ACCEPTED
01-15-00388-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/2/2015 4:25:00 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00388-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT10/2/2015 4:25:00 PM
OF TEXAS AT HOUSTON CHRISTOPHER A. PRINE
Clerk
IN THE INTEREST OF
M.A.B., IV
M.A.B, JR.,
APPELLANT
VS.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
APPELLEE
ON APPEAL FROM THE 314TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2014-00044J
APPELLANT’S RESPONSE BRIEF
CONNOLLY & SHIREMAN, LLP
William B. Connolly
State Bar No. 04702400
2930 Revere, Suite 300
Houston, Texas 77098
Telephone (713) 520-5757
Facsimile (713) 520-6644
wbc@conlawfirm.com
ATTORNEY FOR M.A.B., JR.
2015.10.02 R EPLY BR IEF.w pd
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RESPONSE TO REPLY POINT ONE: Whether the Decree for
Termination Was Final. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RESPONSE TO REPLY POINT TWO: Whether Ineffective
Assistance of Counsel Affects Grounds for Termination.. . . . . . . . . . . . . . . 4
A. §161.001(1)(O) and Ineffective Assistance of Counsel.. . . . . . . . . . . 5
B. §161.001(1)(Q) and Ineffective Assistance of Counsel.. . . . . . . . . . . 7
C. Best Interest of the Child and Ineffective Assistance of Counsel. . . . 9
RESPONSE TO REPLY POINT THREE: Whether Ineffective Assistance
of Counsel Requires Reversal of Termination and Conservatorship. . . . . . 11
CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2015.10.02 R EPLY BR IEF.w pd ii
TABLE OF AUTHORITIES
Cases
Custom-Crete, Inc. v. K-Bar Servs, 82 S.W.3d 655
(Tex. App. - San Antonio 2002, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ford v. Exxon Mobil Chem. Co., 235 S.W. 3d 615 (Tex. 2007). . . . . . . . . . . . . . . 2
In re J.O.A., 283 S.W.3d 336 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14
In re M.S., 115 S.W.3d 534 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 15
In re V.V., 349 S.W.3d 548
(Tex. App.-Houston [1st Dist.] 2010, no pet.)(en banc). . . . . . . . . . . . . . . . . . 12-14
Lehman v Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . 2
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . 12, 13
United States v. Cronic, 466 U.S. 648 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Statutes
Tex. Fam. Code § 262.114 (a-1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
Tex. Fam. Code § 262.114 (a-2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. Fam. Code §107.0131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 15
Rules
Tex. R. Civ. P. 245. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. R. Civ. P. 22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tex. R. Civ. P. 301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11
2015.10.02 R EPLY BR IEF.w pd iii
Tex. R. Civ. P. 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tex. R. Civ. P. 47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Constitutions
Tex. Const, art.1, § 19.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. Const. amend XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Other Authorities
Tex. Code Prof. Resp., Rule 1.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tex. Code Prof. Resp., Rule 1.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tex. Code Prof. Resp., Rule 1.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Supreme Court of Texas Permanent Judicial Commission for Child,
Youth and Families, Legal Representation Study: Assessment of
Appointed Representation in Texas Child-Protection Proceedings
(Jan. 2011), §§ VII, VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2015.10.02 R EPLY BR IEF.w pd iv
NO. 01-15-00388-CV
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
IN THE INTEREST OF
M.A.B., IV
M.A.B, JR.,
APPELLANT
VS.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
APPELLEE
ON APPEAL FROM THE 314TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. 2014-00044J
APPELLANT’S RESPONSE BRIEF
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, Appellant, M.A.B., JR., and respectfully submits his
Appellant’s Response Brief in this cause. For the sake of clarity, M.A.B., JR.,
Respondent in the trial court, is referred to as “M.A.B., JR.”, “Appellant” or “Father”
in this Brief. Appellant’s trial counsel is referred to as “S.D.” The Petitioner in the
trial court, DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, is
referred to as “the Department”, “DFPS”, “the Agency”, or “Appellee.”
