In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00066-CV
______________________________
IN THE INTEREST OF
G.J.P. AND R.P., CHILDREN
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 2007-804
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
Jason Payne, at the time of this child custody proceeding, stood accused of murdering his
wife and a stepson. The trial court appointed as joint managing conservators the maternal
grandparents of the two surviving children—G.J.P. and R.P., his biological children. The trial
court denied Payne any conservatorship standing or visitation rights with G.J.P. and R.P. Trial
counsel was dismissed from his appointment by the court as a part of the order on June 5, 2009.
Payne filed a pro se notice of appeal on July 2, 2009. On July 22, Payne filed a request for
counsel for appeal, and the court appointed appellate counsel on that date to represent him. By
that time, it was too late to file the ―statement of points on appeal‖ required by the Texas Family
Code. We affirm the judgment of the trial court.
I. PRELIMINARY MATTERS
This Court is once again confronted with the proper application of Section 263.405 of the
Texas Family Code. Again, Section 263.405 requires a party who intends to appeal an order in
certain suits affecting the parent-child relationship to file a statement of points on which the party
intends to appeal. TEX. FAM. CODE ANN. § 263.405(b)(2) (Vernon 2008). The legislative
enactment in Section 263.405(i) purports to limit the power of appellate courts to review the
proceeding below by stating that an 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
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intends to appeal or in a statement combined with a motion for new trial—within an extremely
short fifteen-day time period. TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008).
A. Does Section 263.405 Apply to This Case? Is This an Accelerated Appeal?
Initially, the Department filed this case requesting that Payne‘s parental rights should be
terminated; later, the termination allegation was dismissed and the case was tried as a
conservatorship/access trial. Though initially complaining of the effects of Section 263.405 on
his right to appeal, Payne argues in his reply brief that this judgment determining conservatorship
and visitation is not subject to the requirements of Section 263.405. That means, he contends, that
this case is not accelerated and he was also not required to file a statement of points.
It appears that only one other case has directly addressed this question. In re A.J.K., 116
S.W.3d 165 (Tex. App.—Houston [14th Dist.] 2008, no pet.). When addressing this issue, the
Houston Fourteenth court concluded that although the judgment ultimately determined
conservatorship rather than termination, it still fell within the purview of Section 263.405(a),
making it an accelerated appeal. See id. at 168, 173. Section 263.405 still applied even though
the termination allegations were ultimately abandoned. Id. at 168–69. Section 263.401,
concerning the deadlines and dismissal dates, also applied since, at least initially, the Department
asked the trial court to consider both termination and conservatorship matters. Id. at 169.
The court based its decision on several factors, one being a definition of ―final order‖ that
has since been repealed, but also separately explaining that even in the absence of termination
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allegations, Chapter 263 should apply to these types of cases in which the Department is involved.
Id. at 170–71. As pointed out there, the application of Chapter 263 is further supported by the
goal of quick resolution of highly emotional suits in which the stakes are high. See id. The
A.J.K. court was careful to draw the distinction between these types of cases involving the
Department and those cases involving custody arrangements between two parents, calling the two
cases ―fundamentally different.‖ See id. at 171. The latter cases, those involving only parents,
properly fall under the general appeal provision. See TEX. FAM. CODE ANN. § 109.002 (Vernon
2008). It is also worth noting that the headings of the subchapter are not for termination suits, but
for suits affecting the parent-child relationship—and that the preceding subchapters involving
suits by the State reference a wide range of orders, rather than termination only. The language of
the subtitle itself is not limited to termination, and the context in which the statute lies does not
require that result.
We find the discussion by the Houston court of statutory construction and examination of
the interests at issue persuasive, and conclude that this appeal is accelerated subject to Chapter
263‘s provisions—and that the statement of points thus applies to this appeal as a part of those
provisions.
