Can a child testify in a family law suit?

It is most often discouraged to have children serve as witnesses in a family law suit between the child’s parents. However, the Amarillo court of appeals recent decided a case that discusses the standards for securing pretrial testimony of a child for admission during a family law trial. There, the father filed a suit for modification and sought a court-order permitted him to take recorded testimony of the child for use at trial.  The trial court permitted the recorded testimony.  However, when the father sought to use and admit the recorded testimony, the trial court refused admission. Before a child’s recorded statement may be admitted into evidence, there must be a showing of competence at the time the testimony is given and a showing that an oath was given or some discussion had with the child about the issue of truthfulness. Father’s attorney failed to establish that the child knew to tell the truth and therefore the attorney failed to show the child is a competent witness. Thus, the court of appeals affirmed the trial court’s denial of admission of the child’s testimony. 

Nichol v. Nichol, ___ S.W.3d ___, 2014 WL 199652 (Tex. App.—Amarillo 2014, no pet. h.) (mem. op.) (1/15/14).

 

Deviation from standard possession requires special findings with special deadline

Whenever a trial court, after a nonjury trial, enters a possession schedule which deviates from the standard schedule, a party may request the trial court to enter special findings about the reasons for deviation from the standard order. However, those findngs must be requested within the time depcified by Texas Family Code sec 153.258, which is 10 days from the date of the hearing. If such findings are not requested within that time frame, the party waives the right to seek such findings on the special possession schedule. The effect is that the party will have a very difficult time challenging the discretion of the corut in entering the non-standard possession schedule if no findings exist.  On appeal, the trial court’s decision will be upheld on any ground available from the evidence, not just the ones the trial court would have put in the findings.

The Tyler Court of Appeals recently decided a case on this issue.  There, the trial court appointed mother and father as JMC and stated that father was to have possession of the child 14 days out of every 28. Mother filed for regular findings but did not timely request the non-standard possession findings under sec 153.258. Mother could not complain about the trial court’s failure to make those findings and waived her complaint.

Practice note:  It is very important that family lawyers be aware of this rule! If you try a case to judgment and one party is awarded a possession schedule that deviates from the standard schedule, you must file the request for findings 10 days after the hearing.  The rule is silent as to how to handle a situation where the trial court takes the case under advisement and issues a ruling more than 10 days following the hearing, but I would assume that the 10-days would start from receipt of the ruling, not the hearing. Please, trial lawyers, do not think that it is someone else’s problem.  You could very easily commit malpractice if the deadline to request these findings expires on your watch!

Pickens v. Pickens, 2014 WL _____________, 12-13-00235-CV (Tex. App.—Tyler 2014, no pet. h.) (02-28-14)

Has my marriage been a farce all of these years?

There is a strong presumption in Texas law in favor of marriage.  When a question arises as to the validity of a current marriage because of a prior marriage, the presumption says that the current marriage is the one that’s presumed valid. You would think there wouldn’t be very many cases on this issue, but I’ve actually seen a couple recently.  Here’s one of those:

In re A.M. is a case out of the Dallas Court of Appeals, released 12/16/13.  There, the husband (H2) argued that his marriage to Wife was void because Wife allegedly never divorced her prior husband (H1). In support, H2 provided documentation from two foreign governments showing no divorce between Wife and H1. Wife, however, provided a document, signed by H1, issued by an Islamic mosque in England reciting that Wife was “totally emancipated from the matrimonial relationship” with H1. Wife also provided a Pakistani divorce decree issued “in accordance [with] Mohammedan Law” which was also signed by H1. H2’s expert testified that H1’s alleged signatures to those documents were likely not genuine. Despite H1’s evidence to the contrary, the trial court found that Wife was divorced from H1 when she married H2—therefore the marriage between H2 and Wife was not void. Accordingly, the trial court granted the divorce between H2 and Wife and divided the community estate. H2 appealed.

