Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Anderson Law Firm : TX Child Support & Custody Issues

Dallas Family Law Attorney Michelle May O'Neil was cited in an article published today in the Texas Lawyer news magazine.  The article entitled Toddler Tug of War:  Mother and Couple at Odds in Parental Rights Termination Case by John Council discusses a case pending in the Houston 1st Court of Appeals seeking to terminate a mother's parental rights when the baby was secreted from the mother by the father and unknowingly placed with a prospecitve adoptive family.  The case turns on the question of whether the prospective adoptive family's ability to provide a better environment for the child than the mother should play a role in determining whether the termination of mother's rights is in the child's best interest. 

From the article:

Michelle May O'Neil, a family lawyer and partner in Dallas' O'Neil Anderson, believes the 1st Court's decision may ultimately boil down to Jordan's "fundamental right to parent."

"The rights of a parent are constitutional. A parent has a liberty interest in establishing a home for their children and in raising their children. And the government can only interfere in that parent's rights when there are certain adequate reasons," O'Neil says. "For example, if CPS [Child Protective Services] has to take a child from a parent, they have to prove some sort of abuse."

Neither Jordan's mental health history nor her economic situation should figure into a court determination to end her parental rights, O'Neil says.

"Mentally ill people have a right to be parents. The government only has the right to interfere in parental relationships if there is abuse to the child," O'Neil says. "And you can be mentally ill and not abuse your child. One does not equate to the other."

"The question cannot be the quality of the family that the child is placed with," she adds. "The question in a termination proceeding is whether it's in the best interest of the child that the biological parent's right be terminated."

Ann Crawford McClure, a justice on El Paso's 8th Court of Appeals who is a past president of the State Bar of Texas Family Law Section, agrees with O'Neil. Texas courts require a higher burden of proof in parental rights termination cases than in normal family law cases, McClure says.

The Dosseys "have to prove by clear and convincing evidence that it's in the best interest of the child. The courts have been clear that you can't weigh lifestyle in that determination," McClure says. "You can't look at an adoptive family and say they are better off financially and can provide opportunities that the mother can't in determining the best interest of the child."

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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.
 

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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.

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Senate Bill 1838 was signed into law by Governor Perry yesterday.  The new law authorizes the court to order termination of the parent-child relationship if the court finds clear and convincing evidence that the parent has been convicted of a criminal attempt to the murder or criminal solicitation to murder the other parent of the child.

Under current law, the Family Code does not address the issue of parental rights when one parent commits the crime of criminal solicitation of murder against the child's other parent. 

The new law amends Texas Family Code Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP. It authorizes the court to order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has been convicted of, attempted murder or solicitation of murder Under sectiosn 15.01 and 15.03 of the Texas Penal Code, or under similar laws of other states, countries or the military law.  

This law is effective September 1, 2009.

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