

Viewed objectively, a contrary conclusion would be unreasonable. [21]

Accordingly, the panel unanimously sustained

Valencia’s first issue. [22]

Legal

Sufficiency

Having sustained his first issue, the panel

appropriately addressed the merits of Valencia’s second issue. See In re J.O.A. , 283 S.W.3d at 339

(addressing legal sufficiency point not preserved in statement of appellant

points as a result of ineffective assistance of counsel). In his second issue, Valencia argues that the

evidence is legally and factually insufficient to support termination of his

parental rights under section 161.001(1)(E) because there is no evidence in the

record that he “engaged in conduct or knowingly placed the child with persons

who engaged in conduct which endanger[ed] the physical or emotional well-being

of the child.” He asserts that “[t]he

record is completely silent as to . . . what acts or omissions [he] committed

which endangered the child.” He notes

that although Heiskill, in her affidavit, testified that Flores and the child

had tested positive for opiates at the child’s birth, nothing in Heiskill’s

testimony implicated Valencia. He also

asserts that the trial court improperly took judicial notice of facts that were

subject to dispute and there is no evidence that the “individual(s) identified

in the criminal records was actually appellant.”

Standard of Review

A parent’s right to “the companionship, care, custody,

and management” of his children is a constitutional interest “far more precious

than any property right.” Santosky v.

Kramer , 455 U.S. 745 , 758–59, 102 S. Ct. 1388, 1397 (1982) (internal

citation omitted). The United States

Supreme Court has emphasized that “the interest of parents in the care,

custody, and control of their children is perhaps the oldest of the fundamental

liberty interests recognized by this Court.”

Troxel v. Granville , 530 U.S. 57, 65 , 120 S. Ct. 2054, 2060

(2000). Likewise, the Texas Supreme Court

has also concluded that “[t]his natural parental right” is “essential,” “a

basic civil right of man,” and “far more precious than property rights.” Holick v. Smith , 685 S.W.2d 18, 20

(Tex. 1985). Consequently,

[T]ermination proceedings should

be strictly scrutinized , and

involuntary termination statutes are strictly

construed in favor of the parent .

Id . (emphasis

added).

Because termination “is complete, final, irrevocable,

and divests for all time that natural right . . . , the evidence in support of

termination must be clear and convincing before a court may involuntarily

terminate a parent’s rights.” Id . (citing Santosky , 455 U.S. at 747–48,

102 S. Ct. at 1391–92; Richardson v. Green , 677 S.W.2d 497, 500 (Tex.

1984)). Clear and convincing evidence is

“the measure or degree of 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.” Tex. Fam. Code Ann. § 101.007 (Vernon 2008); In re J.F.C. , 96 S.W.3d 256,

264 (Tex. 2002). Because the standard of

proof is “clear and convincing,” the Texas Supreme Court has held that the

traditional legal and factual standards of review are inadequate. In re J.F.C. , 96 S.W.3d at 264–66.

Instead, in conducting a legal sufficiency review in a

parental-rights termination case, we must determine whether the evidence,

viewed in the light most favorable to the finding, is such that the fact finder

could reasonably have formed a firm belief or conviction about the truth of the

matter on which DFPS bore the burden of proof.

See id . at 266. In viewing

the evidence in the light most favorable to the judgment, we “must assume that

the fact finder resolved disputed facts in favor of its finding if a reasonable

fact finder could do so,” and we “should disregard all evidence that a

reasonable fact finder could have disbelieved or found to be incredible.” In re J.P.B. , 180 S.W.3d 570, 573

(Tex. 2005) (citing In re J.F.C. , 96 S.W.3d at 266 ).

However, a fact finder may not, from meager

circumstantial evidence, reasonably infer an ultimate fact, none more probable

than another. Hammerly Oaks, Inc. v.

Edwards , 958 S.W.2d 387, 392 (Tex. 1997).

This Court has explained that under the law of evidence, the term

“inference” means

[A] truth or proposition drawn

from another which is supposed or admitted to be true. A process of reasoning by which a fact or

proposition sought to be established is deduced as a logical consequence from

other facts, or a state of facts, already proved.

Marshall Field Stores, Inc. v. Gardiner , 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.]

1993, writ dism’d w.o.j.) (quoting Black’s

Law Dictionary 700 (5th ed. 1979)).

Thus, to “infer” a fact, one “must be able to deduce that fact as a

logical consequence from other proven facts.” Id .

In other words, there must be a logical and rational connection between

the facts in evidence and the fact to be inferred. United States v. Michelena‑Orovio ,

702 F.2d 496, 504 (5th Cir.), aff’d on reh’g , 719 F.2d 738 (5th Cir.

1983) (en banc). With regard to the

sufficiency of evidence in circumstantial evidence cases, one inference cannot

be based upon another inference to reach a conclusion. Marathon Corp. v. Pitzner , 106 S.W.3d 724,

728 (Tex. 2003). Such stacking is not

considered evidence. Id .

In proceedings to terminate the parent-child

relationship brought under section 161.001, DFPS must establish, by clear and

convincing evidence, one or more of the acts or omissions enumerated under

subsection (1) of section 161.001 and that termination is in the best interest

of the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009). Both elements must be established, and

termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex.

Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987).

Endangerment

To terminate the parent-child relationship on the

ground that a parent has “knowingly engaged in criminal conduct,” DFPS must

prove that the criminal conduct has resulted in the parent’s:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to

care for the child for not less than two years from the date of [DFPS’s]

filing [of its] petition.

Tex. Fam. Code Ann . § 161.001(1)(Q) (Vernon Supp. 2009) (emphasis added). Here, however, DFPS could not ask the trial

court to terminate Valencia’s parental rights on the ground that he had

“knowingly engaged in criminal conduct” because the most serious criminal offense

of which Valencia had been convicted, more than two years prior to the child’s

birth, was a state jail felony offense.

The maximum punishment for a state jail felony is confinement in a state

jail for two years. Tex. Penal Code Ann. § 12.35(a) (Vernon

Supp. 2009).

Thus, based solely upon

Valencia’s “criminal history,” which consisted of several misdemeanor and state

jail felony offenses, DFPS asserted, and the trial court found, that Valencia

had “engaged in conduct or knowingly placed the child with persons who engaged

in conduct which endanger[ed] the physical or emotional well-being of

the child.” See Tex. Fam. Code Ann.

§ 161.001(1)(E) (Vernon Supp. 2009) (emphasis added). In support of this finding, DFPS relied on

Petitioner’s Exhibit No. 1, the packet of copies, only two of which are

certified, of criminal complaints and judgments and sentences purportedly made

and entered against Valencia. DFPS

offered no other testimony from its only witness, Washington, or any other

evidence upon which the trial court could have reasonably formed a firm belief

or conviction that Valencia had actually endangered the child. In sum, the only evidence offered to show

that Valencia had endangered the child was that (1) prior to the child’s birth,

he had been convicted of several misdemeanor and state jail felony offenses;

(2) at the time of the child’s birth, he was in jail pending trial for the

offense of aggravated robbery, a case which was later dismissed; and (3) after

the child’s birth, he stood accused by information of the misdemeanor offense

of assaulting Flores, who had already agreed to relinquish her parental rights.

Setting aside the statutory requirements of section

161.001(1)(Q) and disregarding the fact that the uncertified criminal history

records were inadmissible, [23]

intentional criminal activity that exposes a parent to incarceration may be

relevant to establish a course of conduct endangering the emotional and

physical well being of the parent’s children.

