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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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.