ACCEPTED
01-15-00388-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/28/2015 12:43:17 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00388-CV
FILED IN -
1st COURT OF --
---APPEALS
IN THE COURT OF APPEALS - - -
HOUSTON, --- TEXAS
- - ----ID K ------
FOR THE FIRST JUDICIAL DISTRICT10/28/2015
- - 12:43:17 - - PM
---- VO ------
OF TEXAS AT HOUSTON CHRISTOPHER - - A. PRINE
----
---- Clerk
IN THE INTEREST OF
M.A.B., IV FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
10/28/2015 12:43:17 PM
M.A.B, JR., CHRISTOPHER A. PRINE
Clerk
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 MOTION FOR REHEARING
AND REHEARING EN BANC
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.
M O TIO N FO R R EHEAR IN G EN BAN C HEAR IN G . FIN AL 2015.10.28.w pd
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 MOTION FOR REHEARING
AND REHEARING EN BANC
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
The opinion of the panel dispatches the application of the U.S. Supreme Court
opinion in Cronic v. United States with a legally incorrect premise, i.e., that Cronic
only applies in situations where there was a total absence of counsel. Cronic v.
United States, 466 U.S. 648 (1984). (OP26-28). This was not the holding of the
United States Supreme Court. Moreover, the panel gave a cursory, if not dismissive,
assessment to the legislative mandates on appointed attorney performance
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requirements in DFPS termination cases by determining that this legislation should
have absolutely no impact at all on the standard of review for claims of ineffective
assistance of counsel. (OP 26).
This court was split in its decision in the case of In re V.V., 349 S.W.3d 548
(Tex. App - Houston [1st Dist.] 2010 no pet.)(en banc). The en banc court
overturned a unanimous panel decision finding ineffective assistance of counsel.
After that decision was rendered, at the urging of the Supreme Court’s Permanent
Commission on Children, Family, and Youth, the Texas Legislature passed a law
mandating specific case performance criteria for appointed counsel for parents in
DFPS termination cases Tex. Fam. Code §107.0131. The record in this case,
establishes, as a matter of law, that trial counsel did not perform the statutory duties
as required by the Legislature. Rehearing and En Banc review is necessary to correct
the panel’s opinion that Cronic does not apply and that these Legislative mandates
have no impact on review of claims of ineffective assistance of counsel. (OP 26-28).
The panel also held that nothing in the record rebutted the presumption of finalization
when the record affirmatively established that a party to the proceeding was not given
notice of the final hearing.(OP 13). Rehearing and En Banc review is necessary to
correct this error.
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ISSUES PRESENTED ON REHEARING
ISSUE ONE
Whether Appellant was denied effective assistance of counsel and whether
Tex. Fam. Code §107.0131 requires a different standard of appellate
review of claims of ineffective assistance of counsel.
ISSUE TWO
Whether a Judgment is final because of a recitation or because it fairly
and openly disposed of all issues and all parties as required by the
Constitution and laws applicable to termination proceedings.
A. ISSUE ONE (RESTATED)
Whether Appellant was denied effective assistance of counsel and whether
Tex. Fam. Code §107.0131 requires a different standard of appellate
review of claims of ineffective assistance of counsel.