See Allred v. Harris County Child Welfare Unit , 615 S.W.2d

803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (evidence of

father’s commission of numerous robberies was relevant). However, to support the trial court’s

finding, the record must contain clear and convincing legally sufficient

evidence that Valencia had engaged in “endangering” conduct. “Endanger” means to “expose to loss or injury”

or to “jeopardize”; it consists of conduct that is “more than a threat of

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

environment”; although, a child need not suffer actual physical injury to

constitute endangerment. Boyd ,

727 S.W.2d at 533 . Endangerment can

occur through both the acts and omissions of a parent. See In re R.D. , 955 S.W.2d 364, 367

(Tex. App.—San Antonio 1997, pet. denied).

Evidence of a parent’s past conduct, including a

criminal history, may be relevant and admissible if it shows a conscious course

of conduct and instability occurring both “before and after” a child’s

birth. Avery v. State , 963 S.W.2d

550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ). Imprisonment is a “factor to be considered .

. . on the issue of endangerment.” Boyd , 727 S.W.2d at 533 . However, the Texas Supreme Court has

explained that

Mere imprisonment will not, standing

alone , constitute engaging in conduct which endangers the emotional or

physical well-being of a child. . . . [I]f the evidence, including the

imprisonment, shows a course of conduct which has the effect of endangering the

physical or emotional well-being of the child, a finding under [section

160.001(1)(E)] [24] is

supportable.

Id . at 533–34

(emphasis added). For example, a trial

court would not err in admitting evidence of a parent’s “lengthy criminal

record” involving narcotics abuse in a case in which the parent had “not

altered her behavior.” Avery , 963

S.W.2d at 553 . However, the termination

of parental rights should not be used as punishment in addition to imprisonment

for the commission of criminal offenses.

In re C.T.E. , 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.]

2002, pet. denied).

In Boyd , the trial court entered a decree

terminating Boyd’s parental rights based on a finding that he had engaged in

conduct or knowingly placed his child with persons who had engaged in conduct

that endangered the child. Boyd ,

727 S.W.2d at 532 . The supreme court

expressly disapproved of the court of appeals’ definition of “danger” and its

holding that danger cannot be inferred from parental misconduct. Id . at 533. The gist of Boyd is that to constitute

endangerment, it need not be shown that a parent’s conduct was directed at the

child or that the child actually suffered an injury. Id .

The evidence presented at trial showed that Boyd had

been arrested and jailed for the then first degree felony offense of burglary

two days before the child’s birth; after Boyd was paroled, he lived with the

child for five months; he intermittently held three different jobs while out on

parole; and, within four months, Boyd was again convicted of another burglary

offense and sentenced to five years in prison.

Id . At the time the child

was taken by DFPS, he had emotional problems, which included sleep disorders,

dietary issues, bed-wetting problems, and temper tantrums. Id .

The supreme court did not hold, as asserted by the majority, that all

“[i]ntentional criminal activity that exposes a parent to incarceration is

conduct that endangers the physical and emotional well-being of a child.” Nor did the supreme court, as asserted by

DFPS, hold that the evidence presented was legally sufficient to support the

trial court’s finding that Boyd had endangered the child; rather, it remanded

the case to the court of appeals to consider the issue. Id . at 534. However, the court of appeals did not issue a

new opinion on remand.

Here, Washington did testify that Valencia had a

“repeated criminal history,” but DFPS offered no evidence to establish that

Valencia’s incarceration for misdemeanors and state jail felonies, none of

which involved narcotics, and all of which resulted from offenses committed

prior to the child’s birth, had the effect of endangering the child. Unlike Boyd, Valencia was not, after the

birth of his child, convicted of a first degree felony and sentenced to five

years in prison. See id. at

533 . In fact, Valencia had, at the time

of trial, last been convicted of a state jail felony offense on September 23,

2004, more than two years prior to the child’s birth. Washington, in response to a leading

question, merely stated her conclusion that because he had a “repeated criminal

history,” Valencia had engaged in conduct that endangered the physical and

emotional well-being of the child. DFPS

did not adduce any evidence to support Washington’s conclusion or explain how

Valencia’s criminal history had actually endangered the child.

Again, such evidence of incarceration alone will not

support a reasonable inference of actual endangerment, i.e., an inference

“deduced as a logical consequence from other facts, or a state of facts,

already proved.” See Marshall Field ,

859 S.W.2d at 400 (quoting Black’s Law

Dictionary 700 (5th ed. 1979)); see also Michelena‑Orovio ,

702 F.2d at 504 . The panel has not, as

asserted by the majority, “discount[ed]” Boyd . Boyd clearly requires something more

than “mere imprisonment” to establish, by clear and convincing evidence, a

course of conduct that has the effect of endangering the physical or emotional

well-being of a child in violation of section 160.001(1)(E). 727 S.W.2d at 533–34. The majority’s contrary reading of Boyd is also inconsistent with the Texas

Legislature’s expressly stated requirements for termination of parental rights

for “criminal conduct” listed in Family Code section 161.001(1)(Q).

It is true that Valencia was in the Harris County Jail

at the time of the child’s birth.

However, the case for which he was being held was, as conceded by DFPS,

dismissed. He was not sentenced to

prison as was Boyd. Also, Petitioner’s

Exhibit No. 1 does show that Valencia, on the date of trial, stood accused by

information of the misdemeanor offense of assaulting Flores. However, DFPS did not present any testimony to

prove that Valencia had assaulted Flores, and nothing in the record indicates

that, as of the date the trial court entered its decree, he had been convicted

of the offense. [25] It is hornbook law that a criminal

information cannot be considered as evidence that an accused has committed a

criminal offense. Ex parte Dumas ,

110 Tex. Crim. 1, 2 , 7 S.W.2d 90 , 90 (1928); see also United States v. Cox ,

536 F.2d 65, 72 (5th Cir. 1976) (“[i]t is hornbook law that indictments cannot

be considered as evidence”); McLean v. State , No. 01‑08‑00466‑CR,

2010 WL 335611, at *5 (Tex. App.—Houston [1st Dist.] Jan. 28, 2010, no pet.)

(stating jury charge contained appropriate instruction that “criminal

information is not evidence of guilt”); Gonzales v. State , 977 S.W.2d

189, 190 (Tex. App.—Austin 1998, pet. ref’d) (“[a]n indictment or information

is not evidence”). In regard to the

reference of DFPS’s counsel to “photos of his assault,” the record shows that

no photographs were marked as exhibits, authenticated through witness

testimony, or admitted into evidence. Only

Petitioner’s Exhibit No. 1 was admitted into evidence, and the record contains

no such photographs.

The majority asserts that in

the panel’s view “evidence of an assault [loses] all legal significance” when

the “parental[-rights] termination case comes ahead of the criminal trial” and

the panel would require DFPS to prove that Valencia had been “convicted” of the

misdemeanor offense of assault before considering any such assault in

determining whether Valencia had endangered the child. However, we simply note the well-established

law that a copy of a

misdemeanor information, even if certified, does not constitute competent

evidence of guilt. DFPS failed to

produce competent evidence, either through witness testimony or a record of

conviction, that Valencia had committed the misdemeanor offense of assault.