The Dallas Court of Appeals held on to the fact that there was some evidence that the divorce between Wife and H1 happened. Since the trial court is the best judge of the credibility of the evidence, the trial court had discretion to believe Wife’s evidence and disregard H2’s evidence. Thus, the trial court properly disregarded the contradictory evidence in finding the prior marriage between Wife and H1 ended before the marriage to H2. “This presumption [in favor of the validity of the most recent marriage] is one of the strongest known to law; it is, in itself, evidence; and it may even outweigh positive evidence to the contrary.”

 

Supreme Court of Texas Clarifies Proof Required for Attorney's Fees

 

In an opinion delivered on October 25, 2013, City of Laredo v. Montano,the Supreme Court of Texas clarified an issue that is of importance across this State to clients and attorneys -- the proof required to support an award of attorney’s fees. Although attorney’s fees are not always awarded in family law cases, they are often requested especially in highly litigated cases. This opinion is something with which the family law community should be aware.

Here, the Court found that an attorney’s trial calculation of a “barebones minimum” estimate of 6 hours per week for 226 weeks as time worked on a case was not enough to support the $339,000 fee awarded. The Court noted that some weeks were surely more, and some were surely less. Because the record did not further explain that “6 hour” figure, it could not satisfy the standard required for an award of attorney’s fees. The Court also noted its “puzzlement” that the attorney made no records of time, prepared no bills, and “does not appear to have known how much he was owed … until the calculations at trial.”

While this case dealt with a fee-shifting statute under the Texas Property Code, it is instructive to attorneys and clients in family law cases. Attorneys should keep detailed billing statements of the work performed on each client’s case and use those statements when seeking fees in court. Clients, you should expect to receive monthly billing statements from your attorneys showing the work done on your case. If you can’t tell what was going on, you are likely going to have a hard time getting a judge to order the opposing side to foot the bill.

To read the City of Laredo v. Montano Opinion, click here: http://www.supreme.courts.state.tx.us/historical/2013/oct/120274.pdf

For more information on attorney’s fees awards in family law cases, read these related blog posts:  

http://www.dallastxdivorce.com/2013/07/articles/family-law-appellate-issues/texas-legislature-clarifies-ability-of-trial-court-to-award-attorneys-fees-in-a-divorce-in-response-to-tedder-v-gardner-aldrich-llp/;

http://www.dallastxdivorce.com/2013/02/articles/family-law-appellate-issues/oneil-attorneys-prevail-on-appeal-award-of-attorneys-fees-must-have-proper-legal-basis/;

http://www.dallastxdivorce.com/2012/09/articles/divorce/attorneys-fees-who-gets-them-and-when-part-1/

http://www.dallastxdivorce.com/2012/09/articles/hiring-a-lawyer/attorneys-fees-who-gets-them-and-when-part-2/

http://www.dallastxdivorce.com/2012/10/articles/divorce/attorneys-fees-who-gets-them-and-when-part-3/

http://www.dallastxdivorce.com/2012/10/articles/divorce/attorney-fees-who-gets-them-and-when-part-4/

 

Texas Legislature Clarifies Ability of Trial Court to Award Attorneys' Fees in a Divorce in Response to Tedder v. Gardner Aldrich, LLP

The Texas legislature has responded to the Texas Supreme Court’s recent and controversial opinion in Tedder v. Gardner Aldrich LLP, by enacting House Bill 1366 to clarify a trial court’s power to award attorney’s fees in a suit for divorce.   

The Tedder opinion made waves in the family law community by determining that attorney’s fees in a divorce are not necessaries (for which one spouse is typically liable for as support the other), thereby calling into question a trial court’s ability to award fees at all in a divorce. Judges and family law attorneys alike contemplated the potentially monumental impact this decision would have on cases going forward – some believing that the opinion completely eliminated a trial court’s ability to award attorneys’ in a divorce   

In the midst of this confusion, the Texas Legislature quickly came to the rescue, adding subsection (c) to Section 6.708 of the Texas Family Code, which provides that for all cases filed on or after September 1, 2013, trial courts across this State may award reasonable attorney’s fees in a suit for divorce: 

In a suit for dissolution of a marriage, the court may award reasonable attorney's fees and expenses. The court may order the fees and expenses and any postjudgment interest to be paid directly to the attorney, who may enforce the order in the attorney's own name by any means available for the enforcement of a judgment for debt.”

