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

Concurring 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 RE V.V., a minor child

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 2006‑10410J

CONCURRING OPINION

          I join the opinion of the en banc court in its entirety.  I write separately for the limited purpose of emphasizing that the now-vacated panel opinion unnecessarily departed from the governing precedent of In re M.S.,[1] which established the Texas state-law standard for ineffective‑assistance‑of‑counsel claims arising from proceedings in Texas state courts to terminate parental rights under the Texas Family Code.  The standard adopted by the Texas Supreme Court in M.S. is fully adequate to resolve this case without the expansion of Texas family law proposed by the dissenters.

In addressing the question of what standard applies to an ineffective‑assistance claim arising from the appointment of counsel in a parental‑rights termination case pursuant to section 107.013(a) of the Family Code,[2] the Court held that because the standard announced in Strickland v. Washington[3] “is well‑established and fairly straightforward and places a sufficiently high burden on the movant to prove ineffective assistance of counsel . . . it is the standard that should apply.”[4]  The Court described the Strickland standard in terms of a two‑pronged inquiry, requiring a showing of both deficient performance by counsel and resulting prejudice to the client.[5]

Through M.S. and its progeny,[6] the Texas Supreme Court has instructed that we review the ineffective‑assistance claim presented in this case by applying Strickland’s two‑pronged test of ineffectiveness and prejudice.  Instead of following that precedent, the analysis of the panel opinion skipped the prejudice prong and instead “presumed” prejudice on the facts of this case, relying upon United States v. Cronic.[7]  That case, decided on the same day as Strickland, addresses Sixth Amendment scenarios in which the assistance of counsel has been actually or constructively denied “altogether.”[8]  By applying Cronic’s one‑step ineffectiveness‑only standard, instead of Strickland’s two‑step ineffectiveness‑plus‑prejudice standard, the panel opinion diluted a standard which the Texas Supreme Court expressly chose, in part, because it ensured “a sufficiently high burden on the movant to prove ineffective assistance of counsel.”[9]

Regardless of whether a Cronic‑style analysis may be justified in an appropriate termination case, that issue is not presented by this case, which can be appropriately resolved within the Strickland framework.  The dissenters address the following issues relating to the performance of the biological father’s trial counsel:

1.       failed to bench warrant the father to trial, and failed to put his motion for continuance, based on his need to secure the father’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 the caseworker or to call any witnesses or offer any evidence on the father’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 the father had endangered the child.

These instances of action (e.g. oral motion for continuance and invalid objection at trial) and inaction (e.g. failures to object) are repeatedly characterized by the dissenters as the “failures” of counsel that, in their view, amounted to a “constructive denial” of counsel.

The presumption of prejudice and the application of Cronic were entirely unnecessary because the panel’s opinion nevertheless performed the second step of a Strickland analysis without identifying it as such. This analysis of the trial proceedings (1) identified a specific instance of counsel’s ineffective performance, and (2) determined that the father was prejudiced as a result.  The panel’s opinion concluded that the father was prejudiced by counsel’s failure to include a legal‑sufficiency challenge in his statement of appellate points, because, in their view, the evidence was legally insufficient to support a termination of parental rights pursuant to section 161.001(1)(E) of the Family Code.  There was no reason to presume prejudice because the panel found prejudice.

There is no reason to resort to Cronic when Strickland will do.  The United States Supreme Court said as much in Bell v. Cone,[10] an 8‑1 decision issued in 2002. The Bell Court noted that in Cronic itself the case was remanded for reconsideration under the Strickland factors.[11]  However, Bell also acknowledged that Cronic recognized “three situations implicating the right to counsel that involved circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’”[12]  Those situations are as follows:

1. “complete denial of counsel”—“A trial would be presumptively unfair . . . where the accused is denied the presence of counsel at ‘a critical stage,’” i.e., “a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused.”[13]

2. “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”[14]

3. “counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected”—E.g., Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932).[15]

The Court in Bell focused on the second Cronic scenario, in which counsel “entirely fails” to subject the prosecution’s case to meaningful adversarial testing[16]—just as the dissenters in this case characterize the representation received by the father.  With respect to that category of cases, the Court said:

When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.  We said “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.”  Cronic, supra, at 659, 104 S. Ct. 2039 (emphasis added).  Here, respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points.  For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.[17]

The reasoning of Bell has been relied upon by at least one other Texas court to reject an invitation to apply Cronic.[18]  As explained above, the panel could have employed the Strickland standard to analyze the effect of counsel’s failure to include legal sufficiency of the evidence in the statement of appellate points.