B. The Notice of Appeal Was Timely Whether Accelerated or Not; This Court
Has Jurisdiction Over This Appeal
1. Accelerated
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We also recognize that the notice of appeal is timely regardless of whether the appeal is
treated as accelerated or using the timetables for a regular appeal. As an accelerated appeal, the
notice of appeal was timely by application of the implied motion for extension of time. In the
accelerated appeal of a civil case, unless a party moves to extend the time to file an appeal, the
notice of appeal must be filed within twenty days after the judgment or order appealed from is
signed. TEX. R. APP. P. 26.1(b); In re K.A.F., 160 S.W.3d 923, 926–27 (Tex. 2005). The
appellate court may extend the time to file the notice of appeal, if, within fifteen days after the
deadline for filing the notice of appeal, the party (1) files the notice of appeal, and (2) files in the
appellate court a motion complying with Rule 10.5(b). 1 TEX. R. APP. P. 26.3. A motion to
extend time to file a notice of appeal is necessarily implied when an appellant, acting in good faith,
files a perfecting instrument beyond the time allowed for perfecting an appeal, but within the
fifteen-day period in which the appellant would be entitled to move to extend the filing deadline.
See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Doe v. Brazoria County Child
Protective Servs., 226 S.W.3d 563, 570–71 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re
B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco 2002, no pet.).
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We also point out that Section 263.405(c) does not negate this general rule regarding an implied motion for extension
of time to file the notice of appeal. It provides as follows:
A motion for a new trial, a request for findings of fact and conclusions of law, or any other post-trial
motion in the trial court does not extend the deadline for filing a notice of appeal under Rule 26.1(b),
Texas Rules of Appellate Procedure, or the deadline for filing an affidavit of
indigence under Rule 20, Texas Rules of Appellate Procedure.
TEX. FAM. CODE ANN. § 263.405(c) (Vernon 2008) (footnote omitted). By its own terms, Section 263.405(c) is
limited to motions filed in the trial court.
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Although the motion for extension of time is implied, the appellant must also provide a
reasonable explanation for the late filing to avoid dismissal of the appeal. See Jones v. City of
Houston, 976 S.W.2d 676, 677 (Tex. 1998); Doe, 226 S.W.3d at 571. Courts have held that an
attorney‘s misunderstanding of the relevant deadlines to perfect an appeal under Section 263.405
constitutes a reasonable explanation for the late filing of a notice of appeal. See Doe, 226 S.W.3d
at 571. Payne‘s later-filed motion for extension of time to file the notice of appeal, though not
necessary, provides the reasonable explanation for the delay.
2. Not Accelerated
If this appeal were not subject to accelerated timetables, it would simply be timely filed:
the notice of appeal was filed within thirty days of the date the judgment was signed. See TEX. R.
APP. P. 26.1.
In other words, the notice of appeal was timely filed, and we have jurisdiction over the
appeal under either scenario.
II. INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE
Despite recognizing that this suit was brought under the aegis of the cited portion of the
Texas Family Code, as the types of orders that can be issued under that subtitle extend beyond
termination orders only, it does not necessarily follow that the remedy provided for ineffectiveness
of counsel applies in this case.
6
The statutory basis for appointment of counsel is found in Section 107.013(a) (which is
itself a legislative acknowledgment of the constitutional requirements set out by the Texas
Supreme Court). In relevant part, the statute provides that when a suit is filed by a governmental
entity in which termination is requested, the court shall appoint an attorney to represent an indigent
parent. It also provides that if a governmental entity requests temporary managing
conservatorship of a child, and a parent responds in opposition, the court shall appoint an attorney
to represent an indigent parent‘s interests. TEX. FAM. CODE ANN. § 107.013(a)(1), (c) (Vernon
Supp. 2009). In this case, the State initially sought termination or, alternatively, conservatorship,
but on April 8, 2009, filed a nonsuit of its termination petition, and the case was tried in early May
based solely on the conservatorship issues.