 While the statue is a step in the right direction, aspects of a party’s entitlement to attorney’s fees in a suit for divorce remain murky. The statue leaves the discretion to award fees with the trial court, so attorney’s fees awards are far from certain and must be determined on a case-by-case basis.  Also, it does not specify whether fees must be awarded from the community estate, leaving open the possibility for argument over whether fees can be awarded from a spouse’s separate estate (and the constitutional implications of divesting separate property).

Tedder v. Gardner Aldrich, LLP: Texas Supreme Court Holds Attorney Fees In Divorce Are Not Necessaries Under Spousal Support Statute

This ground breaking case out of the Texas Supreme Court could forever change the way attorney fees are requested, awarded, and recovered by law firms in Texas divorce proceedings by holding that legal fees incurred by a spouse in a divorce proceeding are not “necessaries” (food, clothing, essential medical care, habitation, etc.). This means that legal fees cannot be ordered as spousal support and the non-incurring spouse cannot be required to pay the other party’s attorney’s fees from their separate property.

In the underlying Fort Worth divorce, Husband sued Wife for divorce and custody of their children. Wife hired Law Firm to represent her in the proceedings. After the jury verdict, Law Firm sued both Wife and Husband for its fees. After a hearing, Husband and Wife agreed that the final decree would award Law Firm attorney fees against Wife only and would not award Wife attorney fees against Husband. The trial court rendered judgment in accordance with their agreement. Wife subsequently sought the protection of bankruptcy and was discharged. The trial court determined that Law Firm was not entitled to payment of fees from Husband. Law Firm appealed.

The court of appeals rendered judgment for Law Firm against Husband and Wife jointly and severally, holding that Husband was liable for Wife's Legal fees because the obligation was a "community debt," and the legal fees were "necessaries" for which Husband was liable to the firm.

The Supreme Court reversed, holding Wife’s legal fees were not a “community debt” for necessaries under the spousal support statue, thus Husband was not liable to pay Law Firm for legal services rendered to Wife. The Texas Supreme Court dispelled the long-standing notion of legal services in a divorce proceeding as necessaries for which the other spouse is statutorily liable to pay the attorney and clarified the often confused concept of “community debt”. Also, for attorneys trying to recover your fees from a nonpaying client, this case indicates that intervention in the divorce action is probably not the proper way to do it.

This is an important case for both family lawyers and their divorcing clients. It will receive a lot of attention in months to come and will be cited throughout court houses across this state.
 

When You Can't Appeal, Mandamus

What can you do if you lack an adequate remedy by appeal and the trial judge clearly misapplies the law in your case, violates your constitutional rights, or clearly abuses their discretion? As we discussed in my last blog, the remedy of a traditional appeal is not available to challenge rulings in all family law cases. A petition for writ of habeas corpus is only if a person’s liberty is restrained (which usually means jail). A petition for writ of mandamus in the court of appeals is your answer.

The burden is higher in a mandamus proceeding than in a direct appeal. To be entitled to relief, the “relator” (the party asking for a writ of mandamus) must show that the trial court violated a ministerial duty (like referring a case to arbitration when there is an existing arbitration order in place or refusing to enter an order after rendition of judgment), or that the trial court clearly abused its discretion. In both instances, the relator must also show that they lack an adequate remedy by appeal. Mandamus is also available to vacate a void order.

Most often in family law cases a petition for writ of mandamus is filed to correct a clear abuse of discretion by the trial court. The burden is high in these cases. On fact issues, the court of appeals cannot substitute its judgment for that of the trial court. This means that the relator must show that the trial court could reasonably have reached only one decision in order to prevail. For legal issues, the relator must establish that the trial court clearly failed to analyze or apply the law correctly.

