Joe Lewis Valencia v. Department of Family and Protective Services ( 2010 )

Opinion issued July 29, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00345-CV

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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

CONCURRING AND DISSENTING OPINION ON EN BANC REVIEW

          I agree with the majority of the en banc court that the original panel opinion represents a grave departure from precedent in the review of parental termination cases for the reasons set out in Justice Bland’s majority opinion and that it, therefore, merits en banc review under Texas Rule of Appellate Procedure 41.2 to “maintain uniformity of the court’s decisions.”  Tex. R. App. P. 41.2(c).  I also agree with the majority’s determination that the record is legally and factually sufficient to support termination of appellant’s parental rights on the ground of endangerment of a child.  I disagree with the majority’s invitation to appellant to file a motion to abate the appeal for remand to the trial court to attempt to establish a record of ineffective assistance of counsel.  I believe this procedure is contrary to Texas Supreme Court and Texas Court of Criminal Appeals precedent in ineffective assistance of counsel cases.[1]  Thus, I dissent from this part of the majority opinion.  I also disagree with the dissenting justices’ (the original panel’s) application of the standard of review of ineffective assistance in this case.

          I would apply the established Strickland standard of review of ineffective assistance of counsel.[2]  I would hold that appellant has failed to satisfy the first prong of the Strickland standard because he has failed to show that his trial counsel’s performance fell below professional standards.  Furthermore, even had appellant made such a showing, it is the appellant’s burden on appeal to show prejudice from his counsel’s ineffective assistance in order to satisfy the second prong of the Strickland standard.  Appellant has failed to make any showing that his parental rights would probably not have been terminated but for his counsel’s ineffective performance at trial. Thus, I would also hold that appellant has failed to satisfy the second prong of Strickland.  Since he has satisfied neither prong of the standard of review, he has not shown that he received ineffective assistance at trial. 

          If I were to reach the issue of whether appellant’s counsel was ineffective for failing to preserve for appeal the issue of sufficiency of the evidence of endangerment, I would find the evidence both legally and factually sufficient to support termination on this ground for the reasons stated in Justice Bland’s opinion and in this opinion.

          I would affirm the trial court’s judgment terminating appellant’s parental rights.

Standard of Review of Ineffective Assistance in Termination Proceedings

          In Bermea v. Tex. Dept. of Family & Protective Servs., 265 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2008), pet. denied sub nom., In re G.B., 264 S.W.3d 742 (Tex. 2008), this Court stated, following In re M.S., 115 S.W.3d 534 (Tex. 2003):

In In re M.S., the Texas Supreme Court resolved a split among the courts of appeals and held that parents are entitled to effective assistance in termination proceedings, and it adopted a two-pronged test for evaluating claims of ineffective assistance of counsel based on Strickland v. Washington, 466 U.S. 668, 681, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).  115 S.W.3d 534, 544–45 (Tex.2003); see also Tex. Fam. Code Ann. § 107.013 (Vernon Supp. 2007) (according right to appointed counsel).

Prior to the supreme court’s decision in In re M.S., this Court had already held that the statutory right to counsel in termination cases meant the right to effective assistance of counsel.  In re J.M.S., 43 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Tex. Fam. Code Ann. § 107.013.  We observed that this right was not only statutory but constitutional in that the United States Supreme Court had 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.”  In re J.M.S., 43 S.W.3d at 63.  We further observed that, because “[f]ew consequences of judicial action are so grave as the severance of natural family ties,” the Supreme Court had placed termination of parental rights cases in the same category as criminal cases.  Id.  Like the United States Supreme Court, we adopted the Strickland standard for determining the effectiveness of counsel.  Id.  (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064); see also In re M.S., 115 S.W.3d at 544–45 (holding that Strickland standard of ineffective assistance of counsel applies to parental termination cases).  

Bermea, 265 S.W.3d at 38–39.  This Court reiterated:

The right to effective assistance of counsel in termination cases is not only a statutory right but also a constitutional right guaranteed by the due process clause of the Fourteenth Amendment.  See M.L.B. v. S.L.J., 519 U.S. 102, 103, 117 S. Ct. 555, 557, 136 L. Ed. 2d 473 (1996); In re J.M.S., 43 S.W.3d at 63.

