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

Dissenting opinion issued ___ 2010

Dissenting opinion issued September 23, 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

DISSENTING OPINION

          The en banc majority reviews the father’s legal sufficiency challenge to the trial court’s finding on endangerment before discussing his ineffective assistance of counsel complaint.  Because of the procedural posture of this case, we may not review a sufficiency challenge to the endangerment finding outside of our review of the father’s ineffective assistance of counsel issue.  I agree with much of Justice Jennings’s reasoning and analysis, and approve of his disposition, but it ought to be reached solely via review and grant of the father’s first issue.

The Family Code[1] “bars an appellate court from considering any issue not presented to the trial court in a timely filed statement of points.” See In re J.O.A., 283 S.W.3d 336, 341 (Tex. 2009).  Here, the court below found the father to have “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.”[2]   Nevertheless, no separate and discrete challenge to the legal sufficiency of this endangerment finding was included in the father’s statement of points.[3]

In re J.O.A., however, provides a limited exception to section 263.405(i), permitting appellate review of a claim for ineffective assistance of counsel not raised in the statement of points, when the claim involves due process concerns—in that case, the deprivation of the parents’ right to challenge the sufficiency of the evidence.  Id. at 343.  Here, the father has raised such a claim—alleging that his trial counsel’s failure to raise a sufficiency challenge to the court’s endangerment finding in the statement of appellate points constituted ineffective assistance because it denied the father the right to challenge this finding.  Review of the father’s complaint regarding the deprivation of his right to effective assistance of counsel based on his counsel’s failure to preserve a sufficiency challenge to the endangerment finding is therefore proper.

We may not, however, reach a sufficiency challenge on appeal that has not been raised in a statement of points as an independent issue.  In re J.O.A. does not hold that, once trial counsel is shown to have rendered ineffective assistance, the appellate court may then consider any issues raised on appeal regardless of whether they were raised in the statement of points.  Nor did In re J.O.A. decide any sufficiency complaints as distinct issues from the ineffective assistance of counsel claim.  Rather, In re J.O.A. simply held that an appellate court may consider a complaint of ineffective assistance of counsel, even when not raised in the statement of points, when the complained-of ineffective assistance was the failure to preserve a sufficiency complaint for appellate review, because such failure rose to the level of a due process violation.  Id. at 343, 347. 

The In re J.O.A. court analyzed the viability of the sufficiency complaints to determine whether the parents met their burden to show prejudice from their counsel’s failure to include a sufficiency complaint in the statement of points.  It did not review the parents’ separate complaints of legal or factual sufficiency, nor did it authorize direct appellate review of such sufficiency challenges in termination cases when not raised in the statement of points. 

Some courts of appeals have construed an initial summary sentence in In re J.O.A.—in which the supreme court states that it “agree[s] with the court of appeals that section 263.405(i) is unconstitutional as applied when it precludes a parent from raising a meritorious complaint about the insufficiency of the evidence supporting the termination order”—as permitting direct appellate review of any complaint of legal or factual sufficiency raised on appeal in a termination case, even if the complaint is not raised in the statement of points.  See, e.g., In re E.H., No. 02-09-134-CV, 2010 WL 520774, at *2, n. 3 (Tex App.—Fort Worth February 11, 2010, no pet.) (mem. op.) (quoting In re J.O.A., 283 S.W.3d at 339); also In re G.K., No. 09-08-00506-CV, 2009 WL 2616926, at *2 (Tex App.—Beaumont August 27, 2009, no pet.) (mem. op.) (same).