DFPS, disregarding the statutory requirements of

section 161.001(1)(Q), argues that a history of incarceration for criminal

offenses alone can support a finding of endangerment under 161.001(1)(E). In support of its argument, DFPS relies on In

re C.H. , 89 S.W.3d 17, 28 (Tex. 2002), In re M.R. , 243 S.W.3d 807,

819 (Tex. App.—Fort Worth 2007, no pet.), In re J.T.G. , 121 S.W.3d 117 ,

126–27 (Tex. App.—Fort Worth 2003, no pet.), In re U.P. , 105 S.W.3d 222,

236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), In re T.D.C. , 91

S.W.3d 865, 873, 880 (Tex. App.—Fort Worth 2002, pet. denied), and In re

S.D. , 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). However, in cases in which such a criminal

history is relied upon to support a finding of endangerment, including the

cases relied upon by DFPS, there is always, consistent with Boyd , other

evidence presented that puts the criminal history in the context of a pattern

of endangering conduct. See In re

C.H. , 89 S.W.3d at 21 (parent testified about extensive criminal history,

and psychologist testified ten year prison sentence would impede parent’s

ability to parent); Robinson v. Tex. Dep’t of Protective and Regulatory

Servs. , 89 S.W.3d 679 , 682–83 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(criminal history plus parent’s testimony that she had long history of

narcotics abuse before and after birth of children and father’s testimony that

children were afraid of mother); Allred , 615 S.W.2d at 805–06 (criminal

history plus evidence that father beat mother after he learned she was pregnant

and threatened to throw mother down stairs to cause miscarriage); In re M.R. ,

243 S.W.3d at 819 (criminal history plus testimony that parent used narcotics

in front of child and parent’s incarceration affected ability to take care of

child); In re J.T.G. , 121

S.W.3d at 131, 133 (criminal history plus evidence of parent’s violence in

front of child, abuse as child, and abuse of narcotics and alcohol); In re

U.P. , 105 S.W.3d at 231 (criminal history plus expert testimony about

impact on child and testimony about parent’s use of narcotics); In re S.F. ,

32 S.W.3d 318, 321 (Tex. App.—San Antonio 2000, no pet.) (extensive criminal

history plus caseworker’s testimony about parent’s marijuana use and discipline

problems while incarcerated and the effect this had on child); In re S.D. ,

980 S.W.2d at 763 (criminal history plus testimony that parent abused narcotics

and alcohol and had inability to support family). [26]

These cases illustrate that the mere fact that

Valencia had a criminal history prior to the birth of the child does not

constitute clear and convincing, legally sufficient evidence, on its own, to

support a finding under section 161.001(1)(E).

Again, Boyd is clear that “ if the evidence, including the

imprisonment , shows a course of conduct which has the effect of endangering

the physical or emotional well-being of the child, a finding under [section

160.001(1)(E)] is supportable.” 727

S.W.2d at 534 (emphasis added).

For example, in In re J.N.R. , this Court held

that the evidence was legally sufficient to support the trial court’s finding

that a father had endangered his child, when, while on parole and participating

in a DFPS family service plan, the father, “after knowing his parental rights

were in jeopardy, . . . continued to engage in criminal activity that resulted

in his being jailed.” 982 S.W.2d 137 ,

142 (Tex. App.—Houston [1st Dist.] 1998, no pet.), overruled on other

grounds , In re C.H. , 89 S.W.3d 17 (Tex. 2002). After the father was released from prison and

placed on parole, he became an active parent in his child’s life for five

months. Id . at 140. The father, working with DFPS, agreed to and

signed a family service plan, which “required him to agree to stay out of jail,

participate in his parole tasks, develop his relationship with [the child], and

maintain his employment.” Id . The father failed to comply with his

agreement when he was arrested on three separate occasions while on

parole. Id . at 142. At the time of his last arrest, he was

outside the area to which he was restricted under the terms of his parole, and

his parole officer testified that he was seeking a revocation of the father’s

parole. Id . Accordingly, we concluded that this evidence

showed that the father, while on parole and after agreeing to the requirements

of the family service plan, “continued to engage in conduct that would endanger

the emotional well-being of [the child].” [27] Id .

In this case, the record shows that DFPS created a

family service plan for Valencia in January 2007 prior to the establishment of

his parentage. As per the plan,

Washington was to play an active role in assessing Valencia’s progress against

the plan. However, there is no evidence

in the record that Valencia ever received a copy of the plan or even agreed to

the plan. [28] Nor is there any evidence that Washington

engaged Valencia in any way regarding the plan.

In fact, the record shows that Washington first met Valencia at a

hearing one year later in January 2008 when Valencia first appeared in the case

and offered to take a paternity test.

Here, unlike in In re J.N.R. , there is no additional evidence

that Valencia’s criminal history constituted a course of endangering conduct.

At trial, DFPS relied solely upon Valencia’s criminal

history of misdemeanor and state jail felony offenses to support the trial

court’s finding that Valencia had actually endangered the child. Now, on appeal, DFPS additionally asserts

that Valencia engaged in endangering conduct through his failure to take “swift

and appropriate actions in support of [the child] during the pendency of the

case or to secure reunification,” “his apathetic attitude,” and “his failure to

take any action to check on the child or initiate visits before or after [he

took the paternity test].” [29] In support of its position, the majority has

seized upon these assertions, which are not supported by the record. However, “[i]t is axiomatic that an

appellate court reviews the actions of a trial court based on the materials

before the trial court at the time it acted.”

Hamm v. Millennium Income Fund, L.L.C. , 178 S.W.3d 256, 272 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) (quoting Methodist Hosps. of Dallas v. Tall , 972 S.W.2d 894, 898 (Tex.

App.—Corpus Christi 1998, no pet.)).

Valencia was in the Harris County Jail in November

2006 at the time the child was born and when DFPS removed the child from

Flores’s care two days later and sued Valencia to terminate the parent-child

relationship. It is clear that

Valencia’s incarceration pending trial on a case which was later dismissed does

not alone constitute endangering conduct.

Valencia had had no contact with the child and, because he was in jail,

he could not take “swift and appropriate actions in support of [the child]” [30]

or appear in court on November 16, 2006, the date of the first adversary

hearing and the date that he was served with DFPS’s petition. He simply had no time to retain counsel

between the time that he was served, while in jail at 8:40 a.m., and the time

of the first adversary hearing at 1:00 p.m.

Neither could he appear and request the appointment of counsel.

In sum, the only evidence offered by DFPS on the issue

of endangerment consisted of copies, mostly uncertified, of criminal records

purportedly showing that Valencia had, (1) prior to the child’s birth, been

convicted of several misdemeanor and state jail felony offenses; (2) at the

time of the child’s birth, was in jail pending trial for the offense of

aggravated robbery, a case which was later dismissed; and (3) after the child’s

birth, stood accused by information of the misdemeanor offense of assaulting

Flores, who had already agreed to relinquish her parental rights. Moreover, the record conclusively establishes

that Valencia had never had possession of the child.

Viewing all of the evidence in the light most

favorable to the trial court’s finding, the trial court could not have

reasonably formed a firm belief or conviction that Valencia had engaged in a

course of conduct that endangered the physical and emotional well-being of the

child. See Tex. Fam. Code Ann . § 161.001(1)(E). Thus, the panel held that the evidence is

legally insufficient to support the trial court’s finding that Valencia, based

on his prior history of incarceration for criminal offenses, actually

endangered the child. See Boyd ,

727 S.W.2d at 531 .

Accordingly, the panel unanimously sustained

Valencia’s second issue.

En Banc Reconsideration

Valencia was constructively denied his statutory right to counsel, and

his parental rights were terminated in a summary proceeding that lasted only a

few minutes. After his court-appointed

trial counsel failed to secure Valencia’s presence in court so that he could

defend himself, trial counsel essentially acquiesced in the termination of

Valencia’s parental rights. The

egregious conduct of counsel and the termination of Valencia’s parental rights

based on legally insufficient evidence shock the conscience and amount to a

gross violation of the Rule of Law.

