Joe Lewis Valencia v. Department of Family and Protective Services

Opinion issued July 29, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00345-CV

IN RE V.V., A minor child

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 2006-10410J

EN BANC OPINION

On November 7, 2006, a child was born with opiates in her system.  J.V., her putative father, was in jail and not married to the mother, so the state assumed her conservatorship.  Testing later confirmed that J.V. is her father. With the child never having left state care, the Department of Family and Protective Services (“DFPS”) sought to terminate the father’s parental rights, on the ground that he had placed the child in danger.  The trial court agreed, and terminated the parental rights of the father to this child.

The father appealed, contending that the evidence is insufficient to support the trial court’s decision, and that his trial court counsel was incompetent. A panel of our court reversed the trial court and rendered judgment in favor of the father.  The panel held that the father’s conduct did not support a finding that he had endangered his child.  In an alternative holding, the panel also decided that trial counsel’s performance was so deficient that the father was wholly deprived of counsel, and that the father need not show that it was counsel’s deficiencies, instead of the father’s own conduct, that caused the trial court to terminate his parental rights.

But a parental termination case does not confer the right to parent—rather, it adjudicates its forfeit in the absence of any parenting.  The father here has not provided care for (nor even inquired to DFPS about) this child.  He is a parent in the biological sense only.  DFPS twice moved for rehearing en banc, and the panel twice revised its opinion, thus mooting the en banc request.  DFPS moved for en banc consideration for the third time. Concluding that the case warranted en banc review, a majority of our court has voted to reconsider this case. See Tex. R. App. P. 49.7.  We hold that the evidence supports the trial court’s finding of endangerment. We therefore affirm the decree terminating the parent-child relationship between the father and the child.  We further hold that, because the father has made no showing that the outcome of this case probably would be different save for his counsel’s performance, as is his burden, the father’s claim does not support reversal for ineffective assistance of counsel.

We withdraw the panel’s March 25, 2010 opinion, substitute this opinion in its place, and vacate the panel’s March 25, 2010 judgment.

Background

At V.V.’s birth, both she and her mother tested positive for opiates, and the mother told a caseworker that the father of the child was in jail for robbery. Four days later, on November 11, 2006, DFPS sued for the protection of the child and for conservatorship.  DFPS also sought a paternity test of the child’s father.  If he could not or would not reunite with his child, then DFPS asked that the trial court terminate his parental rights to the child.  Constables served the father with the lawsuit and citation in the Harris County Jail.  The father did not appear at the adversary hearing later that day because he was incarcerated.

The trial court appointed an attorney ad litem for the father of the child until paternity was established, in January 2008, when the father appeared in court, and agreed to take a paternity test.  The attorney ad litem, now acting as the father’s appointed trial counsel, filed an answer on the father’s behalf.  Meanwhile, the child’s mother decided to voluntarily relinquish her parental rights to the child.

The Trial

The case proceeded to a non-jury trial on April 9, 2008.  The father’s trial counsel informed the trial court that the father was in jail, and he asked the trial court for a bench warrant and a continuance to secure his client’s attendance at the trial.  The trial court denied counsel’s request. DFPS then called its caseworker as a witness.

Counsel for DFPS asked the caseworker about how the child came into state care. Before the witness answered, the trial court stated that it would take judicial notice of the court’s file, including “the affidavit that describes the reason the child was taken into care.”^[1]  Counsel made no objection.  Thereafter, the caseworker testified that DFPS placed the child with a relative’s family for foster care, and that the family was meeting the child’s physical and emotional needs.  She explained that the father was in jail when this case began, and that constables personally had served him in November 2006.  The caseworker recounted that her first contact with the father was in January 2008 when he appeared in court and agreed to a paternity test.  The father made no contact with DFPS after testing confirmed that he is the father of the child.  The father has not made any attempts to check on his daughter’s welfare. She has never been in his care.

The caseworker testified that the father had an extensive criminal record. The DFPS offered documents proving the father’s criminal record into evidence, without objection.  These records show criminal convictions for: unauthorized use of a car (twice), theft from a person, driving while intoxicated (twice), evading arrest, criminal assault, and felony theft (twice).  In addition, the father was charged with aggravated robbery, but the state eventually dismissed this charge due to a missing witness.