Despite the rather broad language, such an interpretation is not justified in the context of the facts, procedural posture, and actual analysis and holding of In re J.O.A .  Our sister court in In re A.B., discussed this matter in detail and noted this language, but rejected a suggestion that “J.O.A. eliminates the need to comply with 263.405” as to any complaints regarding the sufficiency of the evidence.  In re A.B., No. 10-09-00137-CV, 2009 WL 3487790, at *1 (Tex. App.—Waco October 28, 2009, no pet.) (mem. op.).  Rather, it explained, In re J.O.A. is an ineffective assistance of counsel case holding only that an ineffective assistance of counsel claim may be raised when there is a failure to file a statement of points by trial counsel which precludes the appellate court from considering a meritorious claim regarding insufficiency of the evidence.  Id. at *2.  The Waco court, after determining that trial counsel was not ineffective, held that any sufficiency complaint had to be set forth in a statement of points in order to be reviewed on appeal.  Id. at *5.   Because the appellant did not list his sole issue on appeal—a challenge to the legal sufficiency of the evidence—in a statement of points, the Waco court held that nothing was presented for its review.  Id.

This Court has likewise has not construed In re J.O.A. to do away with the requirement under section 263.405(i) that sufficiency complaints must be listed in a statement of points in order to be reviewable on appeal, but has instead read In re J.O.A. as providing an exception permitting the raising of an ineffective assistance of counsel issue even though that complaint was not included in a statement of points.  See Hyatt v. Dep’t of Family and Protective Servs., No. 01-09-00159-CV, 2009 WL 3400992, at *2, and n. 5 (Tex. App.—Houston [1st Dist.] October 22, 2009, no pet.)  (mem. op.).[4]  The Texas Supreme Court has very recently described its holding in J.O.A. consistently with our interpretation, discussing the procedural facts in J.O.A., and then stating

We held that by precluding the parent from complaining on appeal of ineffective assistance of counsel in those circumstances, section 263.405(i) violated due process.  We further held, based on a full record, that the parent had been denied effective assistance because his appellate issue, insufficiency of the evidence, would have required reversal had it been included in a timely filed statement of appellate points.

In re B.G., No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (footnotes omitted).

Until the present case, our Court has never reviewed an independent complaint of legal insufficiency of the evidence in a termination appeal governed by section 263.405(i) when such an issue was not raised in the statement of points.

As noted by Justice Keyes in her concurring opinion, the Texas Supreme Court has explained how an appellate court should conduct a review for prejudice in an ineffective assistance of counsel complaint alleging the failure to preserve a sufficiency complaint for appellate review, stating

[t]he appellate court will conduct such a review to determine harm as if . . . sufficiency had been preserved, under our established . . . sufficiency standard in parental-termination cases, understanding that the evidentiary burden in such cases is “clear and convincing.”   

In re M.S., 115 S.W.3d 534, 550 (Tex. 2003) (reviewing complaint of ineffective assistance of counsel for failing to preserve complaint of factual sufficiency for appellate review).  In other words, to determine whether an appellant is harmed by his counsel’s failure to preserve a sufficiency complaint, an appellate court reviews the sufficiency of the evidence under the normal sufficiency standards.  Such a review mirrors the direct review of a sufficiency issue, but is not actually an independent review of a sufficiency challenge as a discrete issue.

          And this is what the Supreme court did in J.O.A.  It did not directly review an independent sufficiency issue not raised in the statement of points, nor did it expand the appellate courts’ authority to directly review sufficiency complaints not raised in the statements of points. Rather, it reviewed the sufficiency of the evidence as part of its analysis of the prejudice prong of the ineffective assistance of counsel claim.  See In re J.O.A., 283 S.W.3d at 344.   

 Accordingly, while I agree with Justice Keyes’s characterization of the sufficiency of the evidence to support the termination as the “linchpin,” as to the endangerment finding, I agree only to the extent that it pertains to a showing of prejudice from the trial counsel’s failure to preserve a sufficiency complaint on appeal as to that finding.  I certainly do not believe that we may reach and decide a legal sufficiency complaint not raised in the statement of points independent of a review of an ineffective assistance of counsel claim for not preserving such a complaint, as does the en banc majority opinion.  Along with Justice Jennings, I believe the evidence to be legally insufficient, but, because it was not listed in the statement of points, we may not reach the legal sufficiency issue independently on appeal.  I would neither review that issue nor grant relief on it. In re M.S. dictates the proper review to be conducted; accordingly, I would review the father’s ineffective assistance complaint, hold that he has shown that he was prejudiced by his counsel’s failure to include a legal sufficiency challenge on endangerment in the statement of appellate points because the evidence was legally insufficient to support the trial court’s finding on endangerment, and then grant relief as to that issue. 