Accordingly, the panel unanimously reversed that portion of the trial

court’s decree terminating the parent-child relationship between Valencia and

the child and rendered judgment that Valencia’s parental rights were not

terminated. As demonstrated above, the

panel did so thoughtfully and dispassionately, objectively applying the facts

in evidence to the governing law after thoroughly reviewing the record and the

briefs and hearing the oral arguments of the parties. The panel carefully allowed both sides to

thoroughly present their case even through the point of post-submission

briefing and a number of motions for rehearing, and the panel thoroughly

addressed the arguments made.

As noted by the Fifth Circuit, there is nothing “new” about the rule of

presumed prejudice in cases in which the right to counsel has been

constructively denied; it is in fact “well-established.” Burdine , 262 F.3d at 348. Again, the Supreme Court, in Strickland ,

specifically noted:

Actual or

constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.

466 U.S. at 692, 122 S. Ct. at 2067 (emphasis added). Moreover,

in a very recent opinion, the Texas Supreme Court has again emphasized that

[T]he private interests affected in a parental rights

termination case are of the highest order .

As the [United States] Supreme Court has

said, natural parents have a “fundamental liberty interest . . . in

the care, custody, and management of their child [ which] does not evaporate simply because they have not been model

parents or have lost temporary custody of their child to the State .” We

have said that “termination cases implicate fundamental liberties” and that “a

parent’s interest in maintaining custody of and raising his or her child is paramount .”

In re B.G. , No. 07-0960, 2010 WL 2636050, at *4 (Tex. July 2, 2010)

(citing Santosky v. Kramer , 455 U.S.

745 , 753–54, 102 S. Ct. 1388 , 1394–95 (1982), In re B.L.D. , 113 S.W.3d 340 , 351–352 (Tex. 2003), and In re M.S., 115 S.W.3d at 547 )) (emphasis

added). Again, termination of parental

rights proceedings are to be strictly construed. Holick , 685 S.W.2d at 20 .

Yet, the majority, disagreeing with the result compelled

by the governing law, has taken the case from the assigned panel. It has done so improperly.

Violation of

the En Banc Standard

Texas’ intermediate courts of appeals “sit in sections

as authorized by law,” and the “concurrence of a majority of the judges sitting

in a section is necessary to decide a case.”

Tex. Const . Art. V, §

6. Thus, intermediate appellate judges “sit

in panels of three or more, as in the federal circuit courts of appeals.” O’Connor v. First Court of Appeals ,

837 S.W.2d 94, 96 (Tex. 1992).

Unless a court of appeals with more than three justices votes to decide a

case en banc, the case “must be assigned for decision to a panel of the court

consisting of three justices.” Tex. R. App. P. 41.1(a). The panel’s opinion “constitutes the court’s

opinion, and the court must render a judgment in accordance with the panel

opinion.” Id . Thus, the panel acts essentially as a

three-judge court, possessing full authority to decide the cases before it on

behalf of the entire court. Thompson

v. State , 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d) (Jennings, J., concurring in denial of en banc consideration).

Accordingly, in Texas, en banc

consideration of a case is disfavored :

En Banc Consideration Disfavored . En banc consideration of a case is not favored and

should not be ordered unless necessary to secure or maintain uniformity of a

court’s decisions or unless extraordinary circumstances require en banc

consideration.

Tex. R. App P .

41.2(c). This standard has been

described as “exacting,” and the failure to follow it raises “fundamental”

issues. Schindler Elevator Corp. v.

Anderson , 78 S.W.3d 392 , 423–24 (Tex. App.—Houston [14th Dist.] 2001, judgm’t vacated without reference to the

merits due to settlement by the parties , No. 02-0426, 2003 Tex. Lexis 68 (Tex.

May 22, 2003) (mem. op.) (Frost, J. concurring in denial of en banc

consideration) (denial of en banc consideration “compelled by the exacting

standard for en banc review”) (Edelman, J. concurring in denial of en banc

consideration) (failure to follow en banc standard raises “fundamental” issues

of (1) “How important is it to our system of justice that decisions be reached

in an impartial manner, i.e., based on the issues, law, and evidence presented

rather than other considerations?” and (2) “What could suggest a greater lack

of impartiality than to decide a case based on . . . an issue not raised by

either party?”). Thus,

The standard for en banc consideration is not whether

a majority of the en banc court may disagree with all or a part of a panel

opinion. Neither is an assertion that an

issue is “important” sufficient. Rather,

when there is no conflict among panel decisions, the existence of

“extraordinary circumstances” is required before en banc consideration may be

ordered.

Thompson , 89 S.W.3d at 856 (Jennings, J.,

concurring in denial of en banc consideration).

In regard to Federal Rule of Appellate Procedure 35, which concerns en

banc review in the federal courts of appeal, the Fifth Circuit has noted:

A petition for rehearing en banc is an extraordinary procedure that is

intended to bring to the attention of the entire court an error of exceptional

public importance or an opinion that directly conflicts with prior Supreme

Court, Fifth Circuit or state law precedent . . . .

5th Cir. R. 35

I.O.P. Petition for Rehearing En Banc.

Generally, alleged errors regarding the facts of the case, including

sufficiency of the evidence challenges, are “matters for panel rehearing, but

not for rehearing en banc.” Id .

Here, en banc reconsideration

was not at all “necessary” to maintain uniformity with prior First Court of

Appeals decisions. Moreover, the panel’s

holdings in regard to the particularly egregious circumstances presented in

this case do not in any way amount to an “extraordinary circumstance” which

“requires” en banc consideration. The

simple fact is that the majority does not like the “well-established” rule of

presumed prejudice and the result compelled by the governing law. As noted above, the “obvious problem” with such

“results-oriented judging” is that “it produces bad results because it guts the

rule of law.” [31] When a court, even to reach what it believes

to be a more desirable result in a particular case, fails to perform, dispassionately

and impartially, its solemn duty to ensure due process of law, the Rule of Law

is violated, and, on that rule, society can no longer depend.

The Majority’s Errors

Taking upon itself the role of advocate, the majority has considered as

fact what DFPS has merely asserted in its briefing. Appellant courts are supposed to be bound by

the record containing the evidence that was before the trial court. See Hamm , 178

S.W.3d at 272 . However, as revealed by the trial

transcript above, much of what is asserted by DFPS and the majority as fact is either

objectively not true or not supported in the record. The majority proceeds to decide the case en

banc, conditionally affirming the trial court’s judgment. It offers a post-decision abatement, requested

by neither party, and it fails to adequately address the actual arguments made

by the parties and the pertinent controlling authorities. See Tex. R. App. P. 47.1.

Taking upon itself the role of policy maker, the

majority, in derogation of the “well-established” governing law, creates new

law. It, on its own initiative, suggests

to Valencia that he request an abatement for a hearing on whether his trial

counsel’s deficient performance harmed him.

Again, neither party has asked for such an abatement to be made after

the panel has already decided the case and the majority has conditionally done

so. It is interesting to note that in

criminal cases, this Court, also in an en banc opinion, has specifically precluded

criminal defendants from requesting an abatement to restart the appellate

timetables to file new trial motions when trial courts untimely appoint appellate

counsel after new trial deadlines have expired.

See Benson v. State , 224 S.W.3d 485, 488 (Tex. App.—Houston [1st Dist.]

2007, no pet.), overruling , Jack v. State , 64 S.W.3d 694 (Tex.

App.—Houston [1st Dist.] 2002, pet. dism’d).