Id. at 41.  Finally, we stated:

The constitutional standard for determining the effectiveness of counsel established in Strickland and adopted for parental rights termination cases by this Court in In re J.M.S. and by the Texas Supreme Court in In re M.S. establishes a high hurdle for a parent hoping to reverse termination.  The parent must establish that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  In re J.M.S., 43 S.W.3d at 63 (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  Thus, the test of ineffective assistance in a parental termination case countenances additional delay in the final resolution of the case only in those rare instances in which the deprivation of parental rights caused by the ineffective assistance was of constitutional magnitude.

Id. at 42. 

          After Bermea was decided by this Court, the Texas Supreme Court reiterated its prior holdings in In re M.S. and In re J.F.C., that, in parental-rights termination cases, an “ineffective assistance of counsel claim raises due process concerns” and that the constitutional Strickland standard of ineffective assistance applies.  In re J.O.A., 283 S.W.3d 336, 347 (Tex. 2009); see also In re M.S., 115 S.W.3d at 544–45; In re J.F.C., 96 S.W.3d 256, 280 (Tex. 2002).  It further stated, “An ineffective assistance of counsel claim . . . requires more than merely showing that appointed counsel was ineffective.  There are two elements to the Strickland standard.”  In re J.O.A., 283 S.W.3d at 344.  Under the first prong of Strickland, the defendant must show that his counsel’s performance was deficient, i.e., “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 342 (quoting In re M.S., 115 S.W.3d at 545). 

          In assessing the first prong, the reviewing court must presume that “‘counsel’s conduct falls within the wide range of reasonable professional assistance,’ including the possibility that counsel’s decision not to challenge factual sufficiency was based on strategy, or even because counsel, in his professional opinion, believed the evidence factually sufficient such that a motion for new trial was not warranted.”  In re J.OA., 283 S.W.3d at 343 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).

Under the second prong, “the defendant must show that counsel’s ‘deficient performance prejudiced the defense . . . that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’”  Id. at 344 (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  In assessing the second prong, “[t]aking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.”  In re J.F.C., 96 S.W.3d at 281 (quoting Strickland, 466 U.S. at 696, 104 S. Ct. at 2069). 

A.      The En Banc Majority’s Application of the Strickland Standard of Review

          The en banc majority in this case agrees that “in evaluating claims of ineffective assistance of counsel in civil parental-rights termination cases, we begin with the standard set forth by the United States Supreme Court for criminal cases in Strickland v. Washington.”  Slip Op. at 21 (citing In re M.S., 115 S.W.3d at 544); see also In re J.O.A., 283 S.W.3d at 341–42; In re J.F.C., 96 S.W.3d at 280.  However, having stated the correct standard of review, the majority disregards the presumption in Strickland that counsel’s conduct falls within the wide range of professional assistance and might be based on strategy or a reasonable  professional opinion.  See In re J.O.A., 283 S.W.3d at 343.  The en banc majority simply recites the allegations in appellant’s pleading without any review of the record and presumes, not that appellant’s trial counsel’s decisions fell within the wide range of reasonable professional assistance, as required by the Strickland standard, but the opposite, namely that “counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”’  Id. 

          Having incorrectly presumed that appellant’s counsel’s performance was constitutionally deficient, so that the first prong of Strickland need not be considered, the majority next correctly observes that, under the second prong of Strickland, “Texas law burdens the father seeking reversal of the trial court’s decision with demonstrating a reasonable probability that he would have been awarded custody of this child save for his trial counsel’s ineptness.”  Slip Op. at 24.  However, despite the supreme court’s instruction in In re M.S. and in In re J.F.C. that to prove the second prong of the Strickland standard the appellate court must determine whether “the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors,” the en banc majority fails to hold appellant to this burden.  In re J.F.C., 96 S.W.3d at 281 (quoting Strickland, 466 U.S. at 696, 104 S. Ct. at 2069); In re M.S., 115 S.W.3d at 549–50.  Although it purports to follow the analytical roadmap set out in In re M.S., the majority’s analysis is not substantiated by a review of either In re J.O.A. or In re M.S., and the en banc court’s subsequent invitation to the father in this case to “request that we abate the case to the trial court for a hearing to determine whether any deficiency in counsel’s performance affected the outcome of the case” is foreign to Texas law.

