in the Interest of S. J., A. J., I. J., and I. J., Children ( 2009 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00043-CV ______________________________



IN THE INTEREST OF S.J., A.J., I.J., AND I.J., CHILDREN

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On Appeal from the 76th Judicial District Court Titus County, Texas Trial Court No. 33101

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jonathan and Jasmane Jeffery appeal from the termination of their parental rights to S.J., A.J., I.J., and I.J. They contend that the trial court abused its discretion by failing to appoint, upon a finding of indigency, separate trial counsel for each parent.

I. Contention of the Parents

The contention is that the father and mother had an inherent conflict of interest regarding their legal defenses to the allegations made by the Department of Family and Protective Services (Department) in its effort to terminate their rights. In short, Jasmane was accused of using marihuana and cocaine, and of stealing to pay for her habit when she had no other way to obtain the illegal substances and accused of negligently supervising her children at times when she was allegedly seeking additional drugs.

Jonathan faced no such accusations and tested negative for all illicit substances in several drug screens. The evidence showed that he continued to attempt to get his wife into rehabilitation, and he stated numerous times that he wanted the family to be reunified. He opposed her drug use, and there was evidence that he demanded that Jasmane not engage in such activities around the children. Further, he did not live with Jasmane and the children during the entire pendency of this case. As grounds for terminating his parental rights, the trial court found that Jonathan knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, engaged in conduct or knowingly placed the children with persons who endangered them, and failed to comply with the provisions of a court order to have the children returned from the Department. Neither parent argues that the evidence is insufficient or that counsel was ineffective.

II. Standard of Review

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority different than an appellate judge does not demonstrate such an abuse. Holtzman v. Holtzman, 993 S.W.2d 729 (Tex. App.--Texarkana 1999, pet. denied) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)).

III. The Procedure

The Jefferys are indigent. Lori Chism was originally appointed as counsel to represent both parents. At the final permanency hearing, on September 11, 2008, she informed the trial court that she desired to be removed from the case

I'm asking to be let off this case and to appoint somebody else to represent the parents. They have not been satisfied with my representation. And they have both yelled at me today, and I have tried and tried and tried. And, Your Honor, we're not making any progress.

The court then appointed another attorney who was present, Charles Cobb, to represent both parents. Counsel stated he wanted to make it clear that he had represented Jasmane Jeffery in a different matter in another court, but that he was aware of no conflict. The court then asked the parties if there was "any conflict between the two of you that would cause you to need different lawyers in this thing?" Both answered "no." The court then directed a trial date to be set, and ultimately recessed the proceeding. The trial on the merits was conducted February 12, 2009.

IV. Preservation of Error

The principal case addressing this issue is In re B.L.D., 113 S.W.3d 340 (Tex. 2003). The court pointed out that in a suit filed by a governmental entity Section 107.013(a)(1) of the Texas Family Code requires a court to appoint counsel to an indigent parent who opposes termination of his or her parental rights. Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon 2008). The court stated:

In a termination suit against two parents, both may be entitled to appointed counsel. In that circumstance, the statute provides that if "the court finds that the interests of the parents are not in conflict, the court may appoint a single attorney ad litem to represent the interests of both parents." Id. § 107.013(b). The statute therefore implicitly provides that indigent parents who face termination of their parental rights in the same suit are entitled to nonconflicted counsel.

B.L.D., 113 S.W.3d at 346.

The Texas Family Code also provides that indigent parents who are defendants in the same termination lawsuit are entitled to nonconflicted counsel. Tex. Fam. Code Ann. § 107.013(b) (Vernon 2008). If the court finds the interests of the parents are not in conflict, the court may appoint an attorney to represent their interests. In deciding whether there is conflict between parents opposing termination in a single lawsuit requiring separate counsel, the trial court must determine whether there is a substantial risk that counsel's obligations to one parent would materially and adversely affect his or her obligations to the other parent. B.L.D., 113 S.W.3d at 343; see In re K.M.H., 181 S.W.3d 1, 11 (Tex. App.--Houston [14th Dist.] 2005, no pet.) (analyzing possible conflict in context of an ineffective assistance of counsel claim).

A major distinction in this case and B.L.D. is that in B.L.D. the parents sought separate trials as a remedy for a conflict of interest between them. They did not demand separate counsel, but sought the separate trials as a way to remedy the conflict that existed. The appellate court found their motion sufficient to make the trial court aware of the nature of their complaint, and thus sufficient to preserve their complaint regarding a right to nonconflicted counsel by their motion for separate trials. B.L.D., 113 S.W.3d at 344-45. The court also noted that it did not condone the notion that separate trials could have remedied counsel's own ethical obligation to avoid a conflict of interest in his joint representation. Id. at 346.

In the present case, error was not preserved. Neither party perceived a conflict between them, and counsel was aware of only one possibility of a conflict having to do with the mother's criminal proceeding in which he was representing her. The court asked the proper questions, and the information received did not apprise the trial court of any possible conflicts of interest. No complaint was ever brought to the trial court's attention about the joint trial or about Cobb's representation of both mother and father. Counsel is thus now in the position of arguing that we should consider a claim of error that has not been preserved for our review.