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ARGUMENT AND AUTHORITIES
RESPONSE TO REPLY POINT ONE: Whether the Decree for
Termination Was Final
Appellee initially decided who should be parties. Tex. R. Civ. P. 22, 45.
Appellee sued Phylecia Holiday. (CR 002, 89). Appellee served Phylecia Holiday
(3SCR 003). Appellee never non-suited or dismissed their cause of action against
Phylecia Holiday. Subsequently, Phylecia Holiday filed pleadings seeking
affirmative relief. (2SCR19). Appellee dropped her from subsequent amended
pleadings but never gave her notice of the final trial. (2SCR35). There can only be
one final judgment in each case and it must resolve all issues as to all parties. Tex.
R. Civ. P. 301. A presumption of finality is a good idea but should not hold in a
situation where a party is pled into a case, files responsive pleadings seeking
affirmative relief and is subsequently not notified of the trial on the merits. Whatever
the recitations might be, the record affirmatively proves that a party to the action
seeking affirmative relief was not notified of the final trial, did not appear at the final
trial and the judgment does not dispose of all issues as to all parties. Under the Texas
Rules of Civil Procedure and holdings of the Texas Supreme Court a judgment is
final only if it disposes of all issues and all parties. Tex. R. Civ. P. 301; Ford v
Exxon Mobil Chem. Co., 235 S.W. 3d 615, 617 (Tex. 2007); Lehman v Har-Con
Corp., 39 SW 3d 191, 200 (Tex. 2001).
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When a party wishes to set a contested case for trial it must send reasonable
notice of the same to all parties. Tex. R. Civ. P. 245. There is no factual or legal
basis upon which the Court or DFPS can say this one (1) document filed by the
Paternal Grandmother, Phylecia Holiday is three (3) separate documents relative to
which it could be assumed that the relief being sought was interlocutory or not. The
claim is sufficient to give fair notice of the claim involved. Tex. R. Civ. P. 47. On
its face the document requests a Standard Possession Order. No one filed special
exceptions. No one did anything at all but ignore her and her claims for relief.
There is also no factual or legal basis for the assertions suggested by Appellee
that after a party files a claim for affirmative relief, the Court can default or adjudicate
that party on the final merits of their claim if they fail to appear for a permanency
hearing on the issue of placement of the child. Moreover, Appellee seems to be
asserting that a party that it named and served and who filed claims for affirmative
relief can be dispatched from the suit, without notice or process, merely by a
recitation in a Decree (that Appellee’s trial counsel drafted) that dismisses them and
their claims. Finality is an important principle. However, it was never intended to
replace the fundamentals of due process, notice and an opportunity to be heard. U.S.
Const. amend XIV; Tex. Const, art.1, § 19.
A failure to notify all parties of a final trial followed by the commencement of
and conclusion of a trial without that party actually deprives the party of their
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constitutional due process rights and is grounds for reversal. Custom-Crete, Inc. v.
K-Bar Servs, 82 S.W.3d 655, 659 (Tex. App. - San Antonio 2002, no pet.). While
those claims for relief and those procedural and statutory rights belong to Phylecia
Holiday, Appellant believed it to be appropriate to address the issue as to whether the
Decree is Interlocutory or Final. Based upon the pleadings and record in this case,
it appears to be interlocutory. If it is, it dramatically affects the outcome of the
appeal.
RESPONSE TO REPLY POINT TWO: Whether Ineffective
Assistance of Counsel Affects Grounds for Termination
This case presents the Court with a fundamental question. Can a court-
appointed attorney fail to comply with their specific statutory duties and not
communicate with their client during the entirety of the pre-trial proceedings and still
be found to have provided effective assistance? Aside from the unnecessary
assumptions Appellee makes about Appellant, his intentions or his character, this case
brings to the forefront of DFPS termination cases, the angst of parents, family, the
Supreme Court Permanent Commission and many independent observers over the
quality of appointed representation of parents and children in DFPS cases. DFPS is
requesting this Court to sidestep around the statutory duties of DFPS, sidestep around
the statutory and common law duties of Appellant’s counsel and sidestep around the
derivative consequences of ineffective assistance of counsel. The gist of the
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Department’s reply is that because Appellant is in prison, he is lazy, uncaring,
apathetic and deceptive and is therefore not entitled to effective representation of
counsel.