Days before the trial in this matter, the father assaulted the child’s mother. The state charged him with criminal assault on a family member, and DFPS offered a copy of the resulting criminal charge, without objection.  DFPS also offered photos, identified by the caseworker as reflecting the father’s assault of the mother.  The father’s counsel objected to this proffer:  “Judge, object, goes to the criminal side.”  The trial court overruled this objection.

The caseworker further testified that the father has no relatives to care for the child and that he had not bonded with the child.  The child had resided with her current family for at least 14 months before the trial.  This family has provided a “very stable” environment for the child and she has “very much” bonded with them.  The caseworker opined that it was in the best interest of this child to remain in the care of her placement family; and it was not in the child’s interest to reside with her father.  Finally, the caseworker testified that the father had engaged in conduct that endangered this child, and that the father’s parental rights should be terminated because the father had 10 years of repeated criminal history, and had assaulted the child’s mother.

The father’s trial counsel did not cross-examine the caseworker, who was the only witness at trial.  The reporter’s record of the trial transcript is 5 pages, plus 38 pages of exhibits evidencing the father’s criminal convictions and other charged offenses.

In its termination order, the trial court found that the father had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers pursuant to § 161.001(1)(E) of the Texas Family Code.” See Tex. Fam. Code. Ann. § 161.001(1)(E) (Vernon Supp. 2009) (“The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence . . . that the parent has . . . engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]”). As required, it further found that terminating the father’s parental rights was in the child’s best interest. See id. § 161.001(2) (Vernon Supp. 2009).  The trial court also terminated the mother’s parental rights in accord with her voluntary relinquishment of those rights.

Post-Trial Events

Trial counsel moved for a new trial and filed a statement of appellate points, a request for findings of fact and conclusions of law, and a notice of appeal. The trial court did not file findings or conclusions, and trial counsel never filed a notice of past due findings of fact and conclusions of law.  See Tex. R. Civ. P. 297.  In his new trial motion, trial counsel contended that his “oral motion for continuance to allow [the father] to be brought over from the Harris County Jail should have been granted.”  In his statement of appellate points, trial counsel contended that the trial court had erred in denying the father the right to testify because he was available to do so; that the evidence is legally and factually insufficient to support the trial court’s termination finding; and that a trial without the attendance of the father violated the father’s due process rights. The trial court denied the new trial motion, appointed the father’s trial counsel as his appellate counsel, and found the appeal frivolous.

Trial counsel subsequently filed the father’s appellate brief in this court, in which he argued that the trial court erred in deciding that this appeal is frivolous, and he asked our court to review the complaints he asserted in the trial court in the father’s motion for new trial.  After reviewing the record and trial counsel’s appellate brief, a panel of this court concluded that the father’s appeal is not frivolous, and that the briefing was inadequate.  The panel struck trial counsel’s brief as inadequate, and abated this appeal with a request to the trial court that it appoint new counsel.  The panel ordered new briefing including, if appropriate, a challenge to the effectiveness of trial counsel’s assistance.

Child Endangerment

The father argues that no evidence in the record supports the finding that he engaged in conduct that endangered the physical or emotional well being of the child.  We disagree. The record—sparse though it is—reveals the father’s assault on the child’s mother days before the parental termination hearing, his bad choices leading to repeated imprisonment, his wholesale lack of parenting beyond the moment of conception, and a child left in the care of the state at birth because the father was in jail and the mother had ingested opiates during the pregnancy.  The child was born with opiates in her system, and her mother later voluntarily relinquished her own parental rights.  In ruling a parenting forfeit, the trial court reasonably credited the evidence of the parenting void in this child’s life and the father’s inability to safeguard the child’s physical and emotional well-being.  A lack of all contact with a child without any proffered excuse and no effort to ensure her safety—coupled with multiple episodes of incarceration and an assault on the mother—is legally sufficient to support a termination finding based on endangerment.  An infant who is not looked after by either of her parents, as this one was not, undeniably is in serious danger of physical and emotional injury.  Settled authorities have upheld termination based on endangerment in these circumstances.  Our citizenry accords parental rights “only to those fit to accept the accompanying responsibilities.”  In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see also Tex. Fam. Code Ann. § 153.001 (a)(2) (Vernon 1999) (“The public policy of this state is to . . . provide a safe, stable, and nonviolent environment for the child.”).