          In In re M.S., the supreme court was confronted with the argument by an indigent mother whose parental rights to her five sons had been terminated that her trial attorney had been ineffective because, among things, he had failed to preserve a meritorious factual insufficiency of the evidence claim by failing to file a motion for new trial statutorily required for factual sufficiency review.  In re M.S., 115 S.W.3d at 535–36, 543–44.  The supreme court concluded that “the fundamental liberty interests at issue were too dear and the risk of erroneous deprivation too significant to countenance the waiver of a parent’s appellate rights through procedural neglect.”  In re J.O.A., 283 S.W.3d at 343 (citing In re M.S., 115 S.W.3d at 549; U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19).  It concluded that, under the circumstances of that case, the appellant had satisfied her burden under the first prong of Strickland by proving her counsel’s incompetency in failing to preserve her factual insufficiency complaint.  In re M.S., 115 S.W.3d at 549. 

          After cautioning in In re M.S. that it was not holding that every failure to preserve factual sufficiency rises to the level of ineffective assistance, the supreme court set out instructions for the appellate courts in reviewing ineffective assistance in parental-rights termination cases, stating:

[O]ur appellate courts must engage in a review using the established Strickland standards.  That is, the appellate court must indulge in the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” including the possibility that counsel’s decision not to challenge factual sufficiency was based on strategy, or even because counsel, in his professional opinion, believed the evidence factually sufficient such that a motion for new trial was not warranted.  As the Court of Criminal appeals has stated, “[w]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected.”  In short, the courts must hold the parent’s burden [to be] to show that “counsel’s performance fell below an objective standard of reasonableness.”

          The appellate courts must also conduct a review to determine whether counsel’s defective performance caused harm; in other words, whether “there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.”  The appellate court will conduct such a review to determine harm as if factual sufficiency had been preserved, under our established factual sufficiency standard in parental-rights termination cases, understanding that the evidentiary burden in such cases is “clear and convincing.”

In re M.S., 115 S.W.3d at 549–50 (citations omitted).

          Following its own instructions, the court then considered whether the appellant was harmed by her counsel’s defective performance, as required to satisfy the second prong of Strickland.  Because counsel’s ineffectiveness in In re M.S. in failing to file a motion for new trial, as required for factual sufficiency review, could have resulted in harm to the mother whose rights were terminated only if the evidence was, in fact, factually insufficient to support the judgment terminating her parental rights, and because no factual sufficiency review had been done by the appellate court, the supreme court remanded the case to the court with instructions, stating:

[I]f the court of appeals finds that the evidence to support termination was factually insufficient, and that counsel’s failure to preserve a factual sufficiency complaint was unjustified and fell below being objectively reasonable, then it must hold that counsel’s failure to preserve the factual sufficiency complaint by a motion for new trial constituted ineffective assistance of counsel.  In that case, the court of appeals should reverse the trial court’s judgment, and remand the case for a new trial.

Id. at 550.

          The supreme court reached the same conclusion on the first prong of Strickland in In re J.O.A., namely that the indigent father whose rights were terminated had been deprived of due process by his counsel’s unjustified failure to preserve a factual sufficiency claim for review, in that case by failing to file a statutorily required statement of points for appeal.  See In re J.O.A., 283 S.W. 3d at 340–43.  Just as in In re M.S., the supreme court concluded, as had the appellate court below, that the appellant had met his burden of showing that his counsel’s performance fell below an objective standard of reasonableness, thereby satisfying the first prong of Strickland.  Id.

          The supreme court then turned to the second prong of Strickland.  In In re J.O.A., the court of appeals, unlike the appellate court in In re M.S., had considered both the legal and the factual sufficiency of the evidence, despite the failure of the appellant’s trial counsel to file a statement of points for appeal, and it had found the evidence supporting termination to be both legally and factually insufficient to support termination of the father’s parental rights.  Id. at 339, 346.  The supreme court concluded that the evidence of endangerment, on which termination was predicated, was legally sufficient to support termination. Id. at 346.  However, although it did not agree with the court of appeals that the evidence was factually insufficient to support termination, it recognized that, under the Texas Constitution, factual sufficiency review is committed to the courts of appeals and not to the supreme court.  Id. at 346–47 (citing Tex. Const. art. V, § 6). Therefore, because the court of appeals had determined that the evidence at trial was factually insufficient to support the essential finding that the parent had endangered the child, the supreme court remanded the case to the trial court for a new trial on the issue of termination of the father’s parental rights.  Id. at 347.