As explained by the court in In re M.S., if the appellate court “finds that the evidence to support termination was factually insufficient” and counsel’s “failure to preserve a factually sufficient complaint was unjustified and fell below being objectively reasonable, then it must hold that counsel’s failure to preserve the factual sufficiency complaint . . . constituted ineffective assistance of counsel” and should “reverse the trial court’s judgment, and remand the case for a new trial.” In re M.S., 155 S.W.3d at 550.  The Supreme court’s remedy for ineffective assistance of counsel for failing to preserve a meritorious complaint of factual sufficiency for appellate review was thus the same as if it had reached and reviewed a complaint on appeal of factual insufficiency of the evidence.

  Here, trial counsel failed to file a statement of appellate points that would have allowed us to reach a meritorious legal sufficiency complaint, a complaint which, had we been able to reach on appeal, would have resulted in a rendition in favor of the father. Accordingly, although there is no direct authority governing the remedy for such ineffective assistance of counsel in the context of parental rights termination cases, surely the proper remedy is the same as the father would have received had a legal sufficiency issue been raised in the statement of points and we had been able to review it on appeal—a reversal of the judgment and rendition in favor of the appellant.  Cf. id.; In re D.J.J., 178 S.W.3d 424, 432 (Tex. App.—Fort Worth 2005, no pet.) (applying remedy that would be applicable if counsel had properly preserved legal sufficiency claim in manner complained of by appellant); see also In re B.G., 2010 WL 2636050 at *5 (holding that when denial of due process caused appellant’s issues not to be reached on appeal because of late-filed statement of points, remedy was for court of appeals to consider issues raised in statement of points as if it had been timely filed).

Accordingly, I would grant the father’s ineffective assistance of counsel issue, reverse the portion of the judgment terminating the father’s rights, and render judgment that his parental rights are not terminated.  

                                                                   Jim Sharp

                                                                   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.

Justice Massengale, concurring, joined by Justices Alcala and Hanks.

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[1]               Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008).

[2]               Id. § 161.001(1)(E) (Vernon Supp. 2010) (providing that court may order termination of parent-child relationship if court finds by clear and convincing evidence that parent has “engaged in conduct or knowingly placed the child with persons who engage in conduct which endangers the physical or emotional well-being of the child[.]”).

[3]               In the statement of points, trial counsel raised a single sufficiency point, asserting that there “is no evidence to support the court’s finding that termination of the Respondent’s parental rights is in the best interest of the child.”  This point is not sufficiently specific to preserve the father’s contentions on appeal that the evidence is legally and factually insufficient to support the trial court’s finding that he violated family code section 161.001(1)(E). See Tex. Fam. Code Ann. § 263.405(i) (requiring that issues be “specifically presented” in statement of points); In re J.J.R., 302 S.W.3d 436, 443–44 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that points that stated that there was “no evidence to support the ruling,” and there was “factually . . . [and] legally insufficient evidence to support the ruling on both grounds for termination and on best interest,” were not sufficiently specific to preserve challenge to sufficiency of evidence to support finding of violations of specific provisions of family code, although it did preserve challenge to sufficiency of evidence as to court’s “best interest” finding).

[4]               The Fourteenth Court has held likewise applied In re J.O.A.  See In re C.W. Jr., No. 14-09-00306-CV, 2009 WL 4694946, at *2 (Tex. App.—Houston [14th Dist.], December 10, 2009, no pet.) (mem. op.) (holding that reviewing court could not consider complaints that evidence was legally and factually insufficient to support termination because there was no timely statement of points raising such issues, but reviewing ineffective assistance of counsel complaint not raised in statement of points because of holding in In re J.O.A.).