Situations where petitions for writs of mandamus may be appropriate in family law cases include (1) incorrect rulings on standing and jurisdiction (under the UCCJEA or UIFSA), (2) appointment of a receiver in temporary orders, (4) change of the conservator with the right to designate the primary residence of a child in temporary orders, (4) certain discovery disputes, (5) and failure of the trial court to enter an order after rendition (the court’s oral ruling on the record). In these situations, given the issues at stake, it is often appropriate to request that the court of appeals enter an emergency stay prohibiting the trial court from taking any action to enforce or proceed with the challenged order until the court of appeals can decide the mandamus case.

Like a writ of habeas corpus, time is of the essence when it comes to a mandamus. Typically steps need to be taken immediately to try to prevent the trial court from acting on, enforcing, or otherwise proceeding with the order that you are challenging before irreparable damage is done to your family, your property, and/or your constitutional rights. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.
 

US Supreme Court Holds Return of a Child to a Foreign County Pursuant to an Order Issued Under the Hague Convention Does Not Render an Appeal Moot

Last week the US Supreme Court issued an initial opinion in Chafin v. Chafin, holding that the return of a child to a foreign country pursuant to an order under the Hague Convention on the Civil Aspects of International Child Abduction does not render an appeal of that order moot (meaning that the child’s father can now proceed with a full appeal of the trial court’s decision that allowed the child’s mother to return to Scotland). 

The underlying case involves an international child custody dispute between an America father and a Scottish mother.  Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent whose child is wrongfully removed to another country can file a lawsuit in that country seeking to have the child returned to her home country to resolve any custody disputes.   After divorce proceedings were initiated in Alabama (where father resided), mother filed a lawsuit in federal district court pursuant to the Hague Convention, asking that court to issue an order returning her daughter to Scotland.  When the district court ruled in her favor, the mother immediately left the country with her daughter.  When father attempted to appeal, the Eleventh Court of Appeals found his appeal to be moot since the child had already moved to Scotland – leaving father with no appellate remedies and no way to challenge the trial court’s order.   

So father sought relief from the Supreme Court. The Opinion issued on February 19, 2013 and authored by Chief Justice Roberts, determined that an appeal from an order requiring the return of a child to their home country under the Hague Convention is not moot simply because the child is returned to another country.  The Court explained that the case would be moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”  “As long as the parties have a concrete interest, however small, in the outcome of the litigation,” the Court continued, “the case is not moot.”  That standard is met in this case, according to the Court, because the parents “continue to vigorously contest the question of where their daughter will be raised.”  At this stage, the father is simply seeking the opportunity for “typical appellate relief” – a decision from the Court of Appeals reversing the trial court’s order allowing mother to take the child to Scotland. 

We will continue to monitor developments in this case in the Eleventh Court of Appeals and will provide an update to our readers.  This case has wide-reaching implications for anyone involved in an international custody dispute.  The decision of the trial court allowing a parent to take the child to a foreign country is not absolved of appellate review by mootness – like the father in Chafin, the losing party can pursue a full appeal. 

Here is the Supreme Court’s Opinion:  http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf 

Here is a link to a CNN article/clip:  http://www.cnn.com/2012/12/04/justice/court-custody

 

O'Neil & Attorneys Prevail on Appeal: Award of Attorney's Fees Must Have Proper Legal Basis

Last week the Dallas Court of Appeals issued its opinion in Shilling v. Gough, holding that the trial court erred by awarding attorney’s fees without a proper legal basis. Michelle May O’Neil and I represented Shilling in his successful appeal. 

In the underlying post-divorce proceedings, Shilling brought a suit to enforce an injunction contained in the parties’ divorce decree that prohibited his ex-wife, Gough, from disclosing his private information to third parties.  Gough filed an answer requesting attorney’s fees that failed to specify the statutory authority under which she sought recovery.   