The panel’s resort to Cronic analysis was both unauthorized by the governing precedents and unnecessary given the adequacy of the governing precedents.  As most aptly put by the opinion of our en banc majority, “Having adopted the Strickland standard in parental termination cases, it is the Texas Supreme Court that should reject it when it proves unworkable.”

                                                                   Michael Massengale

                                                                   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]               115 S.W.3d 534 (Tex. 2003).

[2]               Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2009) (“In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in opposition to the termination . . . .”).

[3]               466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

[4]               In re M.S., 115 S.W.3d at 545 (quoting with approval L.W. v. Dep’t of Children & Families, 812 So. 2d 551, 556 (Fla. Dist. Ct. App. 2002), overruled on other grounds by S.B. v. Dep’t of Children & Families, 851 So. 2d 689, 691 (Fla. 2003) (holding that a party in a Florida proceeding to adjudicate child dependency has no right to a collateral proceeding questioning the performance of appointed counsel)).  The petitioner in M.S. alleged that her attorney failed to provide competent representation both during and after the termination proceedings, in violation of her right to due process of law.  Id. at 543.  The Texas Supreme Court implicitly declined the invitation to analyze the ineffective-assistance issue in constitutional terms, addressing it instead in terms of the statutory right bestowed by the Family Code.  Id. at 544.  This approach is consistent with principles of judicial restraint, including the avoidance of unnecessary constitutional questions.  See, e.g., VanDevender v. Woods, 222 S.W.3d 430, 432 & n.5 (Tex. 2007) (“Judicial restraint cautions that when a case may be decided on a non‑constitutional ground, we should rest our decision on that ground and not wade into ancillary constitutional questions.”).  Like M.S., this case need not and should not be decided on constitutional grounds.

[5]         In re M.S., 115 S.W.3d at 545 (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).

[6]               See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (“An ineffective assistance of counsel claim . . . requires more than merely showing that appointed counsel was ineffective.  There are two elements to the Strickland standard, and, under the second, the defendant must show that counsel’s ‘deficient performance prejudiced the defense . . . that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064)); In re B.G., No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (same).

[7]               466 U.S. 648, 104 S. Ct. 2039 (1984).

[8]               Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (citing Cronic, 466 U.S. at 659 & n.25, 104 S. Ct. at 2047 & n.25 (“The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.”)).

[9]               In re M.S., 115 S.W.3d at 545.

[10]             535 U.S. 685, 122 S. Ct. 1843 (2002).

[11]             Id. at 695, 122 S. Ct. at 1850.

[12]             Id. (citing Cronic, 466 U.S. at 658–59, 104 S. Ct. at 2047).

[13]             Id. at 695–96, 122 S. Ct. at 1851 (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047).

[14]             Id. at 696, 122 S. Ct. at 1851 (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047).

[15]             Id. at 696, 122 S. Ct. at 1851 (citing Cronic, 466 U.S. at 659–62, 104 S. Ct. at 2047–48).

[16]             Id. at 686, 122 S. Ct. at 1846.

[17]             Id. at 696–97, 122 S. Ct. at 1851; see also Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 562 (2004) (characterizing Cronic as a “narrow exception” to Strickland that will be “infrequently” applied, and emphasizing that the Cronic presumption of prejudice applies in “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified” (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at 2046)); Cannon v. State, 252 S.W.3d 342, 349–50 (Tex. Crim. App. 2008) (applying Cronic under circumstances in which “defense counsel declared that he was ‘not ready for this trial,’ that he would ‘be unable to effectively represent [his] client,’ that he could, therefore, ‘not participate’ in the trial,” and then “declined to participate in jury selection, declined to enter a plea for his client, declined to make an opening or closing argument to the jury, declined to cross-examine any of the State’s witnesses, declined to make any objections, declined to offer any defense, declined to request any special jury instructions, and declined to offer any evidence or argument with respect to punishment”).

[18]             Allen v. State, No. 03-08-00315-CR, 2009 WL 2341830 (Tex. App.—Austin July 29, 2009, pet. ref’d) (mem. op., not designated for publication) (applying Strickland analysis to ineffective-assistance claim when trial counsel allegedly induced defendant to stipulate to charged conduct).