          Neither in In re M.S. nor in In re J.O.A. did the supreme court conclude, as does the en banc majority in this case, that the evidence was legally and factually sufficient to support terminating a parent’s rights, affirm the judgment of the trial court, and then allow the appellant to request abatement to the trial court “for a hearing to determine whether any deficiency in counsel’s performance affected the outcome of the case.”  Slip Op. at 26.  Rather, this ruling is directly contrary to the clear instructions for appellate review of ineffective assistance cases under Strickland set out in In re M.S. and quoted above.  See In re M.S., 115 S.W.3d at 549–50.  Nor is there any precedent in Texas or United States Supreme Court law for such a ruling.

          I therefore dissent from this portion of the en banc majority’s opinion.  I would apply the Strickland standard of review as set out in In re M.S., In re J.M.C., and In re J.O.A. to appellant’s ineffective assistance claim.

B.  The Dissenting Justices’Application of the Strickland Standard of Review

          Unlike the en banc majority, the dissenting justices do not simply presume that appellant’s trial counsel’s performance was constitutionally ineffective and therefore fail to address appellant’s counsel’s actual performance under the first prong of Strickland.  They review appellant’s counsel’s performance and conclude not only that it was ineffective, satisfying the first prong of Strickland, but that it was so deficient as to amount to no representation at all and that therefore harm must be presumed under the second prong of Strickland. See Slip. Op. at 5.  Thus, they would reverse the termination of appellant’s parental rights and render judgment that his parental rights are not terminated.  Slip Op. at 71. 

          Unlike the dissent, I would indulge the “strong presumption” that appellant’s counsel’s performance fell within “the wide range of reasonable professional assistance,” including the possibility that counsel’s decision not to challenge the factual sufficiency of the evidence of endangerment was based on strategy or a professional opinion that the evidence was factually sufficient.  See In re M.S., 115 S.W.3d at 549.  I would hold, on the basis of the record in this case, that appellant has not shown that his trial counsel’s performance was below professional standards, as required to prove the first prong of Strickland.  However, even if I thought that appellant had proved that his counsel’s performance was constitutionally deficient, I would still find no reasonable probability that but for the acts and omissions of counsel the outcome of the termination proceedings would have been different.  See In re J.O.A., 283 S.W.3d at 344.  Thus, I would not conclude that appellant’s trial counsel’s performance deprived him of a fair trial with a reliable result.  See In re J.F.C., 96 S.W.3d at 281.

            Appellant’s trial counsel was also his original counsel on appeal.  He filed a statement of six points for appeal, as provided by section 263.405(b)(2) of the Family Code.  See Tex. Fam. Code § 263.405(b)(2) (Vernon 2008).  On appeal, he filed a brief raising only one issue contesting the trial court’s finding, pursuant to section 263.405(d)(3), that the appeal was frivolous.  See id. § 263.405(d)(3).[3]  A three-judge panel of this Court struck the brief, however, and remanded the case to the trial court with orders that the trial court appoint new appellate counsel and that appellant’s new counsel brief the issue of ineffective assistance, including the sufficiency of the evidence of endangerment, “if appropriate.”  Both the original panel opinion and the opinions on en banc review are based on the brief submitted by appellant’s new appellate counsel.

          Appellant’s new appellate counsel acknowledges that appellant’s original counsel filed a statement of points listing six points for appeal, finds three of those frivolous, including the argument that the evidence was legally and factually insufficient to show that termination was in the best interest of the child, but then argues that the statement of points was ineffective for failing to include legal and factual insufficiency of the evidence in support of endangerment of the child.

          Appellant’s new counsel also argues, as did his original counsel, that appellant’s trial counsel erred by failing to object to the trial court’s taking judicial notice of the contents of the Department of Family Protective Services (DFPS) file on V.V., including the departmental affidavit describing the reasons the child was taken into care.  He also observes that appellant’s criminal record was offered and admitted into evidence without objection and that photos of the child’s mother after her assault by appellant were admitted into evidence over the objection of appellant’s trial counsel that they went “to the criminal side.”

At the same time, Appellant’s brief acknowledges with citations to the record, that caseworker Felicia Washington did testify that appellant’s paternity test confirmed that he was the father; that appellant was in jail for assaulting the child’s mother when the case began but had appeared in court at the last hearing and had been advised of the date of the final hearing; that appellant had a criminal record; that appellant had not attempted to contact DFPS to check on V.V.’s welfare; that, at the time of the hearing, V.V. had been with a foster family for 14 months, since she was four months old, had bonded with them, and had not been able to bond with appellant; that appellant was unable to show he had any relative who could take care of the child; and that appellant was living with V.V.’s mother, who had tested positive for cocaine at the birth of the child. 