A. §161.001(1)(O) and Ineffective Assistance of Counsel
The uncontradicted evidence was that even though Appellant started the
CHANGES program, he subsequently was housed by TDCJ in a unit where that
program and those services became unavailable. (SRR P 87, L9-20). The DFPS
caseworker admitted that the only effort she made to communicate with Appellant
was to send him the Family Service Plan. (RR, V 3 P 13, L 5-17). Appellant testified
that he did send correspondence to the DFPS caseworker but she did not respond.
(SRR P90,L1-10;P96, L21-P97, L1). This was not an excuse, it was a statement of
fact. This is not evidence of a lazy, uncaring or apathetic father or an admission that
he was not willing to do the program. It simply means that he was transferred to a
unit where it was unavailable and he could not complete it. When the terms of an
order are impossible to comply with, in a conventional case, the party advises their
lawyer and the lawyer prepares and files a motion and, if necessary, sets a hearing to
address the issue with the Court and seek relief from the potential consequences of
non-compliance. Faced with termination of his parental rights for non-compliance,
there is no plausible, professional reason to not seek relief from the Court when
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Appellant’s ability to comply with the Family Service Plan and Court Order became
impossible.
Statements of fact are not excuses. It is a fact that the option of having his
attorney bring his inability to comply to the court’s attention was impossible in this
case because Appellant was unaware that he had a lawyer. It is a fact that no effort
was made to contact Appellant or to communicate with him directly. It is a fact that
Appellant was left without recourse so that this and other issues could be addressed.
It is a fact that Appellant had filed pro se motions, with a certificate of service on
counsel of DFPS, requesting to participate in the pre-trial hearings. (SRR, P42, L10-
P46, L4; Abatement Hearing, Ex. 11,12, 14). It’s a fact that these motions were
ignored. Had he been allowed to participate and had effective assistance of counsel
who would have known about the impossibility of performance this could and should
have been addressed with the Court. No reasonable attorney would have failed to do
so because ignoring the fact that it was impossible to perform would and did put
Appellant’s parental rights at risk.
Furthermore, DFPS, also ignored it’s statutory responsibilities and the
requirements of the Family Service Plan imposed upon DFPS. It was inequitable, at
best, to subject Appellant to termination of his parental rights because he did not fill
out and return to DFPS a Child Placement Resources Form that the caseworker
admitted that she never sent to him. (RR V 3, P13, L15-17). DFPS is statutorily
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required to provide the form to Appellant. Tex. Fam. Code § 262.114 (a-1). DFPS
is required to file the form. Id. No such form is filed. Since no such form was filed
or provided, it is also clear that DFPS did not file its statutorily required statement as
to why the child was not placed with relatives. Tex. Fam. Code § 262.114 (a-2).
According to DFPS, the failure of Appellant’s attorney to address these failures
by DFPS to perform its mandatory statutory duties should be of no consequence
because Appellant did not do everything correctly on his own. Appellant is not
suggesting that it was attorney’s responsibility to comply with a Family Service Plan.
However, he tried to participate and was ignored. (SRR, P 42, L10-P46, L 4,
Abatement Hearing, Ex. 11,12, 14). He is saying that it was his attorney’s
responsibility to discuss the case with him, discuss that compliance was impossible
and to do something about it. While Appellant may have some shortcomings,
asserting a claim for ineffective assistance of counsel does not mean he did not take
his case and child seriously, does not mean he was deceptive and does not mean that
he was apathetic. (Appellee’s Reply Brief, 49-50). The case should be reversed and
remanded for a new trial.