The complaint is constitutional in nature. However, constitutional rights may be waived depending on the nature of the right, and in B.L.D., the Texas Supreme Court discussed preservation in the context of parental rights termination cases. The court recognized that termination cases implicate fundamental liberties, thus requiring compliance with procedural due process.

As discussed above, this Court's precedents establish that our procedural rules bar review of unpreserved error except in very narrow circumstances. We have followed this rule when other constitutional rights are at stake. See, e.g., Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841, 845 (Tex. 2002) (per curiam) (concluding that court of appeals correctly held that litigant waived constitutional claim by not raising it at arbitration); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (refusing to consider constitutional open-courts claim that was not preserved in trial court). Moreover, we have declined to review unpreserved complaints even when a parent's constitutional interests are implicated. See Sherry, 46 S.W.3d at 861.

B.L.D., 113 S.W.3d at 352.

Ultimately, the court concluded, after balancing various interests and considering the purposes of the rules and statutes involved, that error must be preserved even in parental rights termination cases, and that when not preserved, the court of appeals errs by considering such a claim. Although not directly on point, as the type of error alleged was charge error, the principles discussed in B.L.D. illustrate that the constitutional dimension of this proceeding does not necessarily outweigh the procedural preservation requirements.

V. Conclusion

We conclude that before this claim may be raised on appeal, the complaint must have been brought to the attention of the trial court. See Tex. R. App. P. 33.1. In this instance, no objection or request was made that would have put the court on notice that any problem existed, and when the court raised the matter before appointing Cobb, consent was unanimous. It further does not appear that any conflict requiring separate counsel was ever brought to the attention of the trial court, and the court was never asked to order either separate trials or to appoint separate counsel. Under these circumstances, we find that the issue was not preserved for appellate review.

We affirm the judgment.

Jack Carter

Justice

Date Submitted: July 15, 2009

Date Decided: July 16, 2009

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00090-CV

                                                ______________________________

                                                     IN RE:  DAVID W. NIENAS

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

            While incarcerated, David W. Nienas sued two Texas Department of Criminal Justice employees for “willful theft of [his] legal work.”  Nienas claims that he filed the following pleadings:  “a motion for ‘Attorney to Show Authority,’” “Rebuttal Response to Defendants[’] Motion to Quash Service,” “‘objection’ to a decision made by the Honorable Judge . . . where she denied my request for the trial to be by jury,” “Rebuttal Response to Defendants[’] Original Answer and Jury Demand,” “Amended Rebuttal Response to Defendants[’] Original Answer and Jury Demand,” “Amended Motion for Attorney to Show Authority,” and a “Rebuttal Response to Defendants[’] Motion to Dismiss Pursuant to Chapter 14.”  He alleges that despite several letters to the trial court and “motion[s] for hearing,” no hearings on his motions have been set. Nienas brings this pro se petition for writ of mandamus asking us to compel the trial judge “to have a hearing to address all motions.”  

            Mandamus is an extraordinary remedy that issues only to correct a clear abuse of discretion or violation of a duty imposed by law when no other adequate remedy by law is available.  State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding).  Due to the nature of this remedy, it is Nienas’ burden to properly request and show entitlement to mandamus relief.  See generally Johnson v. Fourth Dist. Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

            Consideration of a motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987).  However, Nienas must show that the trial court received, was aware of, and was asked to rule on the motion.  In re Grulkey, No. 14-10-00450-CV, 2010 WL 2171408, at *1 (Tex. App.––Houston [14th Dist.] May 28, 2010, orig. proceeding) (mem. op.) (per curiam) (citing In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.––Amarillo 2003, orig. proceeding)). All but two of Nienas’ handwritten pleadings fail to contain a file-stamp mark indicating that they were filed. There are no envelopes or other indication in the record that the trial court actually received these pleadings.

            Only two of the pleadings, a rebuttal response to defendants’ motion to quash service and amended motion for attorney to show authority bear February 1, 2010 and March 8, 2010, file-stamp marks, respectively.  However, “[f]iling something with the district clerk’s office does not mean the trial court is aware of it; nor is the clerk’s knowledge imputed to the trial court.”  Id. (citing Villarreal, 96 S.W.3d at 710 n.2); see also In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.––Texarkana 2008, orig. proceeding) (“Showing that a motion was filed with the court clerk does not constitute proof that the motion was brought to the trial court’s attention or presented to the trial court with a request for a ruling.”).

            In order to demonstrate the trial court’s knowledge of all of the pleadings, Nienas attaches letters addressed to the district clerk and trial judge urging the court to rule.  These letters also fail to contain any file mark, or other proof that they were sent. Because Nienas cannot meet his burden to demonstrate the trial court received, was aware of, and was asked to rule on his pleadings, we must deny his petition for writ of mandamus. 

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          September 14, 2010

Date Decided:             September 15, 2010