More importantly, Valencia simply does not need

an abatement to prove up in the trial court the prejudice to his defense that

he has already established in this Court as a matter of law. This presents Valencia with no new “opportunity.” Rather, in effect, such an abatement would

give DFPS a “do-over” to put in the record what it failed to establish when it

tried the case.

In support of their conditional affirmance and “abatement”

suggestion, the majority relies on In re J.O.A. and In re M.S. Neither case supports the majority’s

position. In neither case did the Texas

Supreme Court abate or remand the parent’s ineffective assistance of counsel

claim to the trial court for a hearing. In

In re J.O.A. , the supreme court, after disagreeing with the court of

appeals’ holding that the evidence was legally insufficient to support

termination of a father’s parental rights, noted that the court of appeals had

also held that the evidence was factually insufficient to support termination. 283 S.W.3d at 347 . Accordingly, the supreme court “remand[ed]

the cause to the trial court for a new trial.”

Id . In In re M.S. ,

after holding that a trial counsel’s failure to preserve a factual sufficiency

challenge in a termination of parental rights case “may constitute ineffective

assistance of counsel,” the supreme court remanded the case to the court of

appeals to “determine whether counsel’s failure to preserve the factual

sufficiency issue was not objectively reasonable, and whether this error

deprived [the mother] of a fair trial.”

115 S.W.3d at 550 .

Moreover, the majority mischaracterizes what a defendant must actually establish

to meet the second prong of Strickland . As expressly explained by the United States

Supreme Court in Strickland , a

defendant need not, as the majority asserts, show that the outcome of his trial

“would have been different had counsel provided him with a good defense” or the

errors of counsel determined the outcome of his case. He need not even “show that counsel’s deficient

conduct more likely than not altered the outcome in the case.” Strickland ,

466 U.S. at 693 , 104 S. Ct. at 2068 . Rather,

he must simply show a “ reasonable

probability ” that the outcome of the proceeding would have been different,

i.e., one sufficient to undermine confidence in the outcome. Id .

at 694, 104 S. Ct. at 2068. Again,

The result of a proceeding can

be rendered unreliable, and hence the proceeding itself unfair, even

if the errors of counsel cannot be shown by a preponderance of the evidence to

have determined the outcome .

Id . (emphasis added).

Thus, the majority’s bizarre and awkward abatement procedure in not only

unnecessary, it is actually pointless.

In regard to the legal sufficiency of the evidence, to the

extent that the majority opinion can be read to hold that evidence of

Valencia’s history of misdemeanor and state jail felony convictions and the

fact that he stood accused by information of the misdemeanor assault of Flores

is legally sufficient to support the trial court’s finding of endangerment, the

majority mischaracterizes the Texas Supreme Court’s holding in Boyd . Also, the majority’s conclusion is not

consistent with a strict construction of the statute in favor of the

parent. See Holick , 685

S.W.2d at 20 . Moreover, the conclusion

is not only inconsistent with well-established law, it renders Family Code

section 161.001(1)(Q) meaningless. If

allowed to stand, the majority’s opinion will subject literally thousands of similarly

situated parents, male and female, in the Houston area to termination of their

parental rights as a post-conviction punishment. Under the majority’s en banc opinion, a

mother with a criminal history of misdemeanor and state jail felony convictions

similar to Valencia’s could have her parental rights terminated if she is ever

accused of the misdemeanor offense of assault by slapping another person with

her hand. This is not the law as

intended by the Texas Legislature.

Simply put, the majority has not only taken control of the case from the

assigned panel in violation of the en banc standard, it has, in an en banc

opinion, committed several errors of such importance to the state’s

jurisprudence that they should be corrected.

See Tex. Gov’t Code Ann . § 22.001(a)(6) (Vernon 2004).

Conclusion

In sum, the majority, in disregard of the clearly articulated standard

for en banc consideration, has taken control of the case from a unanimous panel

that had impartially and dispassionately decided the issues presented to it

based upon the facts in the record and the “well-established” governing

law. In doing so, and in failing in its

duties to ensure due process of law and to correct the erroneous fact finding

of the trial court, the majority not only excuses the behavior of Valencia’s

trial counsel and the errors of the trial court, it actually encourages and

promotes them. Thus, the majority, in

its en banc opinion, “encourage[s] methods of decision making that make failure

even more likely and then inevitable.” [32]

In accord with the governing law, I would reverse that

portion of the trial court’s judgment terminating Valencia’s parental rights to

the child and render judgment that his parental rights are not terminated.

The majority’s opposition to the governing law is palpable,

its errors are profound, and its action in taking control of this case is

simply breathtaking.

Terry

Jennings

Justice

Justice Bland, joined by Chief

Justice Radack, and by Justices Alcala, Hanks, and Massengale, for the en banc

court.

Justice Jennings, dissenting, joined by Justice Higley.

Justice Keyes, concurring in

part and dissenting in part.

Justice Sharp, dissenting, in

an opinion to follow.

Justice Massengale,

concurring, joined by Justices Alcala and Hanks.

[1]

Originalism: A Quarter-Century of Debate 26 (Steven G. Calabresi ed. 2007) [hereinafter Originalism ].

[2] Originalism

at 26–27.

[3] Id . at 27.

[4] Magna

Carta , 1215, c. 39.

[5]

In

contrast to such restraint, the term “judicial activism” has been defined as a

judge “deciding a case on the basis of his [or her] own (usually moral)

preferences rather than the governing law.”

American Conservatism: An

Encyclopedia 460 (Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson eds.

2006).

[6]

Dietrich Dörner ,

The Logic of Failure 10 (Ritz

& Robert Kimber trans., Metropolitan Books 1996).

[7] See Tex. Fam. Code

Ann . § 161.001(1)(E)

(Vernon Supp. 2009).

[8]

See Valencia

v. Tex. Dep’t of Family and Protective Servs. , No. 01-08-00345-CV, 2010 WL 1240988 , at *9

(Tex. App.—Houston [1st Dist.] Mar. 25, 2010, no pet. h.).

[9] DFPS

also petitioned for conservatorship of the child, and the trial court, in its

decree terminating Valencia’s parental rights, found that appointment of a

parent as managing conservator of the child would not be in the best interest

of the child because the appointment “would significantly impair the child’s

physical health or emotional development.”

See Tex. Fam. Code. Ann .

§ 153.131 (Vernon 2008). Although Valencia, in the prayer of his

brief, asks this Court to “reverse the appointment of DFPS as [the child’s]

sole managing conservator,” he did not assign a separate issue for our review

or provide briefing regarding conservatorship.

See Tex. R. App. P. 38.1(f), (i).

Because Valencia does not separately challenge the trial court’s order

regarding conservatorship, the panel did not disturb that portion of the trial

court’s decree. See In re

J.A.J. , 243 S.W.3d 611, 617 (Tex. 2007) (holding that, because different

evidentiary standards apply, parent must separately challenge termination of

parental rights and appointment of conservator when DFPS seeks conservatorship

under Texas Family Code section 153.131).

[10]

Although

the trial court overruled the objection “goes to the criminal side,” no

photographs were marked as exhibits or actually authenticated through the

testimony of a witness. Only

Petitioner’s Exhibit No. 1 was actually admitted into evidence. When this Court ordered the court reporter to

supplement the record with “the reporter’s record containing all of the

recorded testimony and evidence admitted at the trial,” the court reporter

responded by filing the trial transcript and only one exhibit, Petitioner’s

Exhibit No. 1, and not any photographs.