B. §161.001(1)(Q) and Ineffective Assistance of Counsel
DFPS approved a home study on Appellant’s aunt, Jacklyn Ross and told the
court that they would place the child with Ms. Ross if directed to by the Court. The
Department indicated some vague, non-specific concerns. (RR V 3 P15, L 11-P17,
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L21). Appellant wanted his aunt, Ms. Ross, to care for the child. (SRR P 33, L10-
21). DFPS suggests that there is 100% responsibility on Appellant to establish the
ability to provide alternate care arrangements for his child and 0% responsibility on
the part of his attorney. Appellant, on the other hand, complains that his attorneys
misinformed the relatives at the beginning of the case that certain family members
were ineligible for placement when they were not. (SRR P111, L23-P112,L19). Had
anyone, including counsel for DFPS, responded to Appellant’s Motion to Participate
in the Pre-Trial Hearings they could have elicited his preferences and also addressed
DFPS’s non-compliance with the Family Service Plan. The whole point of having an
attorney is for that attorney to directly advise and assist the parent throughout the
pendency of the case. Clearly that did not happen in this case. Appellant’s aunt was
clearly capable of caring for the child. (SRR P111, L16-20; P112,L20-22). Her
home study was approved by DFPS for placement. (RR V 3, P16, L 22-24). Finally,
it is not that Appellant did not approve of his aunt for placement. However, there was
evidence that Appellant, in fact, had other resources and placement options which
were never made known to the Court prior to trial because S. D. never communicated
with Appellant to find out who they might be. (SRR P 84, L20-25).
It is important to note that Appellant is not trying to blame DFPS or his
attorney for his shortcomings. He is not attempting to make excuses or to avoid
responsibility. The record does not support such a conclusion. He does not even
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necessarily expect a completely level playing field. However, he believes, and
rightfully so, that the holdings of the Texas Supreme Court, the statutes passed by the
Texas Legislature and the decisions of the United States Supreme Court require
substantially more effective representation than was provided to him by counsel in
the Court below. Accordingly, the case should be reversed and remanded for a new
trial.
C. Best Interest of the Child and Ineffective Assistance of Counsel
DFPS makes assertions about best interest that are not supported by the record.
1. The desires of the child
The facts of this case established absolutely nothing relative to the desires of
the child. Any amount of construction otherwise is only speculation and is not rooted
in the facts from the trial court. Many children actually end up lost and confused
about their birth families and why they were taken from them. There is no evidence
of the desires of this child either way because he was too young to articulate them.
2. Physical and Emotional Needs, Emotional and Physical Danger and
Programs of Assistance
The conclusive evidence in this case, if anything, is the ineffective assistance
of counsel. There is no evidence that Appellant even knew of the existence of this
child or the mother’s pregnancy prior to his incarceration. There was a family
placement available for the child. (RR V 3, P16, L 22-24). There were other
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placements that could have been explored and offered. Stable, safe secure relative
placement was available. The entire statutory scheme is designed to prevent what
happened in this case. In re J.O.A., 283 S.W.3d 336, 341 (Tex. 2009); In re M.S.,
115 S.W.3d 534,548 (Tex. 2003). It is designed to allow children to maintain family
bonds rather than becoming attached to foster parents. It is designed to prevent
parents from losing their parental rights because legal representation that falls below
the mandatory statutory and case precedent standards. The Supreme Court of Texas
Permanent Judicial Commission for Child, Youth and Families, Legal
Representation Study: Assessment of Appointed Representation in Texas Child-
Protection Proceedings (Jan. 2011), §§ VII, VIII. It is designed so that when issues
as to service plans come up, the parents’ attorney can address it with their client and
the Court. It is designed so that an indigent parent does not have to try (albeit
unsuccessfully) to participate in the proceedings as a pro se party. It is designed so
that each hearing and each stage of a termination proceeding is a “critical stage”
because of the legal risks involved and because the legislature mandated that the
attorneys confer with their client before each one. Tex. Fam. Code §107.0131(G).