The Dallas Court of Appeals reversed the trial court’s erroneous award of fees to Gough and rendered judgment in favor of Shilling.  The opinion reiterates the well-settled rule that -- absent a statute or contract -- Texas courts do not have the inherent authority to require the losing party to pay the prevailing party’s fees.  While Gough argued that she was entitled to fees under Chapter 9 of the Texas Family Code (which allows a party to enforce a property division contained in a divorce decree) and as sanctions, the Dallas Court of Appeals found (1) Chapter 9 is inapplicable because this was not an action to enforce a property division, and (2) an award of sanctions against Shilling under the circumstances of this case would  be improper and would violate his constitutional right to due process. With no appropriate contractual or statutory basis, the trial court’s judgment was improper. 

This opinion is important to vast area of post-divorce enforcement actions that we encounter as Texas divorce attorneys.  The Dallas Court of Appeals has clarified the power of a trial court to award attorney’s fees under Chapter 9 of the Texas Family Code and the requisite procedure for an award of attorneys fees as sanctions.

Read the Opinion by clicking here.

 

 

Dallas Court of Appeals Holds Attorney's Fees Must Be Segregated

In its July 11, 2012 opinion issued in In re B.N.L.-B., the Dallas Court of Appeals reversed the amount of attorney’s fees awarded to the Appellee Logan, remanding the matter to the trial court for further proceedings. Represented on appeal by Michelle May O’Neil, Appellant Aguirre successfully argued that the trial court erred in awarding fees because they were not properly segregated.

 

To recover attorney’s fees under Texas law, a party must segregate fees between claims for which fees can be recovered and claims for which they cannot. The party seeking to recover the fees has the burden of proof. If a trial court awards attorney’s fees based upon evidence of unsegregated fees it will be reversed on appeal.

 

 

Here, Logan failed to segregate her fees that the Court determined to be recoverable under a contractual agreement from those fees that were unrecoverable. Because she did not provide evidence of how the fees were segregated or delineated and because the record did not show how the trial court reached its decision as to the amount of fees awarded to Logan, the Dallas Court of Appeals sent this issue back to the trial court.

 

The principle of segregating fees is important in family law cases like B.N.L.-B. where there are multiple claims pending at one time (the trial proceedings in B.N.L.-B. included the registration of a foreign order, an enforcement action, and a suit affecting the parent-child relationship) and where there are more than two parties involved in a proceeding. 

Writ of Habeas Corpus Granted! Right to Jury Trial Violated

The Dallas Court of Appeals yesterday GRANTED two writs of habeas corpus that I filed on behalf of a Dallas family law client in a contempt/enforcement case on temporary orders.  The Dallas Family Court judge confined the client for alleged violations of several court orders to pay various amounts of money, even after payment was made.  The contempt orders failed to run the punishment on each separate count concurrently to all of the other counts, which violated the sacred right to a jury trial.  The client's trial lawyer demanded a jury trial and paid the required fee, but the Judge denied him that right.

The right to a jury trial in the United States remains inviolate.  A party is entitled to a jury trial in a criminal or quasi-criminal case (such as a contempt proceeding, even in a civil court) when the possible punishment could exceed a total for all counts of 6 months in jail and a total of $500 fine on all counts.  When a case will have a period of confinement of less than 6 months and fine of less than $500 it is considered a "petty" offense, for which a jury trial is not an option.  However, when the punishment exceeds that limited amount, the allegations are considered "serious" and invokes the right to jury trial.

The Dallas Court of Appeals stated, "The orders signed by the trial court did not clearly state that the jail terms imposed by the court were to be served concurrently.  Accordingly, relator was sentenced to more than 6 months in jail and was entitled to a trial by jury".  As a result the Dallas Court of Appeals granted the writs of habeas corpus in favor of relator, released him from confinement (he has been out on bond), and vacated the orders made the basis of the commitment.  This decision by the Court of Appeals attaches jeopardy, which is a legal concept that prohibits retrying a person for alleged violations where the court of appeals finds the law was violated in the first trial.

Read the full opinion at Legale.

Appellate Lawyers are the Chess Club of the Law World

Kendall Gray wrong in his blog The Appellate Record that "appellate lawyers are the chess club of the law world."  The most common function of an appellate lawyer is to bring issues of legal error to an appellate court after a trial.  An appellate lawyer keeps his "law focus" to every issue of a trial.  It is never too soon, says Gray, to consult an appellate lawyer.