Standard of Review

A parent’s right to the companionship, care, custody, and management of his child is a constitutional interest.  Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000).  Thus, clear and convincing evidence must support a trial court’s decision to terminate a parent’s rights.  In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002).  We review that evidence in a light favorable to the trial court’s finding of termination, and we assume that the trial court resolved disputed facts in favor of its finding if such an assumption is reasonable.  Id. at 266.  Clear and convincing evidence is the measure of proof that firmly convinces the fact finder of the truth of the allegations sought to be established.  See Tex. Fam. Code Ann. § 101.007 (Vernon 2008).

Legal Sufficiency

The trial court found that the father had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child.”  See id. § 161.001(1)(E).

Intentional criminal activity that exposes a parent to incarceration is conduct that endangers the physical and emotional well-being of a child.  Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (“[I]mprisonment is certainly a factor to be considered by the trial court on the issue of endangerment.”); Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (evidence of father’s commission of numerous robberies was relevant to endangerment determination); Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ) (parent’s past criminal conduct, before and after child’s birth relevant to showing of inability to parent).^[2]

In Boyd, the father of the child was in jail at the child’s birth.  727 S.W.2d at 533.  He saw the child eight months later upon his release on parole, lived with her for 5 months, and then returned to jail for burglary.  Id.  The evidence was “vague, at best” as to whether he ever supported the child.  Id.  He was not married to the mother, and no adjudication of paternity took place until the termination hearing.  Id. at 532.  Reversing the court of appeals, the Texas Supreme Court concluded that such evidence can support a termination finding based on endangerment.  Id. at 533.  The Court expressly disagreed with the court of appeals’ conclusion that danger under section E “cannot be inferred from parental misconduct.”  Id. It can.

Boyd’s vitality continues unabated.  Last year, relying heavily on its principles, the Texas Supreme Court reversed the court of appeals in J.O.A., and found the evidence legally sufficient to support the trial court’s termination of the father’s rights based on endangerment without any bad conduct directed toward the children involved.  In re J.O.A., 283 S.W.3d 336, 345–46 (Tex. 2009).  It did so because: (1) the father “had a history of domestic violence” toward the mother and had admitted to marijuana use, and (2) he was incarcerated on criminal charges that were later dismissed. Id. at 346.  It did so despite the father’s efforts, after DFPS involvement, to improve:  engaging in supervised visits with his children, securing steady employment, and completing parenting classes.  Id.  In J.O.A., the high court reaffirmed the principle in Boyd that “endangering conduct is not limited to actions directed toward the child.”  Id. at 345 (quoting Boyd, 727 S.W.2d at 533).

Here, the father has an extensive criminal history. He was incarcerated in the Harris County Jail in November 2006 at the time the child was born and when DFPS removed the child two days later and sued to terminate his parental rights.  He was incarcerated when the final hearing terminating his parental rights took place.  While the record in this case does not disclose drug use, it reveals the same irresponsible choices that deprived this child of a parent:  repeated criminal conduct leading to incarceration before and after the child’s birth, and—worse than the father in J.O.A.—no effort to care for his daughter when not incarcerated. Four of this father’s eight convictions are for felonies, and his offenses include assault and other crimes against the person.  A life of crime—based on the number of crimes, the frequency of their commission, and repeated incarcerations over a decade—is evidence from which a reasonable fact finder could infer endangerment to a child committed to the offender’s care. While not conduct directed at his child, such conduct is clear and convincing support for the trial court’s termination decision based on the ground of endangerment because this conduct placed his infant child in jeopardy.  J.O.A., 283 S.W.3d at 347; Boyd, 727 S.W.2d at 533–34 (“endanger” under Section E means to jeopardize the emotional or physical well-being of a child); see also In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (criticizing court of appeals for failing to account for father’s pattern of conduct that is “inimical to the very idea of child-rearing,” including conduct displaying criminal proclivities and fact that father had seen child only twice).

The dissent discounts Boyd and the cases that follow it and rejects their applicability to these facts by isolating imprisonment as never the sole factor supporting endangerment.  In rejecting the trial court’s reliance on the father’s criminal history to support a finding of endangerment, the dissent rejects the principle that a criminal record can support such a finding, much as the court of appeals in Boyd did.  The dissent here does so with more evidence of bad conduct (domestic violence) and less evidence of contact with the child (none).  It is here that the dissent departs from pronouncements that we are duty bound to obey.  This case is more similar to Boyd than different:  it involves imprisonment and other factors, too, namely:  (1) the father has not inquired about or supported the child or made any effort to see to her needs, and (2) he assaulted the child’s mother two weeks before the hearing, leading to his incarceration, this time for domestic violence.