It is designed for advocacy in the present and not for negative speculation as to a
person’s character in the future.
3. Parental Abilities, Stability of Home or Placement
Appellee is correct that Appellant had never met the child and that there was
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no evidence presented in the trial of the case that spoke to this issue. There is
evidence of a history of conduct before his only son was born but none that relates
to his parenting abilities. The uncorroborated and unchallenged hearsay statements
alluded to by Appellee are not actual evidence in the trial of the case and do not
factually support the Decree. They are pleadings. They are not evidence. Judgments
must be supported by pleadings and evidence. Tex. R. Civ. P. 301. There was no
such evidence presented in the trial of this case.
DFPS approved a relative placement with Ms. Ross. The child had a
relationship with her biological family. He also had a relationship with the foster
parent but there was no evidence of her abilities, stability or her actual home or
placement. Permanence includes managing conservatorship without the finality of
termination.
RESPONSE TO REPLY POINT THREE: Whether Ineffective Assistance
of Counsel Requires Reversal of Termination and Conservatorship
When confronted with concrete, specific and overwhelming evidence that
appellant’s trial attorney did not comply with either the statutory or common law
duties of effective representation, Appellee attempts a misdirection strategy. DFPS
labels Appellant’s legitimate complaints as blame or excuses and labels Appellant in
negative light. It is the equivalent of saying, “Hey Appellate Court, don’t look at that
issue at all. Look over here. See what a bad guy he is.” DFPS never really addresses
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the issue of ineffectiveness on the merits. Probably because there is no way to defend
it. Effective assistance of counsel does not mean that an attorney blames others for
the acts or omissions of the client. It does mean that the attorney regularly
communicates with the client, seeks out the client’s objectives of the representation
and then zealously pursues those objectives within the bounds of the law. Tex. Code
Prof. Resp., Rules 1.01, 1.02, 1.03. It does not mean that the attorney denies the
existence of prior acts but it does mean that the lawyer make some effort to mitigate
against the potential consequences and to do so by subjecting the state’s case to a
meaningful adversarial testing. Strickland v. Washington, 466 U.S. 668, 696
(1984); United States v. Cronic, 466 U.S. 648, 659 (1984). It is possible to some
degree, to act as a client’s attorney without communication with the client, but the
absence of communication and meaningful adversarial testing during the critical pre-
trial proceedings can and did set Appellant up for adverse findings on a final hearing.
This Court has written extensively on the issue of ineffective assistance of
counsel in a parental rights termination case. In re V.V., 349 S.W.3d 548 (Tex.
App.-Houston [1st Dist.] 2010, no pet.) (en banc). The majority, distinguished the
presumptive harm standards in Strickland and Cronic from the father because the
record did not reflect the scope of the ineffectiveness claim and that an appropriate
methodology would be to abate and remand for a hearing. Id. at 559. Unlike V. V.
that procedure was employed in this case. In V. V., the Court held that it could not
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discern whether counsel was following the father’s instructions. Id. We know that
in this case, there were no instructions to counsel because there was no pretrial
communication between S. D. and Appellant. In his concurring opinion, Justice
Massengale made it clear that harm can be presumed in one of 3 circumstances. Id.
at 564. One of these elements is the complete denial of counsel at a critical stage of
the proceedings. Id. The legislature mandated specific legal duties and mandated the
attorney for the parent meet with the parent prior to every hearing and that the trial
court ascertain compliance or make a good cause finding for non-compliance. Tex.
Fam. Code § 107.0131(G). Neither was done in this case. There where no meetings
and no communications with the client for over a year of representation. Under these
circumstances, non-compliance with the statutory mandates and the lack of direct
communication with the client through each critical state compels a finding of harm.