Does the recognized right to effective assistance of counsel for cases involving the
termination or severance of parental rights also extend to cases in which only conservatorship is
decided?
This question does not appear to have been addressed before in Texas, and the United
States Supreme Court opinions on which the Texas opinions rely for guidance do not speak to that
situation. A review of those opinions provides one absolute: the right to counsel, and a
concomitant right to effective counsel measured under constitutional guidelines, exists when the
result of the proceeding is the permanent severance of a parent‘s rights to a child.2 Although the
2
Lassiter declared it ―plain beyond the need for multiple citation‖ that a natural parent‘s ―desire for and right to ‗the
companionship, care, custody and management of his or her children‘‖ is an important interest. Lassiter v. Dep’t of
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Texas statute providing for mandatory appointment of counsel specifies that it applies only in the
case of a suit filed by a governmental entity seeking termination or temporary managing
conservatorship, the United States Supreme Court found no reason for differentiation between
suits filed by a governmental entity or an individual where termination was involved.
Although the termination proceeding in this case was initiated by private parties as
a prelude to an adoption petition, rather than by a state agency, the challenged state
action remains essentially the same: M.L.B. resists the imposition of an official
decree extinguishing, as no power other than the State can, her parent-child
relationships.
M.L.B. v. S.L.J., 519 U.S. 102, 117 n.8 (1996).3
In its earlier opinion, the United States Supreme Court had stated that when
the State initiates a parental rights termination proceeding, it seeks not merely to
infringe that fundamental liberty interest, but to end it. ―If the State prevails, it
will have worked a unique kind of deprivation. . . . A parent‘s interest in the
accuracy and justice of the decision to terminate his or her parental status is,
therefore, a commanding one.‖
Santosky v. Kramer, 455 U.S. 745, 759 (1982); Lassiter, 452 U.S. at 27.
In reviewing a termination, the Texas Supreme Court held in In re M.S., 115 S.W.3d 534,
543 (Tex. 2003), that ―the statutory right to counsel in parental-rights termination cases embodies
Social Servs. of Durham County, 452 U.S. 18, 27 (1981). In so holding, the Court relied upon Stanley v. Illinois, 405
U.S. 645, 651 (1972), which recognized the relationship as an interest ―far more precious . . . than property rights.‖
3
Compare In re J.C., 250 S.W.3d 486 (Tex. App.—Fort Worth 2008, pet. denied), cert. denied, 130 S.Ct. 1281 (2010).
The court reasoned that because Child Protective Services (CPS) nonsuited its termination of parental rights suit, and
foster parents concurrently filed a new private termination suit, the mother‘s parental rights were terminated pursuant
to a private termination suit, and thus, she possessed no mandatory statutory right to appointed counsel. Statutorily,
that reasoning is undoubtedly correct. Its constitutional firmness is questionable. Under present statutory authority,
such an appointment is discretionary under Section 107.021 of the Texas Family Code. TEX.
FAM. CODE ANN. § 107.021 (Vernon 2008).
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the right to effective counsel.‖ The court very carefully used language throughout its opinion
linking that right to termination. There is no indication that the right might also be extended
where the case was not one terminating or severing parental rights for all time—but instead was a
case determining conservatorship or custody.
In In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009), the court again examined this concept,
holding that even when a statement of points is not filed as required under Section 263.405(b)(2)
of the Texas Family Code, the issue of effective assistance of counsel in a parental rights
termination case may be raised on appeal (despite the failure to include it in a statement of points)
and that the section is unconstitutional as applied when it precludes a parent from raising a
meritorious complaint about the insufficiency of the evidence supporting the termination order.
Again, the opinion is expressly controlling only over cases where a parent‘s rights are terminated.