The dissent strains against the record to infer that no evidence exists to allow for a finding that the father did not care for or check on the welfare of the child during the entirety of her life—albeit tacitly conceding that he did not do so in the months after he received the results of the paternity test.  Such an interpretation does not view the evidence in a light favorable to the fact finder, who saw the questioning of the witness and heard the words spoken, words that were not date restricted.  See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).  The record shows: 

[Counsel]: He knows he is the father, and since then has he

made any contact with the Agency?

[Washington]: No, he has not.

[Counsel]: And has he made any attempts to check on the

welfare of the child?

[Washington]: No, he has not.

          The trial transcript, now incorporated into the dissent, bears this out:  the father has not made any attempt to check on the welfare of this child.  Because the child has been in DFPS custody since she was two days old, the father could have had contact with the child only by contacting DFPS.  This evidence permits a reasonable inference that the father has had no contact with the child. 

          Other record evidence, not included in the dissent, further supports this conclusion.  The child has not been in the father’s care since her birth.  The criminal records, admitted into evidence as exhibits without objection, demonstrate the father’s incarceration while the child was in state-arranged foster care, including his arrest for domestic assault on the child’s mother on March 29, 2008, just days before the April 9 final hearing in this case.  Similarly, the affidavit of Charis Heiskell, which contains facts that the trial court judicially noticed without objection, describes a child referred to state care at birth because both she and her mother “tested positive for Opiates” and the father was “in jail for robbery.”

The dissent discounts the father’s criminal assault on the mother and his arrest for that conduct, conduct that landed him in jail at the time of the termination hearing, by observing that the father had been charged with the offense but not yet convicted.  Contrary to the dissent’s view, evidence of an assault does not lose all legal significance to a trial court because the parental termination case comes ahead of the criminal trial.  Texas courts routinely consider evidence of parent-on-parent physical abuse in termination cases without specifically requiring evidence that the conduct resulted in a criminal conviction.  See, e.g., In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.) (observing that evidence showed that father beat child’s mother while she was pregnant); Allred, 615 S.W.2d at 805 (reciting that father physically abused mother); see also In re K.L.R., 162 S.W.3d 291, 305 (Tex. App.—Tyler 2005, no pet.) (stating that, in modification proceeding, evidence of parent’s pending charges is admissible to determine best interest of child); In re M.R., 975 S.W.2d 51, 55 (Tex. App.—San Antonio 1998, pet. denied) (holding same in conservatorship proceeding).^[3]  The trial court reviewed and considered photographs that displayed the mother’s injuries.  We must assume that they support its findings because the father does not assign their consideration as error, the trial court overruled the father’s objections to their consideration, and no party made them part of the appellate record.  See In re D.A.P., 267 S.W.3d 485, 487 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Generally, absent a complete record of the proceedings, reviewing courts must presume that the evidence before the trial judge was adequate to support the decision.”). 

None of the excuses for abandoning this infant girl—confinement in jail, inadequate notice of impending fatherhood, insufficient assistance from the DFPS—overcome the fundamental truth that the father’s conduct placed this infant in danger.  The father has never seen the child, paid support, or made any arrangements to provide her with food, clothing, shelter or care.  He has spent a good deal of his adult life engaging in criminal activity or incarcerated.  These facts and his assault against the mother days before the hearing were before the trial court.  They reflect conduct that jeopardizes this child’s physical and emotional well-being.^[4]  All are reasons that other courts have upheld termination.  We reject the father’s contention that the evidence does not support a finding of endangerment.  We hold that the evidence sufficiently supports the trial court’s firm conviction that this father engaged in a course of conduct that endangered the physical and emotional well-being of the child.  See Tex. Fam. Code Ann. § 161.001(1)(E); Boyd, 727 S.W.2d at 531.

Child’s Best Interest

The father also challenges the legal and factual sufficiency of the trial court’s finding that the child’s best interest is served by terminating the father’s rights.  In determining the best interests of a child, courts examine:  (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual; (6) the plans for the child by the parent and the individual seeking custody; (7) the stability of the home; (8) the parent’s acts or omissions that indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions.  Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).  The Holley factors are not exhaustive; some listed may not apply, while others not included on the list may also be appropriate.  C.H., 89 S.W.3d at 27.