A great trial lawyer once said, if you can't tell your story in one Big Red Indian Chief Tablet with a number two pencil, then you're sunk.  The appellate lawyer can help with the filter that reduces the room full of documents to the Big Red Indian Chief Tablet -- based on the law in the law library.

As with other areas of law, the family law appellate lawyer can help get a case ready for trial.  The family law appellate lawyer can handle disputes over legal issues so the trial lawyer can focus on the fact issues.  The family law appellate lawyer can draft motions, briefs, or even the jury charge to fine-tune the really important legal issues.  The family law appellate lawyer can advise the trial lawyer as to what parts of the case really matter, and what can be left on the editing room floor.

Not all cases can justify the expense of a family law appellate lawyer, but in the right case, she can be an invaluable part of the team.

Hat Tip to Kendall Gray for his post Appellate Lawyers:  Why We're in the Library.

Lawyer Fined For Wrong Case Citation

Lawyer Fined $100 for Getting a Case Citation Wrong
From the ABA Law Journal
By Debra Cassens Weiss

A Wisconsin lawyer has been fined $100 for getting a citation wrong in a brief submitted to the Wisconsin Court of Appeals.

The appeals court expressed its frustration in a footnote to an unpublished opinion, Espitia v. Fouche, Legal Blog Watch reports. The court imposed the penalty and explained the reason for it in a footnote to a 2008 unpublished opinion, Espitia v. Fouche. Here is the entire footnote:

Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce." The cite provided is "Buellesbach v. Roob, 2005 AP 160 (Ct.App.Dist.I)." Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding photographer. Also, "2005 AP 160" is the docket number, which we discovered only after reaching a dead end at 2005 WI App 160, 285 Wis.2d 472, 702 N.W.2d 433. At last we located the unpublished case that addresses the subject matter for which counsel cited Buellesbach: Stansfield Vending, Inc. v. Osseo Truck Travel Plaza, LLC, 2003 WI App 201, 267 Wis.2d 280, 670 N.W.2d 558. Different name, different citation, different district (District IV) but, as promised, unpublished. It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate. A $100 penalty is imposed against Espitia's counsel. See Hagen v. Gulrud, 151 Wis.2d 1, 8, 442 N.W.2d 570 (Ct.App.1989).
The lawyer cited an unpublished case that supposedly upheld a stipulated damages clause in a vending machines contract. But a search for the case based on the name provided by the lawyer turned up a misrepresentation case brought by newlyweds against a wedding photographer.

The cite wasn’t helpful, either. It was listed as “2005 AP 160,” which sent the appeals court to 2005 WI App 160 and another “dead end,” the footnote said. When the court finally found the real case—which had an entirely different name—it learned “2005 AP 160” was the docket number.

“Different name, different citation, different district (District IV) but, as promised, unpublished,” the court said in the footnote.

The lawyer who will have to pay the fine wasn’t identified.

 

Statement of Points Unconstitutional As Applied Says Texas Supreme Court

Texas Family Code requirement of filing a Statement of Points in a government termination case within 15-days of the signing of the final order is unconstitutional as applied when it bars parents from raising an ineffective assistance of counsel claim. In Re J.O.A., ___ S.W.3d ___, 2009 WL 1165303, 52 Tex. Sup. Ct. J. 714 (Tex. 2009) (5/1/09)

Facts: Mother, with one child already, gave birth to twins in 2005. At that time, mother and children tested positive for cocaine. Court appointed TDFPS as SMC of all three children. TDFPS created a service plan that parents did not adequately follow. In 2/07, case proceeded to bench trial. Trial court terminated both parents’ rights to the twins and appointed mother’s mother as SMC of older child. On 2/21/27, mother’s counsel filed notice of appeal and motion to withdraw. On 2/22/07 father’s counsel did same. Neither filed a statement of points as required by TFC § 263.405. Trial court appointed replacement counsel after the fifteen day deadline set out in TFC § 263.405(b). Parents appealed, claiming ineffective assistance of counsel and insufficiency of the evidence. Appellate court reversed and remanded on the termination of father’s parental rights, declaring TFC § 263.405 unconstitutional for blocking consideration of parent’s ineffective assistance claims. TDFPS appealed appellate court’s ruling.