There is a reason to treat termination cases differently in a constitutional
analysis—termination results in the permanent severance by the State of a parent‘s relationship
with a child—a right that has been held to be constitutional in nature. A determination of
conservatorship or custody does not reach this level. It may place restrictions on conservatorship
or custody, even extreme ones, but those are restrictions, not the permanent severance of a
relationship. Conservatorship or custody determinations can be amended or modified when
justified by the circumstances. Thus, the main rationale for importing the right to effective
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assistance of counsel into a civil proceeding does not exist in a case where the severance of that
recognized right is not implicated.
Ineffective assistance of counsel is a constitutional claim that is only available in very
limited situations. Generally, it can be raised only in criminal cases (where loss of freedom is at
stake) and parental rights termination cases (where the relationship between parent and child is
permanently severed). It provides a complete remedy: setting aside the decision of the trial
court. As this case has evolved, it is a conservatorship case to which this extra-constitutional
protection does not apply. This does not mean that attorneys are not required to provide
competent services or that there is no remedy for their failure. Just as in any professional
undertaking, attorneys have the obligation to perform in a competent, nonnegligent manner and the
failure to do so may subject attorneys to claims of professional negligence. But we find no
authority, in a child custody case, to authorize a remedy of overturning a trial court decision based
on ineffectiveness of counsel.
Our statutes authorize the appointment of counsel in many situations. For example, Rule
308a of the Texas Rules of Civil Procedure allows the trial court to appoint an attorney to enforce
its orders of child support and possession and access to a child. If the constitutional right to set
aside a decision of a court for ineffectiveness of counsel exists for conservatorship and custody
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disputes, would that same right not also apply to actions under Rule 308a?4 We believe the
superior courts have reserved the constitutional remedy afforded by proof of deficient professional
performance to claims involving the potential loss of liberty or permanent deprivation of the
parental rights.5 The claim of ineffective assistance of counsel cannot be considered by this
Court, and the arguments based on that claim are overruled.
III. TRIAL COURT’S FAILURE TO DISMISS UPON DISMISSAL DATE
Payne next argues that the court erred by failing to dismiss this proceeding as required by
statute when the statutory timetable expired—because the judge did not make the necessary
findings to justify extending the time periods. Payne again raises the issue as showing ineffective
assistance of counsel for failing to seek the dismissal, but also couches his argument as being
reachable by this Court because the statement of points requirement is a violation of separation of
powers between the judiciary and the legislative branches.
4
Examples of authorized court appointment of counsel include: TEX. GOV‘T CODE ANN. § 24.016 (Vernon 2004)
(district judge may appoint counsel for party too poor to employ counsel), § 26.049 (Vernon 2004) (constitutional
county court judge may appoint counsel for party who makes affidavit he or she is too poor to employ counsel).
5
Federal courts have rejected arguments for extending the right of effective assistance to Title VII cases even though
the courts may appoint counsel. Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir. 2006) (―Although every client
who engages a lawyer has a right of effective assistance of counsel in the sense that legal services falling below
acceptable professional standards may give rise to tort liability, the term ‗effective assistance of counsel‘ is generally
reserved for contexts in which the lawyer‘s deficient performance provides a basis for reversal on appeal or collateral
review. In criminal cases, the Supreme Court has found that right implicit in the Sixth Amendment‘s guarantee that
‗in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.‘
U.S. CONST. amend. VI; see Strickland v. Washington, 466 U.S. 668, 685–86 (1984). In civil cases, the right can
arise from the Due Process Clause of the Fifth Amendment, but the only context in which courts have recognized a
constitutional right to effective assistance of counsel in civil litigation is in immigration cases.‖).
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The Fort Worth court declared Section 263.405(i) unconstitutional on the ground that it
violates the Separation of Powers Clause of the Texas Constitution. In re D.W., 249 S.W.3d 625,
640 (Tex. App.—Fort Worth), pet. denied, 260 S.W.3d 462 (Tex. 2008). It pointed out that the
Separation of Powers Clause is violated (1) when one branch of government assumes power more
properly attached to another branch or (2) when one branch unduly interferes with another branch
so that the other cannot effectively exercise its constitutionally assigned powers. Id. at 635.