Applying these factors, we observe that the child was about a year and a half old at the time of the trial and thus was too young to testify about her desire, but it is undisputed that she has not bonded with her father because he has not taken care of her since her birth.  See In re B.M.R., 84 S.W.3d 814, 820 (Tex. App.—Houston [1st Dist.] 2002, no pet.). In contrast, she was “very bonded” with her foster family, and had lived there since she was four months old.  The father’s frequent incarceration leaves the child without a stable environment and without any reliable source for food, clothing, shelter, and emotional support.  The trial court also reasonably could have inferred that the father’s consistent, and at times violent, criminal conduct would put a child in his custody in emotional and physical danger now or in the future.  The father’s pattern of conduct calls into question whether he is capable of parenting.  The father has not attempted to seek information about his daughter’s well being, let alone reunification with her, save for one appearance in the trial court in which he agreed to take a paternity test.  Even after those results confirmed he was the father, he did not inquire about the child or seek to care for her, though free from jail at the time.  Instead, he had an altercation with the child’s mother and stood accused of criminally assaulting her.  The father has not contacted DFPS or sought services that might assist him in improving his parenting skills.  The father offered no excuse for his behavior at trial.

In challenging the sufficiency of the evidence of the child’s best interest, the father notes that the trial court did not determine whether the child had any special needs, whether the opiates in her system injured her development, and whether DFPS made any effort to contact paternal relatives to care for the child.  This ignores the caseworker’s testimony that the child is in a kinship placement and is doing well.  We conclude that legally and factually sufficient evidence supports the trial court’s finding that termination was in the best interest of this child.

Effective Assistance of Counsel

The father further contends that he is entitled to a new proceeding because his trial counsel’s performance was so patently deficient that he was denied any meaningful assistance of counsel.  The Texas Family Code requires the appointment of counsel to represent an indigent parent who opposes the termination of his parental rights.  Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2009).  The Texas Supreme Court has held that this statutory right to counsel “embodies the right to effective counsel.”  In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).

According to the father, counsel’s performance was so deficient that it was tantamount to having no lawyer at all and therefore triggers a presumption that it changed the outcome of the case.  See Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984); United States v. Cronic, 466 U.S. 648, 654–55, 104 S. Ct. 2039, 2044 (1984).^[5]  Our dissenting colleagues agree with this position.  Our concurring colleague sides with the DFPS’s position that this record does not dictate that counsel offered unreasonable representation given the facts presented. 

We do not review claims of trial error in a vacuum.  Rather, we must examine the entire record and determine whether the error caused an improper judgment.  See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069 (in determining whether prejudice resulted from the deficient performance of counsel, “a court . . . must consider the totality of the evidence before the judge or jury”); Tex. R. App. P. 44.1 (reversible error in a civil case requires the court of appeals to conclude that the error complained of probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals). The standard of review for evaluating ineffective assistance claims in parental termination cases bears this out.

Standard of Review

In evaluating claims of ineffective assistance of counsel in civil parental-rights termination cases, we begin with  the standard set forth by the United States Supreme Court for criminal cases in Strickland v. Washington.  M.S., 115 S.W.3d at 544–45 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  Under the Strickland standard, a parent must show both that (1) his attorney’s performance was deficient and fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced his defense.  Id. at 545; Strickland, 466 U.S. at 684–87, 104 S. Ct. at 2063–64.

Prejudice and the Second Prong

In its parental termination jurisprudence, the Texas Supreme Court has focused on Strickland’s second prong, holding that an ineffective assistance of counsel claim “requires more than merely showing that appointed counsel was ineffective.”  J.O.A., 283 S.W.3d at 344.  The parent must also show that “counsel’s deficient performance prejudiced the defense.”  Id. (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).  To show prejudice, the parent “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  In this context, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id.

Here, the father makes no attempt to demonstrate that counsel’s inadequacy caused the trial court to make the wrong decision. Instead, he emphasizes the brevity of the trial transcript of his parental-rights termination trial, and that trial counsel:  failed to secure the father’s attendance at the trial, and failed to object when the trial court took judicial notice of facts in its file, to object to some of the criminal records DFPS offered that were not authenticated, to properly object to the introduction of evidence of the father’s assault on the mother, and to cross-examine the caseworker or to offer any evidence on behalf of the father.