[11]

Petitioners

Exhibit No. 1 is a packet of copies, only two of which are certified, of

criminal complaints and judgments and sentences purportedly entered against

Valencia. As conceded by DFPS, the

certified copies of documents contained in Petitioner’s Exhibit No. 1 reveal

that the case against Valencia for the offense of aggravated robbery was

dismissed on March 26, 2007. Moreover,

although a certified copy of a criminal information, apparently filed on March

29, 2008, accused Valencia of the misdemeanor offense of “Assault-Family

Member,” nothing indicated that, as of the date that the trial court entered

its decree, he had been convicted of the offense.

Inexplicably, counsel for DFPS

merely stated, “[t]hese are photos of his assault” and presented no testimony

to prove that Valencia had committed the misdemeanor offense of assault. A criminal information cannot be considered

evidence that an accused has committed a criminal offense. Ex

parte Dumas ,

110 Tex. Crim.

1, 2 , 7 S.W.2d 90, 90 (1928).

The uncertified copies of criminal complaints and

judgments and sentences in Petitioner’s Exhibit 1 purport to establish that

Valencia was convicted of the following offenses: (1) on April 4, 1997, the

offense of unauthorized use of a motor vehicle, punished as a misdemeanor with

a sentence of 180 days confinement in the Harris County Jail; (2) on November

11, 1997, the offense of theft from a person, punished as a misdemeanor with a

sentence of one year confinement in the Harris County Jail; (3) on April 22,

1998, the offense of driving while intoxicated, a misdemeanor, with a sentence

of 60 days in the Harris County Jail; (4) on February 14, 2000, the offense of

evading arrest, a misdemeanor, with a sentence of 60 days in the Harris County

Jail; (5) on May 30, 2000, the offense of assault, a misdemeanor, with a

sentence of 90 days in the Harris County Jail; (6) on June 25, 2002, the

offense of driving while intoxicated, a misdemeanor, with a sentence of 90 days

in the Harris County Jail; (7) on September 19, 2003, the offense of

unauthorized use of a motor vehicle, a state jail felony, with a sentence of

180 days in a state jail; and (8) on September 23, 2004, the offense of theft,

a state jail felony, with a sentence of 14 months in a state jail.

The punishment for a

state jail felony is by confinement in a state jail for any term of not more

than two years or less than 180 days and a possible fine not to exceed

$10,000. Tex. Penal Code Ann. 12.35(a), (b) (Vernon Supp. 2009).

[12] David

McCullough , John Adams 68 (Simon & Schuster 2001).

[13] The

motion, which is typed, reads in pertinent part as follows:

1. This

Motion is brought by the Harris County Attorney’s Office on behalf of the Department

of Family and Protective Services , who asks the Court, pursuant to Rule

251, Texas Rules of Civil Procedure, to grant a continuance for the trial; of

this cause. As grounds for the requested

continuance Movant alleges:

1.1. Additional time is needed to bench warrant

the alleged father, Joe Lewis Valencia.

. . . .

The motion contains a

signature space, which clearly reads:

Respectfully submitted,

MIKE STAFFORD

HARRIS COUNTY ATTORNEY

SPN# [. . .]

___________________________

Susan Fillion

Attorney for Petitioner, Department

of Family

and Protective Services

2525 Murworth Drive, Suite

300

Houston, TX 77054-1603

. . . .

Although not signed by her, the signature space also

contains the State Bar number and telephone number of Fillion. Stafford and Fillion’s information is lined

through, and, next to this information appears, in handwriting, the signature,

name, and information of Valencia’s trial counsel.

[14] See Tex. Fam.

Code. Ann. § 161.001(1)(E) (Vernon Supp. 2009) (“The court may order

termination of the parent-child relationship if the court finds by clear and

convincing evidence . . . that the parent has . . . engaged in conduct or

knowingly placed the child with persons who engaged in conduct which endangers

the physical or emotional well‑being of the child[.]” ).

[15] See Tex. R. Civ.

P. 297.

[16]

Joe Lewis

Valencia v. Dep’t of Family and Protective Servs. , No. 01-08-00345-CV, (Tex.

App.—Houston [1st Dist.] May 6, 2009, order) (panel consisting of Justices

Jennings, Alcala, and Higley).

[17] T his Court has further recognized that a parent has a

constitutional right to counsel in such cases.

Bermea v. Tex. Dep’t of Family and Protective Servs. , 265 S.W.3d

34, 39 (Tex. App.—Houston [1st Dist.] 2008), pet. denied , 264 S.W.3d 742 (Tex. 2008) (per curiam); In re

J.M.S. , 43 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2001, no pet.). In

so doing, we have emphasized

The United

States Supreme Court has unanimously held that “the interest of parents in

their relationship with their children is sufficiently fundamental to come

within the finite class of liberty interests protected by the Fourteenth

Amendment.” . . . It also unanimously held that “[f]ew

consequences of judicial action are so grave as the severance of natural family

ties.” . . . For these reasons, the United States Supreme

Court places termination of parental rights cases in the same category as

criminal cases and analogizes a parent losing parental rights to a “defendant

resisting criminal conviction” because both seek “to be spared from the State’s

devastatingly adverse action.”

In re J.M.S. , 43 S.W.3d at 63 (quoting M.L.B. v. S.L.J. ,

519 U.S. 102, 103 , 117 S. Ct. 555, 565, 568 (1996)); see also Bermea ,

265 S.W.3d at 39 .

[18] McCullough at 66.

[19]

The

majority asserts, “Following J.O.A.

and the Texas Supreme Court’s holding in M.S. ,

we uphold the requirement announced in the Strickland’s

second prong, and we place the burden on the father to show that the

outcome of this trial would have been different had counsel provided him with a

good defense.” Justice Keyes, in her

concurring and dissenting opinion, asserts that the standard is that Valencia’s

“parental rights would probably not have been terminated but for his counsel’s

ineffective performance at trial.”

[20]

Our concurring colleagues assert that the issue of

constructive denial of counsel “is not presented by this case.” However,

Valencia expressly presents this as his first issue in his briefing, and this

Court has an obligation to directly address the issue. See

TEX. R. APP. P. 47.1.

Our colleagues further

assert that the panel has conducted a deficient performance and prejudice

evaluation and there is “no reason to presume prejudice because the panel found

prejudice.” The panel did highlight some

of the many significant failures of Valencia’s trial counsel to act on

Valencia’s behalf throughout the pre-trial, trial, and post-trial stages of the

proceedings below. However, these

collective failures demonstrate that Valencia, in contrast to the defendant in Bell , received no meaningful assistance

of counsel at all. Valencia’s trial was

“presumptively unfair.” Bell , 535 U.S. at 695–96, 122 S. Ct. at

1851 .

The panel did

conclude, as asserted by our concurring colleagues, that the post-trial

representation of Valencia by his trial counsel was essentially inert, due in

part by his failure to challenge the legal sufficiency of the evidence to

support the trial court’s finding that Valencia had “endangered” the child. However, the panel, pursuant to Texas Supreme

Court authority, addressed the legal sufficiency of the evidence in regard to

the trial court’s finding of “endangerment” only after concluding that Valencia

was constructively denied his right to counsel.

See In re J.O.A. , 283 S.W.3d at

344–47 (addressing legal sufficiency

point not preserved in statement of appellant points as a result of ineffective

assistance of counsel).

Thus,

the panel addressed the threshold issue of ineffective assistance, and its holding

that Valencia was constructively denied his right to counsel was not, as the

majority asserts, an “alternative holding.”