          In responding to appellant’s brief, and after reviewing the record, the dissent concludes that appellant’s counsel erred in “fail[ing] to bench warrant [appellant] to trial”; and it faults him for making only an oral motion for a bench warrant, which the trial judge denied, and failing to file a verified motion for continuance.  Slip Op. at 27, 30–31.  It declares appellant’s counsel incompetent for “failing to secure [appellant’s] presence at trial,” without regard to counsel’s motion for new trial and statement of points, both based on the trial court’s denial of a bench warrant.  See id. The dissent also finds appellant’s trial counsel ineffective for failing to object to the trial court’s taking judicial notice of the DFPS file and failing to object to the introduction into evidence of “numerous unauthenticated copies” of appellant’s criminal records.  Slip Op. at 27.  Yet it requires no showing by appellant that the trial court erred in taking notice of the DFPS file or that appellant’s criminal records could not readily have been authenticated.[4]

          Likewise, the dissent complains that appellant’s counsel’s objection to the admission of photos of the child’s mother following her beating by appellant, namely “goes to the criminal side,” was “invalid,” but it requires no showing by appellant that the photos were actually inadmissible and therefore could have been suppressed with a properly phrased objection. Id.  It also calls appellant’s trial counsel ineffective for failing to cross-examine the DFPS worker and to call witnesses on appellant’s behalf.  Id. at 28.  Yet it requires no showing by appellant that cross-examination of the DFPS’s witness would have revealed evidence favorable to appellant or that witnesses who could testify to appellant’s fitness as a parent existed and were available to testify but for appellant’s counsel’s failure to investigate.  Finally, the dissent acknowledges that appellant’s counsel filed a statement of points for appeal, as required by the Family Code, but it declares him incompetent for failing to challenge the legal and factual sufficiency of the evidence that appellant had endangered the child in his statement of points, without acknowledging that he did challenge the legal and factual sufficiency of the evidence that termination was in the best interest of the child.  Id. at 28.

          In sum, the dissent merely lists and elaborates upon appellant’s original counsel’s supposed errors, expresses its opinion agreeing with appellant’s new counsel that appellant’s original counsel was incompetent, and declares that appellant “received no assistance of counsel” and thus “was constructively denied his right to counsel.”  Id. at 29.

          In Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002), the Court of Criminal Appeals faced a similar situation in an ineffective assistance of counsel case.  It stated,

The court of appeals simply assumed that each of the examples [of attorney conduct] it noted were, in fact, instances of objectively unreasonable and unprofessional conduct.  Because the court itself did not discern any particular strategy or tactical purpose in counsel’s trial presentation, it therefore assumed that there was none.  This inverts the analysis.  Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.  From this trial record, one could conclude that there were legitimate and professionally sound reasons for counsel’s conduct or one could speculate that there were not.  Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf.  His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.

Id. at 836 (emphasis added).  The court did not remand the case to allow counsel the opportunity to explain her actions, however, as the en banc majority proposes to do in this case, because “the court of appeals point[ed] to nothing in the record that probably would have, had it been developed more thoroughly, led to a not guilty verdict or a lesser punishment.”  Id. at 836–37.  Thus “there [was] no reason to believe such evidence existed,” and, even if there had been, it concluded, “Strickland requires more—not only proof of professional incompetence but also proof of prejudice.”  Id.  The Texas Court of Criminal Appeals held that the court of appeals erred in finding that the appellant’s counsel failed to provide competent representation and that it further erred “when it held, without a specific showing of prejudice, that counsel’s performance undermined confidence in the conviction.”  Id.

          Here, like the intermediate appellate court overruled in Bone, the dissent speculates that appellant’s counsel had no strategy in failing to object to DFPS’s evidence or to call character witnesses, but it does not require appellant to prove that there was, is fact, no plausible professional reason for any specific act or omission.  See Bone, 77 S.W.3d at 836; see also In re M.S., 115 S.W.3d at 550 (requiring such proof in parental-rights termination cases by “clear and convincing” evidence). Nor does it require appellant to make any showing that facts existed such that, had appellant’s counsel performed differently, appellant’s parental rights might not have been terminated. Thus here, as in Bone, the dissent “inverts the analysis” required by Strickland.  See Bone, 77 S.W.3d at 836.

