in the Interest of A.B. and K.M.B., the Children ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00362-CV
IN THE INTEREST OF A.B. AND
K.M.B., THE CHILDREN
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
Appellant D.B. (Father) appeals the trial court’s order terminating his
parental rights to his children, A.B. and K.M.B. In two issues, Father argues that
the trial court violated his due process rights by erroneously instructing him about
his Fifth Amendment privilege against self-incrimination and that his trial counsel
was ineffective. We will affirm.
II. BACKGROUND
The Department of Family and Protective Services (DFPS) conducted an
investigation after receiving a referral in February 2010 regarding the children.
Concerned about allegations of domestic violence, a previous conviction by
Father involving child abuse, and K.B.’s (Mother) mental health, DFPS filed its
petition for protection, for conservatorship, and for termination in suit affecting the
parent-child relationship. The trial court subsequently appointed DFPS
temporary managing conservator, placed the children with their maternal
grandmother, and ordered both Father and Mother to perform a service plan.
During a scheduled visit with the children at a CPS office, a DFPS
employee observed that Father had an erection while bouncing then ten-month-
old K.M.B. on his lap. Shortly thereafter, during another scheduled visit with the
children, a DFPS employee reported that she thought Father had inappropriately
touched then eight-year-old A.B. on her chest. A.B. confirmed the employee’s
concern when A.B. told prosecutors investigating the allegations that Father had
touched her chest. At the time of the termination trial, Father was incarcerated
pending trial for the offense of indecency with a child by contact.
Pleased with Mother’s performance of her service plan, the trial court
ordered a monitored return of the children to Mother and later severed DFPS’s
suit against Mother from the action against Father. At the termination bench trial,
in the course of discussing DFPS’s plan to call Father as a witness, the trial court
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explained the following to Father regarding his Fifth Amendment privilege against
self-incrimination:
I did research further that issue since our last discussion and
am left with the firm conviction that the current state of the law is that
while there is no Fifth Amendment privilege to refuse to answer all
written discovery questions that may be propounded in a civil case
and those Fifth Amendment assertions must be made on a question-
by-question basis, that the same principle does not apply to
testimony at the time of trial; that is, it’s an all-or-nothing proposition.
You either testify and answer all questions or you invoke your Fifth
Amendment privilege and answer no questions. [Emphasis added.]
Father informed the trial court the next day that he did not want to testify, and the
trial court did not require Father to take the stand. The trial court terminated
Father’s parental rights to the children, finding by clear and convincing evidence
(1) that Father had knowingly placed or knowingly allowed the children to remain
in conditions or surroundings that endangered their physical or emotional well-
being; (2) that Father had engaged in conduct, or knowingly placed the children
with persons who engaged in conduct, that endangered the children’s physical or
emotional well-being; (3) that Father had failed to comply with the provisions of a
court order that specifically established the actions necessary for Father to obtain
the return of the children; and (4) that termination of Father’s parental rights to
the children was in the children’s best interests.
III. FIFTH AMENDMENT
In his first issue, Father argues that the trial court erred and violated his
due process rights by instructing him that he “either testify and answer all
questions or you invoke your Fifth Amendment privilege and answer no
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questions.” DFPS responds that the trial court’s instruction was incorrect but that
Father failed to preserve error.
A party may invoke his Fifth Amendment privilege against self-
incrimination in a civil proceeding if he reasonably fears that the answer sought
might incriminate him. United States v. Balsys, 524 U.S. 666, 671–72, 118 S. Ct.
2218, 2222 (1998); In re Speer, 965 S.W.2d 41, 45 (Tex. App.—Fort Worth 1998,
orig. proceeding). However, unlike in criminal proceedings, blanket assertions of
the privilege are impermissible—the privilege must be asserted on a question-by-
question basis. Murray v. Tex. Dep’t of Family & Protective Servs., 294 S.W.3d
360, 366 (Tex. App.—Austin 2009, no pet.); Speer, 965 S.W.2d at 46; see Cuba
v. State, 905 S.W.2d 729, 733 (Tex. App.—Texarkana 1995, no pet.) (explaining
that accused in criminal proceeding who testifies waives right against self-
incrimination and may be cross-examined on whole case). A termination
proceeding is a civil proceeding for purposes of the privilege against self-
incrimination. Murray, 294 S.W.3d at 367.
Here, the trial court should have required Father to take the stand and
assert his Fifth Amendment privilege on a question-by-question basis. However,
Father never objected to or otherwise contested the trial court’s inaccurate
instruction. Consequently, Father failed to preserve this issue for appellate
review. See Tex. R. App. P. 33.1(a)(1), (2); Bushell v. Dean, 803 S.W.2d 711,
712 (Tex. 1991) (op. on reh’g). We overrule Father’s first issue.
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IV. INEFFECTIVE ASSISTANCE
In his second issue, Father argues that his trial counsel was ineffective for
failing to object to the trial court’s inaccurate Fifth Amendment instruction.
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
Parents are entitled to effective counsel at a termination proceeding. In re M.S.,
115 S.W.3d 534, 544–45 (Tex. 2003).
Father’s argument fails under the second Strickland prong because he has
not shown that there is a reasonable probability that the trial court would not have
terminated his parental rights to the children had he testified.1 Father filed a
motion for new trial, but he did not raise ineffective assistance, and there is no
record of a hearing at which he detailed what his testimony would have consisted
of had he testified, nor is there any other source in the record from which we can
glean what Father would have testified about. Also, Father does not challenge
the trial court’s conclusions of law that he knowingly placed or knowingly allowed
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There is no requirement that we approach the two-pronged inquiry of
Strickland in any particular order, or even that we address both components of
the inquiry if the defendant makes an insufficient showing on one component.
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
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the children to remain in conditions or surroundings that endangered their
physical or emotional well-being; that he engaged in conduct, or knowingly
placed the children with persons who engaged in conduct, that endangered the
children’s physical or emotional well-being; or that he failed to comply with the
provisions of a court order that specifically established the actions necessary to
obtain the return of the children. Without any idea of Father’s testimony, and in
light of the unchallenged conclusions of law supporting the trial court’s order, we
are unable to conclude that there is a reasonable probability that the result of the
termination proceeding would have been different had Father testified.
Accordingly, we overrule Father’s second issue.
V. CONCLUSION
Having overruled both of Father’s issues, we affirm the trial court’s order
terminating Father’s parental rights to A.B. and K.M.B.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: June 21, 2012
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