[21]

In accord with the United States Supreme Court’s

explanation of the second prong of Strickland

in regard to deficient performance claims,

the Texas Supreme Court has recently explained that when counsel fails to

file a statement of appellate points, a parent must establish the prejudice

prong of Strickland by

“demonstrate[ing] that he could prevail

on appeal ” on the issues counsel failed to preserve. In re

B.G. , No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (emphasis

added). Thus, the law does not require Valencia to show that the outcome at trial would have been

different. Again, the critical question on appeal is whether the appellate court

can justifiably rely on the outcome of the proceeding. Strickland ,

466 U.S. at 691–92, 104 S. Ct. at 2067.

[22] In

post-submission briefing, DFPS argues that Valencia cannot bring an ineffective

assistance of counsel claim because he had no right to statutorily appointed

counsel as he did not “respond in opposition” when he was served on November

16, 2006, file an affidavit of indigency, and seek appointment of counsel. See Tex.

Fam. Code Ann. § 107.013 (Vernon Supp. 2009).

DFPS asserts that Valencia must have retained his trial counsel.

When trial counsel first acted

on behalf of Valencia by filing the September 6, 2007 motion for continuance,

he did so using a form provided by DFPS.

This fact does not support that Valencia had at that time retained trial

counsel as his counsel. An attorney may

not unilaterally create an attorney-client relationship with a person; that

person must take some express or implied act to retain counsel. See Span Enter. v. Wood , 274

S.W.3d 854, 858 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Moreover, in January 2008, trial counsel

filed Valencia’s answer, in which he stated “NOW COMES the undersigned duly

appointed attorney ad litem for JOE LEWIS VALENCIA . . . .” (Emphasis added.). Thus, the record clearly reflects that trial

counsel was acting as Valencia’s court-appointed attorney.

Nevertheless, DFPS, in its

second motion for en banc reconsideration, argues that Valencia did not have

the right to effective assistance of counsel because “he did not have a right

to statutorily appointed counsel” and trial counsel’s representation of

Valencia was based on trial counsel’s (and, apparently, the trial court’s)

misunderstanding of the scope of his appointment, that is, he had only been

appointed to represent the ‘unknown father,’ a separate party who was entitled

to counsel because the unknown father had not filed with the paternity registry

and both his identity and location were unknown.”

In support of this argument,

DFPS relies on In re V.G. , No. 04-08-00522-CV, 2009 WL 2767040 , at *12

(Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.) (holding parent who

retained counsel in parental rights termination case was not entitled to raise

ineffective assistance of counsel claim) and In re V.N.S. , No.

13-07-00046-CV, 2008 WL 2744659 , at *5 (Tex. App.—Corpus Christi July 3, 2008,

no pet.) (mem. op.) (holding right to effective assistance of counsel is

limited to “cases where indigent parents are appointed counsel and where

parental rights are being wholly terminated”).

However, as explained by the

Fort Worth Court of Appeals,

Just as the Sixth Amendment recognizes an accused’s

right to counsel and that counsel is necessary to produce fair and just

results, the statutory guarantee of counsel recognizes a parent’s right to

counsel and imports that counsel’s skill and knowledge is necessary to

accord parents in termination proceedings sufficient opportunity to meet the

state’s “awesome authority” to terminate their parental rights. Thus, the State of Texas has recognized

the importance of counsel for parents in termination proceedings . Considering the State’s parens patriae

interest in promoting the welfare of the child, the statutorily granted right

to counsel implies that counsel is necessary to an accurate and just result .

In re K.L. , 91 S.W.3d 1 , 10 B 11 (Tex.

App.—Fort Worth 2002, no pet.) (emphasis added). Simply put, a parent who can retain counsel

should not be deprived of the right to effective assistance of counsel in a

proceeding to terminate his parental rights merely because he can afford to

hire a lawyer. Implicit in the Texas

Legislature’s granting of counsel upon an indigent parent once the State has

instituted formal proceedings to terminate his parental rights “is recognition

of a parent’s right to counsel in termination proceedings.” Id . at 10. Moreover, there is no meaningful cure, in the

absence of a right to effective assistance of counsel, for a parent whose

parental rights are erroneously terminated due to counsel’s deficiencies. Id . at 11. A claim for civil malpractice seeking

monetary damages is “wholly inadequate” to compensate a parent for the loss of

his parental rights in a proceeding where counsel was ineffective. Id .

A claim for ineffective assistance is the only “meaningful redress” for

such a parent, whether counsel was appointed or retained. See id . Thus, whether trial counsel was appointed

pursuant to the Family Code, simply appointed, or retained, Valencia was

entitled to representation necessary to ensure that the trial was fair. See Strickland , 466 U.S. at 685 , 104

S. Ct. at 2063 .

[23] C riminal

history records are public records that must be authenticated before they are

admissible. See Hull v. State ,

172 S.W.3d 186 , 189–90 (Tex. App.—Dallas 2005, pet. ref’d); Carlock v. State ,

99 S.W.3d 288, 295 (Tex. App.—Texarkana 2003, no pet.). The requirement of authentication is a

“condition precedent to admissibility.” Tex R. Evid . 901(a). Authentication of a public record requires

evidence that a purported public record is from the public office where items

of that nature are kept. Tex. R. Evid . 901(b)(7). A public record can be self-authenticating if

the document (1) bears “a seal purporting to be that of . . . any State . . .

and a signature purporting to be an attestation or execution” or (2) purports

“to bear the signature in the official capacity of an officer or employee of

[the State], having no seal, if a public officer having a seal and having official

duties in the [State] of the officer or employee certifies under seal that the

signer has the official capacity and that the signature is genuine.” Tex.

R. Evid . 902(1), (2). In Carlock ,

uncertified copies of existing judgments of the defendant’s alleged prior

convictions were inadmissible because the defendant’s parole officer was unable

to provide the proof necessary for authentication that the judgments were from

the public office responsible for maintaining those records. 99 S.W.3d at 295 .

None of the copies of documents offered by DFPS to

prove that Valencia had previously been convicted of several misdemeanors and

state jail felonies was authenticated.

Washington, like the parole officer in Carlock , could not have

authenticated the records. See id . Thus, the unauthenticated criminal history

records were inadmissible. Id . However, because trial counsel did not object

to their admission, Petitioner’s Exhibit No. 1 must be considered in a

sufficiency review. See Tex. R. Evid . 802 (“Inadmissible

hearsay admitted without objection shall not be denied probative value merely

because it is hearsay.”); Tear v. State , 74 S.W.3d 555, 559 (Tex.

App.—Dallas 2002, pet. ref’d) (when reviewing legal sufficiency, courts “look

to all the evidence in the record, including admissible and inadmissible

evidence, and direct and circumstantial evidence”); see also Farley v.

Farley , 731 S.W.2d 733, 734 (Tex. App.—Dallas 1987, no writ) (applying rule

802 and explaining that unauthenticated judgment of another state’s court,

which would be hearsay, was not denied probative value when admitted without

objection).

[24] Boyd references section 15.02(1)(E), the predecessor to

Texas Family Code section 161.001(1)(E).

[25] At oral

argument, this Court invited briefing on the issues as to whether it could take

judicial notice of whether Valencia was or was not subsequently convicted of

this offense and whether we could consider any such information in deciding the

issues presented. After considering the

arguments of the parties, the panel concluded that we may not take judicial

notice of a conviction that was not in existence at the time of trial. See Brown v. Brown , 236 S.W.3d

343, 349 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In conducting its analysis, an appellate court

is bound by the record containing the evidence that was before the trial court

at the time it entered its decree. See

Univ. of Tex. v. Morris , 344 S.W.2d 426 , 429 (Tex. 1961). “It is axiomatic that an appellate court

reviews the actions of a trial court based on the materials before the trial

court at the time it acted.” Hamm v.