Based on these factors, he suggests that we presume error and ignore the second prong of Strickland.  We decline the father’s invitation.  The Cronic case, upon which the father relies for support for his suggestion, is at one end of the continuum of Strickland cases.  See United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984).  This case does not match it—for starters, we have no record to determine whether counsel followed his client’s instructions with respect to the vigor of his defense, or whether counsel could have invoked any defenses beyond easily cured objections to admissible evidence.  See id. at 659 & n.26, 104 S. Ct. at 2047.  This case is not one in which the father was constructively denied counsel because the appointed lawyer “entirely failed” to subject the prosecution’s case to meaningful adversarial testing.  Cronic, 466 U.S. at 658–59, 104 S. Ct. at 2039; see also Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 1851 (2002). The father had a lawyer, and Justice Keyes’s concurrence points out the strengths of that representation in contrast with the dissent’s view of its weaknesses.  And, the dissent’s entire discussion of counsel’s poor representation is dicta—because, in the end, the dissent would reverse and render judgment in favor of the father, not grant a new trial based on counsel’s ineffectiveness. Whatever wrong trial counsel’s failings wrought does not preclude the dissent from concluding that the DFPS’s case lacks any legal merit—rather, the dissent would hold that this father is a parent by court decree.

Texas law burdens the father seeking reversal of the trial court’s decision with demonstrating a reasonable probability that he would have been awarded custody of this child save for his trial counsel’s ineptness.  See M.S., 115 S.W.3d at 546 (“Counsel’s failure to ensure recording of voir dire, the charge conference, and closing arguments does not constitute ineffective assistance of counsel without a showing of harm, and [this parent] has not shown that she was harmed by the lack of a complete record.”).  When presented with such evidence, DFPS would have the opportunity to rebut it—an opportunity not afforded to it when the second prong of Strickland is replaced by appellate fiat.  To give an example, the father chastises trial counsel for making an invalid objection to testimony about the father’s assault on the child’s mother, and the authenticity of documents reflecting the accompanying criminal charges that the trial court admitted into evidence.  If the father is put to his Strickland burden, then the DFPS could respond that the father since has been convicted of criminal conduct associated with that assault—a fact that the DFPS has asked us to judicially note.  DFPS could also contest the probable success of an objection to this evidence, and the ways it would have cured any of its own proof deficiencies had they been pointed out by the father’s trial counsel.  See In re J.W., 113 S.W.3d 605, 616 (Tex. App.—Dallas 2003, pet. denied) (failure to object to admission of criminal record not ground for ineffective assistance).  It is unlikely that counsel’s failures obscured the truth on this matter.

          The second prong of Strickland requires a showing that the outcome of this case probably would have been different had counsel done a better job.  Having adopted the Strickland standard in parental termination cases, it is the Texas Supreme Court that should reject it when it proves unworkable.  It is not unworkable here.  As a case that involved both a legal sufficiency challenge and a meritorious ineffective assistance claim, M.S. provides this court with an analytical road map:  in that case, the Texas Supreme Court remanded for further consideration of the ineffective assistance claim, where any harm could be examined or cured, but found the evidence legally sufficient to uphold the trial court’s finding of endangerment.  M.S., 115 S.W.3d at 550 (holding that failure to record proceedings not ineffective without any showing of harm, but remanding to determine whether failure to preserve factual sufficiency was objectively reasonable); see also Cronic, 466 U.S. at 666–67 n.41, 104 S. Ct. at 2051 (“Should respondent pursue claims based on specified errors made by counsel on remand, they should be evaluated under the standards enunciated in Strickland v. Washington.”). Following J.O.A. and the Texas Supreme Court’s holding in M.S., we uphold the requirement announced in Strickland’s second prong, and we place the burden on the father to show that the outcome of this trial would have been different had counsel provided him with a good defense—and that a good defense was available, had more facts come to light. Because the father did not have that opportunity with new counsel, he may request that we abate the case to the trial court for a hearing to determine whether any deficiency in counsel’s performance affected the outcome of the case.  If it did, the trial court should make appropriate findings and recommend that we grant a new trial.  Such a hearing must be requested and conducted, and any findings and recommendation for new trial be forwarded to this court before the expiration of our plenary power.^[6]  Absent further proceedings, we uphold the termination order and the trial court’s judgment.