          In my view, the record does not support the conclusion that appellant’s counsel’s actions were “objectively unreasonable and unprofessional.”  See Bone, 77 S.W.3d at 836.  I would not conclude that appellant’s trial counsel was constitutionally ineffective for failing to seek a bench warrant to bring appellant to the termination hearing, because he did seek a bench warrant, and he also stated in his motion for new trial and listed as error in his six-point statement of points for appeal the trial court’s refusal to grant the bench warrant.  Nor would I conclude that appellant’s counsel was constitutionally ineffective for failing to object to the trial court’s taking judicial notice of the DFPS file on V.V. because the court was at least arguably justified in taking judicial notice of its readily verifiable contents.  See Tex. R. Evid. 201.  Nor could I conclude on the basis of the record in this case that appellant’s counsel was ineffective for failing to object to the admission of appellant’s criminal records or photos of the child’s mother after her assault by appellant, because appellant did object to the admission of the photos, if improperly, and there is no indication that either the photos or the criminal records were inadmissible.  Nor would I conclude that appellant’s counsel could have had no reasonable strategy in failing to cross-examine the DFPS’s witness or in failing to call character witnesses, because there is no indication in the record that witnesses existed who could have testified to appellant’s fitness as a parent for V.V. or that cross-examination of the DFPS witness about the DFPS’s actions would have revealed facts favorable to appellant. 

          Finally, I would not conclude that appellant’s counsel was unprofessional for failing to preserve a claim of insufficiency of the evidence to support a finding that termination was in the child’s best interest or a finding of endangerment.  Appellant’s original counsel did preserve the former claim, and the trial court and his replacement counsel found that point of error frivolous.  A finding of endangerment would depend upon much of the same evidence.

In sum, I could not say on the basis of the record that trial counsel had “no plausible professional reason” for the foregoing “specific act[s] or omission[s]” or that there were no “legitimate and professionally sound reasons for counsel’s conduct” overall.  See Bone, 77 S.W.3d at 836. Nor could I say on this basis that appellant’s “counsel made errors that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  In re J.O.A., 283 S.W.3d at 342 (quoting In re M.S., 115 S.W.3d at 545). Rather, I would presume that “counsel’s conduct [fell] within the wide range of reasonable professional assistance,” including the possibility that a decision was based on strategy or a reasonable professional opinion.  See In re J.O.A., 283 S.W.3d at 343 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065).  And I would hold that appellant failed to overcome that presumption. See In re M.S., 115 S.W.3d at 549.

          The dissent would hold, however, that appellant’s counsel’s failure to preserve the claim of insufficiency of the evidence to support a finding of endangerment not only was unprofessional but changed the outcome of the termination proceedings, justifying not only reversal for ineffective assistance and remand, in accordance with In re M.S., 115 S.W.3d at 550, but rendition of judgment that the father’s parental rights are not terminated, Slip Op. at 71, a holding without precedent in an ineffective assistance case.  I would not so hold.  

Sufficiency of the Evidence to Support Termination of Appellant’s Rights

          The linchpin of this case with respect both to the effectiveness or ineffectiveness of counsel and to affirmance or reversal of the judgment terminating appellant’s parental rights is whether the evidence was legally and factually sufficient to support termination.  If the evidence was insufficient to support termination because there was insufficient evidence of endangerment, the case should be reversed and remanded for a new trial because appellant’s counsel will have been shown to have been ineffective for having failed to preserve this point of error in violation of appellant’s constitutional due process rights.  And it should be reversed and remanded for a new trial on the merits without abatement for proceedings on appellant’s counsel’s ineffectiveness in the previous trial (which will have been proved) and without rendition of a judgment that the father’s rights are not terminated (which would be unsupported by sufficient evidence).  If the evidence at trial was sufficient to support termination, any ineffectiveness of counsel will have had no reversible effect and the judgment terminating appellant’s parental rights should be affirmed rather than reversed.  See In re J.O.A., 283 S.W.3d at 347; In re M.S., 115 S.W.3d at 550.  I turn, therefore, to the legal and factual sufficiency of the evidence to support the trial court’s deemed findings of endangerment and best interest of the child and to support the judgment.

          When, as here, the legal sufficiency of the evidence supporting termination of parental rights is challenged, the reviewing court looks at all the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true.  In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 265–66. The court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.  In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.  It should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible.  In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.  If, after conducting a legal sufficiency review of the record evidence, the court determines that no reasonable factfinder could have formed a firm belief or conviction that the matter to be proved was true, the court must conclude that the evidence on that matter is legally insufficient.  In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.

