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.