Further, the existence of statutory duties should elevate the standard of appellate
review beyond the limits of Strickland. The elements of the statute set a minimum
legal standard upon which counsel must comply. Where there is this type of non-
compliance with the statutory duties and the standards articulated by the U.S.
Supreme Court in both Cronic and Strickland, harm should be presumed. Strickland,
466 U.S. at 692; Cronic, 466 U.S. at 659.
Justice Keyes recognized that ineffectiveness exists when, there is no plausible
professional reason for a specific act or omission. V.V., 349 S.W.3d at 572. There
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is no plausible professional reason for the complete absence of communication
between the attorney and Appellant in this case. A failure to find ineffective
assistance of counsel and presumptive harm in this case will make Justice Jennings
portentous statement of concern (i.e. the majority opinion in V.V. would shut down
all claims for the constructive denial of counsel) an accurate prediction. Id. at 577.
The Department has previously and unsuccessfully asserted that there should be no
case specific consequence in a claim for ineffective assistance of counsel because the
procedural scheme made no provision for incompetence. In re J.O.A. , 283 S.W.3d
336, 341 (Tex. 2009). Noting that the Department had ignored the Court’s ruling, the
Supreme Court stated that the State’s interest in protecting the child’s welfare must
begin by working toward preserving the familial bond, rather than severing it. Id.;
see also, M.S., 115 S.W.3rd at 548. Once it is clear that a parent cannot or will not
provide a safe, stable family environment, then the State’s interest in protecting the
welfare of the child shifts to establishing that safe, stable and permanent environment
for the child elsewhere. Id. at 548-549. Appellant’s ability to provide that
environment was not known because neither the Department nor Appellant’s counsel
made any effort at all to ascertain his abilities. The caseworker made no attempt to
communicate with him or even follow the statutory duty and FSP duty to provide him
with Child Placement Resources Form. Appellant’s attorney made no effort to
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ascertain this either. It is as if everyone just assumed that the inquiry should end with
Appellant being in prison.
The Supreme Court concluded in M.S. that the goal of ensuring the child’s
safety and stability was served by procedures promoting an accurate determination
of whether a parent could provide a normal home and disserved by procedures that
did not. M.S., 115 S.W.3rd at 549. The Texas Legislature mandated requirements
on DFPS to seek an accurate determination of each parent’s abilities and for the
attorneys for the parents to do the same thing. Tex. Fam. Code § 262.114(a-1); Tex.
Fam. Code § 107.0131. While both DFPS and Appellant’s attorney made some
effort at maintaining a family bond, it seems unlikely that either DFPS or SD could
ascertain this when no effort was made to communicate with Appellant. There is
evidence that Appellant attempted to communicate with the caseworker and attempted
to participate in the Court proceedings. The evidence reflects both these efforts were
ignored. In M.S., the Supreme Court held that a trial attorney’s failure to timely file
a Statement of Appellate Points, while still representing the client, was tantamount
to client abandonment at a critical stage of the proceedings. M.S., 115 S.W.3rd at
543. Appellant is asking this Court to hold that S.D.’s complete failure to
communicate with him for the whole year of critical state pre-trial proceedings was
client abandonment and ineffective assistance of counsel. It is the type of denial of
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counsel that generates a presumption of harm and necessitates a reversal of the
termination case and a remand for a new trial. Appellant requests that this Court find
that he did not receive a fair trial, did not have effective representation during the
entirety of the pre-trial and that as a result, the results of the termination proceedings
were unreliable. The Department asserts that the Legislatures’ mandates of legal
duties to parents by counsel in termination cases should only result in a grievance
against counsel. This is a variation of the same argument it made in J.O.A. A
grievance does absolutely nothing to restore Appellant’s parent-child relationship or
to rectify the harm caused by the total failure of his counsel to communicate with him
for over a year while his case was pending in the trial court. In the Department’s
view, counsel can abandon the client, not communicate with the client, not seek or
follow any of the client’s objectives and that none of this should matter provided that
counsel engaged in some legal activities in the course of the case.