          Only when the factual sufficiency of the evidence is challenged does the reviewing court review disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.  The evidence is factually insufficient in a parental rights termination case if, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction.  In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.  The court of appeals should “explain in its opinion ‘why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.’” In re J.O.A., 283 S.W.3d at 345; see In re J.F.C., 96 S.W.3d at 266–67.

          In the absence of a challenge to the factual sufficiency of the evidence, the appellate court must deem an omitted finding in support of the judgment if there is some evidence to support it and the other requirements of the rules of civil procedure have been met.  In re J.F.C., 96 S.W.3d at 275–76.  Remand to the court of appeals is not required for a factual sufficiency review of a deemed finding that termination was in children’s best interest in the absence of a challenge to the factual sufficiency of evidence.  Id. at 275.

          Applying the foregoing standard of proof to the facts of this case, I agree with the en banc majority that the facts are legally and factually sufficient to support the judgment below, including findings that appellant’s acts and omissions endangered V.V. and that termination of appellant’s parental rights is in V.V.’s best interest for the reasons stated in the majority’s opinion, which I adopt by reference.  See In re J.F.C., 96 S.W.3d at 266 (“In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”); id. (stating that, in factual sufficiency review, “the inquiry must be ‘whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.’ . . .  If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.”). 

          It necessarily follows that appellant’s original counsel’s failure to preserve the issue of insufficiency of the evidence of endangerment did not violate appellant’s due process rights and that his counsel’s performance did not, therefore, fall “below an objective standard of reasonableness,” so as to be constitutionally ineffective.  See In re J.O.A., 283 S.W.3d at 343; In re M.S., 115 S.W.3d at 549.  Having concluded that appellant failed to carry his burden of proving that his original counsel behaved unprofessionally, I would necessarily conclude that appellant has failed to show by “clear and convincing” evidence that “there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.”  In re M.S., 115 S.W.3d at 550. 

          In addition, I find it at least plausible that appellant’s trial counsel had a strategy in failing to include legal and factual sufficiency of the evidence of endangerment in his statement of points for appeal based on a reasonable professional conclusion that the facts were both legally and factually sufficient to support termination on that ground and that appeal on that ground would have been frivolous.  See In re M.S., 115 S.W.3d at 549 (requiring that court of appeals reviewing proof of first prong of Strickland must “indulge in the ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ including the possibility that counsel’s decision not to challenge factual sufficiency was based on strategy, or even because counsel, in his professional opinion, believed the evidence factually sufficient”); Bone, 77 S.W.3d at 836 (requiring, in case under Strickland, appellant to “prove by a preponderance of the evidence that there is, in fact, no plausible professional reason for a specific act or omission”).  He might also have had a reasonable strategy for not including in his statement of points the insufficiency of the evidence to support a finding that termination was in V.V.’s best interest—a claim he did include in his statement of points but which appellant’s newly appointed counsel finds frivolous.  See In re M.S., 115 S.W.3d at 549. 

          Because appellant failed to prove that his counsel’s actions deprived him of a trial whose result was reliable and because the evidence is, in my view, legally and factually sufficient to support findings both that appellant’s actions endangered the child and that termination is in the best interest of the child, I would hold that appellant’s trial counsel was not ineffective and that the trial court did not err in terminating appellant’s parental rights to V.V.

Conclusion

          I would affirm the judgment of the trial court terminating appellant’s parental rights.

                                                                   Evelyn V. Keyes

                                                                   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.

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[1]           I believe Texas Supreme Court review is appropriate to decide this issue.  See Tex. R. App. P. 56.1(a)(1), (2), (4)–(6).

[2]        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) (adopted by Texas Supreme Court for parental rights termination cases in In re M.S., 115 S.W.3d 534, 545 (Tex. 2003)).

[3]           Section 263.405(g) of the Family Code specifically provides for such an appeal. I would have found appellant’s counsel’s filing of a brief provided for by section 263.405(g) of the Family Code challenging the trial court’s frivolousness finding under section 263.405(d)(3) of the Code to be appropriate professional representation of appellant’s due process interests.

[4]           The file of which appellant’s appointed counsel complains judicial notice was improperly taken includes the affidavit of a case worker from the business records of the DFPS stating the circumstances under which V.V. was taken into the care of DFPS.  Texas Rule of Evidence 201 permits a court’s taking judicial notice of any “fact . . . not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”  Tex. R. Evid. 201.  This evidence is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” See id.