Millennium Income Fund, L.L.C. , 178 S.W.3d 256, 272 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied) (quoting Methodist

Hosps. of Dallas v. Tall , 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi

1998, no pet.)).

[26] See

also Padilla v. Dep’t of Family and Protective Servs. , No. 01-07-00313-CV, 2008 WL 525750 , at *1–2 (Tex.

App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.) (criminal history

plus testimony as to multiple prior referrals with DFPS); Callahan v.

Brazoria County Children’s Protective Servs. Unit , No. 01-01-00916-CV, 2003

WL 21299952 , at *1 (Tex. App.—Houston [1st Dist.] June 5, 2003, no pet.) (mem.

op.) (criminal history plus psychiatrist’s testimony that father had propensity

for violence and anti-social personality disorder, mother’s testimony about

father’s violence towards family, and father’s testimony about marijuana use).

[27] See

also In re H.G.H. , No.

14-06-00137-CV, 2007 WL 174371 , at *9 (Tex. App.—Houston [14th Dist.] Jan. 25,

2007, no pet.) (mem. op.) (holding “[a]ppellant’s repeated incarceration,

continuing propensity towards criminal conduct, failure to support [the child],

and failure to complete, or make a good-faith effort to complete, the

court-ordered family services constitute a course of conduct which endangered

the physical or emotional well-being of [the child]”).

[28] In its

third motion for en banc reconsideration, DFPS, in an argument that it did not

make to the trial court, in its briefing to this Court, or in its oral argument

to this Court, asserts that Valencia endangered the child by not complying with

the court ordered family service plan.

DFPS asserts that Valencia had a “responsibility to comply with the

terms of the Department’s service plan by court order ,” regardless of

whether he “agreed” to the plan, and DFPS cites to Texas Family Code section

263.103, which it asserts says “plan may take effect even if Department files it

without parent’s signature.” While

section 263.103 provides that the “plan takes effect . . . when the department

. . . files the plan without the parents’ signatures,” DFPS ignores the

remainder of the statute. See Tex. Fam. Code. Ann . § 263.103(d) (Vernon 2008). The statute also requires that “the child’s

parents and the representative of the department . . . shall discuss each term

and condition of the plan” and “[i]f the department . . . determines that the

child’s parents are unable or unwilling to sign the service plan, the

department may file the plan without the parents’ signatures.” Id . § 263.103(a), (c). The record

contains no evidence that DFPS complied with its statutory requirements before

filing the plan. The Family Code does

provide for termination of parental rights if a parent “failed to comply with

the provisions of a court order that specifically established the actions

necessary for the parent to obtain the return of the child who has been in the

permanent or temporary managing conservatorship of the Department of Family and

Protective Services for not less than nine months as a result of the child’s

removal from the parent.” Tex. Fam. Code. Ann . § 161.001(1)(O) (Vernon Supp. 2009). However, even though the trial court ordered

Valencia to comply with the family service plan, the record contains no

evidence regarding whether or not Valencia did so. Moreover, DFPS did not even ask the trial

court to consider this section as a ground for terminating Valencia’s parental

rights, and the trial court made no such finding.

[29] In its

third motion for en banc reconsideration, DFPS asserts that Valencia, after the

State, in March 2007, dismissed the case against him for the offense of

aggravated robbery, “never took any action to care for or support the child in

the full year when he was not subject to incarceration.” The majority asserts that Valencia, “when not

incarcerated,” had not “seen the child, paid support, or made arrangements to

provide [the child] with food, clothing, shelter or care” or “inquired about or

supported the child or made any effort to see to her needs.” However, as noted above, the trial record in

no way supports the assertions of DFPS or the majority.

First, the record is unclear as

to if, or for how long, Valencia was out of jail after the State dismissed in

March 2007 the aggravated robbery case.

In fact, during the “full year” that DFPS asserts that Valencia was not

incarcerated, the clerk’s record shows that DFPS, on September 6, 2007, drafted

an “Unopposed Motion for Continuance,” which was then offered by Valencia’s

trial counsel to bench warrant Valencia out of jail.

Second, even if Valencia was

out of jail for the “full year,” the record is silent as to any of Valencia’s

actions or omissions in regard to the child prior to January 2008. In her brief

testimony, Washington stated that Valencia, “since” January 2008, when

“he offered to take a paternity test,” which later revealed that he is the father

of the child, had not “contact[ed]” DFPS or attempted “to check” on the

child. The remainder of the reporter’s

record does not address any acts or omissions of Valencia in regard to the

child from March 2007 to January 2008.

More importantly, DFPS simply

did not present any evidence that Valencia “never” cared for the child or

failed to act regarding child support or the provision of food, clothing,

shelter, or care during the pendency of the case.

Third, contrary to the majority’s

assertions, the 111-page clerk’s record, consisting of the usual pleadings,

orders, and docket sheets, contains no evidence regarding any act or omission

of Valencia in regard to the child.

Heiskill’s affidavit testimony regarding why the child was taken from

the mother and placed into DFPS’s care mentions Valencia only to say that he

was in jail pending trial on the robbery case and could not be interviewed

because he was in quarantine. And, as

discussed above, a family service plan was filed with the trial court, but the

record includes no progress reports or any information regarding Valencia’s

compliance or failure to comply with the plan.

In sum, the majority essentially

asserts that the trial court could have inferred that Valencia had engaged in

conduct that actually endangered the child from Washington’s answer to these

two questions (1) “And has he made any attempts to check on the welfare of the

child?” Answer: “No” and (2) “Based on over 10 years of repeated criminal

history including assault of the mother, are you asking that Joe Valencia’s

rights be terminated and he has engaged in conduct that endangers the physical

and emotional well‑being of the child?” Answer: “Yes.” This does not constitute clear and convincing

evidence that Valencia had actually endangered the child.

As noted above, to “infer” a

fact, one “must be able to deduce that fact as a logical consequence of other

proven facts.” Marshall Field Stores,

Inc. v. Gardiner , 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993,

writ dism’d w.o.j.). Stated another way,

to be legitimate or permissible, an inference must be deduced as a logical

consequence of the facts presented in evidence, and there must be a logical and

rational connection between the facts in evidence and the fact to be

inferred. United States v. Michelena‑Orovio ,

702 F.2d 496, 504 (5th Cir.), aff’d on reh’g , 719 F.2d 738 (5th Cir.1983)

(en banc). Even if we accord the sparse

record with the meaning gleaned by the majority, Washington’s two answers, unsupported

by any other evidence in the record, did not give the trial court, as the fact

finder, a basis from which it could have reasonably inferred and formed a firm

belief or conviction that Valencia had actually “endangered” the child.

[30]

Contrary

to the assertion of the majority, the panel does not “excuse” Valencia’s

“abandonment” of his child. Texas Family

Code section 161.001(1)(N) provides for termination of parental rights if a

parent “constructively abandoned the child who has been in the permanent or

temporary managing conservatorship of [DFPS] . . . for not less than

six months, and . . . the department . . . has made reasonable efforts to

return the child to the parent; . . . the parent has not regularly visited or

maintained significant contact with the child; and . . . the parent has

demonstrated an inability to provide the child with a safe environment[.]” Tex.

Fam. Code. Ann . §

161.001(1)(N) (Vernon Supp. 2009). As

revealed in the trial transcript, DFPS did not even ask the trial court to

consider “abandonment” as a ground for terminating Valencia’s parental rights,

and the trial court made no such finding.

[31] Originalism

at 26.

[32] Dörner at 10.