Appellee also sidesteps the whole jury or non jury issue by claiming the record
was not clear. However, the record could not be any clearer. Appellant’s attorney
acknowledged that the right to a jury trial would have been an important matter to
discuss with Appellant but that she did not remember if never discussed a jury trial
option with Appellant when she communicated with him for the first time on the
morning of his trial. (SRR P 48, L24-P49,L11). Counsel acknowledged that
2015.10.02 R EPLY BR IEF.w pd 16
Appellant had not requested a jury trial. No one refuted Appellant’s testimony that
the option was never presented to him and if it had been, he would have chosen a jury
trial. (SRR P85, L13-22). The pros and cons of a jury trial were not discussed with
Appellant because he never knew that he had those options. (SRR P85, L23-25).
Appellee also ignores that fact Appellant would have had to make the request
at least 30 days prior to the date Counsel first spoke to him. Tex. R. Civ. P 216a.
The Department urges that Appellant had no right to a jury trial. (Appellee Brief).
Such a claim is without merit. This claim comes from hindsight after the trial even
though counsel only met the client for the first time on the morning of trial. It ignores
the entire ineffectiveness claim. It ignores the factual evidence requirements of each
ground and the legal duties of both counsel and the Department. Finally, it ignores
completely the requirements of clear and convincing proof on best interest.
Moreover, the entirety of the case must fail as to Appellant. The attorney had
the same duties with respect to all aspects of the case, including the Managing and
Possessory Conservatorship of the child. Harm should be presumed in the entirety of
the case or alternatively, the court should find that harm has been satisfactorily
established and the entirety of the claims against Appellant should be reversed and
remanded for a new trial. Fundamentally, Appellee is requesting that this Court
ignore the statutory requirements of counsel, ignore the mandates of the Texas
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Supreme Court, ignore the mandates of the United States Supreme Court and ignore
Appellant’s constitutional statutory and common law rights to be recognized as a
parent, as a litigant who had a voice that mattered in the termination and
conservatorship proceedings.
Appellant’s criminal history and behavioral faults are apparent in the record.
Each of these occurred prior to the birth of his only child. And while this history is
clearly relevant in this proceeding, so are his rights and particularly the right to
effective assistance of counsel. Accordingly, Appellant respectfully requests this
Court to find ineffective assistance of counsel and reverse the termination of
Appellant’s parental rights and the conservatorship finding and remand the entire case
back to the trial court for a new trial.
Appellant prays for general relief
Respectfully submitted,
CONNOLLY & SHIREMAN, LLP
/s/William B. Connolly
William B. Connolly
State Bar No. 04702400
2930 Revere, Suite 300
Houston, Texas 77098
Telephone (713) 520-5757
Facsimile (713) 520-6644
wbc@conlawfirm.com
ATTORNEY FOR M.A.B., JR.
2015.10.02 R EPLY BR IEF.w pd 18
CERTIFICATION
I, William B. Connolly certify that this Appellant’s Response Brief was
prepared with WordPerfect 12, and that, according to that program’s word-count
function, the sections covered by Tex. R. App. P. 9.4(i)(1) contains 4898 words.
/s/ William B. Connolly
William B. Connolly
CERTIFICATE OF SERVICE
I certify that a true copy of the above Appellant’s Response Brief was served
on:
Sandra Hachem, Attorney for DFPS, 1019 Congress, 17th Floor, Houston,
Texas 77002 – via electronic filing service at Sandra.Hachem@cao.hctx.net;
and
John Spjut, Attorney Ad Litem for Child, 10924 Grant Road, Suite 623,
Houston, Texas 77070 – via electronic filing service at
spjutlaw@sbcglobal.net
on this the 2nd day of October, 2015.
/s/ William B. Connolly
William B. Connolly
2015.10.02 R EPLY BR IEF.w pd 19
in the Interest of M.A.B., IV, a Child
Combined Opinion