Held: Modified and remanded to trial court.

Texas Supreme Court Opinion: TEXAS FAMILY CODE § 107.013(a)(1) grants a right to counsel in parental termination cases. The right to counsel is the right to effective counsel. Trial counsel’s failure to preserve error is examined under the procedural due process standard. Matthews v. Eldridge, 424 US 319, 335 (1976). The court weighs 1) private interests; 2) governmental interests and; 3) the risk of erroneous deprivation of parental rights. The court then balances the result against a presumption of constitutionality. Pursuant to In re M.S., 115 S.W.3d 534, this analysis heavily favors allowing review in parental termination cases. Due process consideration prohibit waiver of a complaint due to error by counsel. Since father’s counsel’s failure to file a statement of points fell below an objective standard of reasonableness, and since TEXAS FAMILY CODE § 263.405(i) requires waiver as a result of counsel’s error, TEXAS FAMILY CODE § 263.405(i) is unconstitutional.

Concurrence (Willett, J.): Trial courts should take steps to prevent intentional ineffective assistance of counsel. Possible steps include 1) issuing unambiguous instructions after trial setting out steps to preserve appeal; 2) reminding trial counsel that they still have duties after trial and; 3) punishing attorneys who commit ineffective assistance of counsel.

Dallas family lawyer are aware that the constitutionality of the statement of points requirement in government termination cases has been questioned thoroughly over the past couple of years. The courts of appeals have conflicting determinations on the issue. The Texas Supreme Court has multiple cases pending on the issue as well. JOA does nothing to resolve the issue with any permanency. JOA declares the statement of points statute unconstitutional as applied in this case. Here father’s trial attorney failed to timely file the statement of points and since father actually had a meritorious appellate issue on insufficiency of the evidence to support termination of his rights, the trial attorney was found to be ineffective for the failure, thus causing reversal of the termination. An ineffective assistance of counsel claim has two prongs, not only that the attorney failed in some duty owed, but also that the underlying claim would have been meritorious but for the attorney’s failure.

Texas Lawyer reporter John Council interviews Michelle May O’Neil regarding the Texas Supreme Court’s recent opinion in J.O.A. case.
 

Constitutionality of Termination Law -- Video Interview

Today I was interviewed by Katie Award winning reporter John Council with Texas Lawyer Magazine about the In re JOA opinion issued recently by the Texas Supreme Court for the Video Blog Reversed and Remanded.  Seriously, you should go look at the video -- CLICK HERE.  (I wish I had worn a different shirt!)

The Texas Supreme Court declared Texas Family Code section 263.405(b) unconstitutional as applied in this case. 

263.405 requires a parent appealing the termination of his parental rights by the government (Family Protective Services) to file within 15 days of the signing of the termination order a Statement of Points detailing exactly the issues to be addressed in an appeal. What happens when the lawyer for the parent fails to timely do so?  The law says the parent cannot appeal.

In re JOA holds that, where the trial court lawyer fails to file the statement of points, the appellate court is not precluded by the statute from considering whether the trial court lawyer's failure rises to the level of ineffective assistance of counsel requiring reversal of the termination. To prove a claim for ineffective assistance of counsel, the party must show, not only that the lawyer's actions were deficient (example, failing to file the Statement of Points) but also that the failure was somehow harmful (example, if the lawyer had filed the SOP, the appeal would have been meritorious).  Where, as in JOA, the claim for ineffective assistance of counsel was well-founded, 263.405's prohibition against the trial court from hearing the appeal violates the terminated parent's constitutional right of due process.

This has been a controversial issue in family law appeals since the law was passed.  The various courts of appeals in the state have disagreed over the intersection of the Statement of Points requirement with the United States Constitution.  Now, we have a decision, at least as to these facts.