In D.W., the court considered the constitutionality of Section 263.405(i) when it prohibited
the court from addressing the trial court‘s denial of a mother‘s motion to extend the dismissal
deadline under Section 263.401. Id. at 632. After first concluding that the mother properly
preserved her objection under Section 263.401 at trial but that she failed to include that issue in her
statement of points, the Fort Worth court found that the Legislature, by enacting Section
263.405(i), violated the doctrine of separation of powers by encroaching on the judiciary‘s
substantive power to review issues preserved at trial but not included in a statement of points. Id.
at 632, 640; see M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305 (Tex.
App.—El Paso 2009, pet. denied). Importantly, the D.W. court pointed out that Section
263.405(i) does not bar a challenge that ―could not have been addressed by the trial court in the
first instance.‖ 249 S.W.3d at 632.
The Texas Supreme Court has repeatedly stated that we should not delve into constitutional
issues if other grounds dispose of an appeal. See VanDevender v. Woods, 222 S.W.3d 430, 432
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(Tex. 2007) (noting courts should rest decisions on nonconstitutional grounds, if available, and not
―wade into ancillary constitutional questions‖); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003)
(―As a rule, we only decide constitutional questions when we cannot resolve issues on
nonconstitutional grounds.‖).
Applying that general restriction, several appellate courts have held that due process or
separation of powers issues should not be addressed where there is no showing that the operation
of the challenged statute harmed the appellant. See, e.g., M.C., 300 S.W.3d 305; Walker v. Tex.
Dep’t of Family & Protective Servs., No. 01-07-00867-CV, 2009 WL 1688469, at *7, 12 (Tex.
App.—Houston [1st Dist.] June 18, 2009, pet. denied); In re M.M.F., No. 2-08-014-CV, 2008 WL
5265033, at *7 (Tex. App.—Fort Worth Dec.18, 2008, no pet.) (mem. op.); Tex. Dep’t of Family &
Protective Servs. v. Dickensheets, 274 S.W.3d 150, 155 (Tex. App.—Houston [1st Dist.] 2008, no
pet.).
Payne complains that the trial court made only one of the two required findings under
Section 263.401(b)—and that counsel was ineffective in not properly preserving or raising the
issue. The statute provides that ―the [trial] court may not retain the suit on the court‘s docket‖
after the one-year dismissal date unless the court makes specific findings as set out in the statute.
TEX. FAM. CODE ANN. § 263.401(b) (Vernon 2008); In re Dep’t of Family & Protective Servs., 273
S.W.3d 637, 643 (Tex. 2009).
b) . . . the court may not retain the suit on the court‘s docket after the
time described by Subsection (a) unless the court finds that extraordinary
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circumstances necessitate the child remaining in the temporary managing
conservatorship of the department and that continuing the appointment of the
department as temporary managing conservator is in the best interest of the child.
If the court makes those findings, the court may retain the suit on the court‘s docket
for a period not to exceed 180 days after the time described by Subsection (a).
TEX. FAM. CODE ANN. § 263.401 (Vernon 2008).
The record, however, indicates otherwise. In an omnibus order that includes a section on
retaining the suit on the court‘s docket, the court found that:
3.1 Pursuant to § 263.401(b), Texas Family Code, the Court finds that this
Court has continuing jurisdiction of this suit, and that extraordinary
circumstances necessitate [G.J.P.] and [R.P.] remaining in the temporary
managing conservatorship of the Department and that continuing the
appointment of the Department as temporary managing conservator is in the
best interest of the children. An order to retain the case on the Court‘s
docket should be granted.
Thus, the judge made the two findings required by the statute, and there is no showing that
the operation of the challenged statute (requiring a statement of points) harmed Payne. We
overrule the contention of error.
We affirm the judgment.
Jack Carter
Justice
Date Submitted: March 24, 2010
Date Decided: May 5, 2010
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