Conclusion

A father’s right to parent his child is one of constitutional dimension—to a caring father, one of more importance than the right to his own life or liberty.  But a child’s right to basic human dignity and necessity is no less a right under the law. It, too, must be protected.  See A.V., 113 S.W.3d at 361 (“[T]he rights of natural parents are not absolute; protection of the child is paramount.” (quoting J.W.T., 872 S.W.2d at 195)). In this case, the father requested that we favor the one over the other to an extraordinary extent, out of conformity with existing precedent, warranting en banc consideration by the court. We affirm the trial court’s decree that terminates the father’s parental rights to the child.  All pending motions are denied as moot.

Jane Bland

Justice

Justice Bland, joined by Chief Justice Radack, and by Justices Alcala, Hanks, and Massengale, for the en banc court.

Justice Jennings, dissenting, joined by Justice Higley.

Justice Keyes, concurring in part and dissenting in part.

Justice Sharp, dissenting, in an opinion to follow.

Justice Massengale, concurring, joined by Justices Alcala and Hanks.

---

^[1] The clerk’s record includes a 3-page affidavit sworn 3 days after the child’s birth, which stated:

. . . .

On November 8, 2006, the Texas Department of Family and Protective Services received a referral alleging the physical abuse of [V.V.], by her mother . . . .  The report indicated that [the mother] and the child [V.V.] tested positive for Opiates.

. . . .

[The mother] told me that [J.V.] was the father of [V.V.] and stated that he is in jail for robbery. . . .

I located [J.V.] in the Harris County Jail and attempted to interview him at 1200 Baker Street; however, he was in quarantine.  I left the notice of removal for him . . . .

^[2] See, e.g., In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (holding that father’s imprisonment, along with drug use, criminal conduct, and allowing child to live with known drug users, constitutes endangerment); In re J.T.G., 121 S.W.3d 117, 131 (Tex. App.—Fort Worth 2003, no pet.) (holding that father’s incarceration before and during pregnancy, coupled with drug and alcohol abuse, is sufficient to support finding of endangerment); In re U.P., 105 S.W.3d 222, 235–36 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (holding that father’s imprisonment, plus supply of drugs to mother during pregnancy and personal drug use, was sufficient to show endangerment); Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686–87 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding that mother’s imprisonment and drug use in violation of community supervision constitutes endangerment); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (holding that parents’ imprisonment, in addition to drug use and continuous criminal activity, is sufficient to support finding of endangerment); see also Padilla v. Dep’t of Family & Protective Servs., No. 01-07-00313-CV, 2008 WL 525750, at *1–2 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.).

^[3] Rule 404(b) does not require a final conviction as a predicate to admission of extraneous offense evidence of other “wrongs or acts,” if that evidence is otherwise relevant and admissible.  See Tex. R. Evid. 404(b)..  The evidence of the assault was relevant.  See Tex. Fam. Code Ann. § 263.307(b)(7) (Vernon 2008) (providing that, when determining best interest of a child in a DFPS permanency hearing, the trial court is to consider “whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home.”);  In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (holding that trial courts should consider the section 263.307(b) factors when determining child’s best interest). 

[4] Take no solace in the dissent’s suggestion that this child could remain in state care in the future even if this court were to render judgment for the father (as the panel had) because, it theorizes, the father’s counsel did not adequately challenge the conservatorship order.  In his brief, the father challenges the sufficiency of the evidence and expressly asks in his prayer for relief “that the Court reverse the judgment terminating his parental rights to V.V. and the appointment of DFPS as her sole managing conservator.”  Even if counsel had not requested such relief, under the dissent’s view, such a failure would have amounted to ineffective assistance, given its position that the father should prevail outright on appeal.  Even if it was borne out in the briefing, a childhood should not be hobbled by the dim prospect of unending state conservatorship without hope of adoption or a permanent home.

^[5] The Texas Supreme Court has held that a parent may raise an ineffective assistance of counsel claim on appeal despite the failure to include it in a statement of points.  In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009). Thus, the father may raise this issue on appeal even though trial counsel did not assert it in his statement of appellate points.  Id.; see Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008) (“The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.”).

^[6] In these unusual circumstances—in which a panel of this court struck the original brief and abated the case for appointment of new counsel well after the case was on appeal—we afford the father in this case a limited opportunity to seek abatement and trial court findings of deficient performance and resulting prejudice, similar to Strickland petitioners who seek post-conviction habeas corpus review in the criminal law context.  In the ordinary case, such a showing should be made in the trial court post-trial or otherwise be evident from the record.  See M.S., 115 S.W.3d at 546.