B. ARGUMENT AND AUTHORITIES IN SUPPORT OF ISSUE ONE
The Cronic court held that, “... the adversarial process protected by the sixth
amendment requires that the accused have ‘counsel acting in the role of an
advocate’”. United States v Cronic, 466 U.S. 648, 656 (1984). It necessarily
follows that the Court did not mean an advocate in a generic sense. Rather, it is
meant a specific advocate for the specific client and the lawyer working the case in
consultation and active participation with the client. In doing so, the Court stated,
“...if the process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated”. Id at 656-657. This case lost its character as
a confrontation between adversaries from the beginning. Not only was there no
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communication between the client and counsel, the client was filing motions to be
included within the adversarial process. While no one expects error free appointed
counsel, it is required that the attorney be reasonably competent and whose advice is
within the range of competence demanded of attorneys in criminal cases (or as here
in termination cases). Id at 655. The question is not whether counsel is reasonably
competent in general, but rather whether counsel provided reasonably competent
advice and adequate legal assistance in the particular case. Id at 655. When no
advice is given during critical stages of a termination proceeding the right to counsel
under the sixth amendment is denied. Cronic did not hold that it only applied when
there was a complete denial of counsel. It held that there are some circumstances that
are so likely to prejudice the accused that the cost of litigating their effect in a
particular case would be unjustified. Id at 658. A most obvious example would be
the complete denial of counsel. Id at 659. The court concluded that a trial would be
unfair if the accused is denied counsel at a critical stage of his trial. Id at 659. This
court’s holding disregards the necessity of direct communication and advice of
counsel throughout a termination case even though Texas has imposed a statutory
duty to do so. The full court should review this case, as it did in V.V. and decide
whether the constitutional right of Appellant to effective assistance of counsel was
denied and whether Tex. Fam. Code §107.0131 requires a different standard of
review. If the constitution requires counsel to provide advice to the client during
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critical stages of the proceedings; the Texas legislature mandated that counsel
actually confer with the client before each hearing; and the uncontradicted proof in
the record is that this did not occur, then the full court should set aside the panel’s
holding that Cronic did not apply and that counsel was not shown to be ineffective.
The panel also makes an erroneous factual statement asserting that counsel was
communicating with Appellant through his family. (OP 30). First this was factually
inaccurate. The testimony was in the form of a belief, not a fact. (SRR P31, L24 -
P32, L11). More importantly, the idea that counsel could discharge the legal
responsibility and duty of effective assistance through the use of third party
intermediaries (all of whom denied knowledge she was Appellant’s Attorney)
circumvents the basis of the constitutional guarantees and the legal duties imposed
upon counsel under the Texas Family Code. Since the panel dismissed the
application of Cronic, the full court should determine whether the surrounding
circumstances made it unlikely that Appellant received the effective assistance of
counsel. Cronic at 662 and 666.
In 2010, this Court struggled with this issue and a divided Court, in an en banc
opinion, upheld a termination of parental rights and overturned a unanimous opinion
of a panel on the application of Cronic. In re V.V., 349, S.W.3d 548 (Tex. App -
Houston [1st Dist.] 2010 no pet.)(en banc). Similarly to V.V., a lack of
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communication with the client and the presence of the client at the proceedings were
at issue in this case. Drawing a distinction to Cronic, the majority in V.V. noted that
there was no record to determine whether counsel followed the 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. V.V. at 560. The
record here is clear and uncontradicted that counsel could not have followed the
client’s instructions with respect to any of the critical stages of the proceedings prior
to trial, because counsel never attempted to directly communicate with the client until
the second morning of the trial.
Furthermore, counsel made no effort to communicate with the client or have
him present on March 17, 2015 or object to the proceeding going forward without his
presence. (SRR P39, L15-P42 L9). Moreover, the panel’s opinion supporting
termination under §161.001(1)(O) underscores the critical nature of the pre-trial
proceedings. At the Status Hearing the Court approved the Family Service Plan.
§263.102(a)(3). At some point, it became impossible for Appellant to complete the
services. (SRR P87, L9-15). At the Permanency Hearings, the Court is supposed to
hear evidence on the parent’s compliance or non-compliance with the Family Service
Plan. §263.306. At each of the hearings the Court is supposed to verify that a
parent’s counsel has actually discharged their legal duty to meet with their client prior
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to the hearing and/or excuse the attorney from compliance with a finding of good
cause. §107.013(a)(1)(G). No such meetings took place. No such findings were
made. Appellant, on the other hand, was filing pro se motions to participate which
were ignored. (SRR P42, L10 - P46, L4 Abatement Hearing; Ex 11, 12, 14).
Accordingly, counsel did not find out that it had become impossible for him to
comply because no attempt was made to directly communicate with him.
In his dissent in V.V., Justice Jennings foretold of the result reflected here, i.e.,
“the shutting down of all claims for the constructive denial of the right to counsel in
termination of parental rights cases, regardless of how egregious the inaction of trial
counsel. Id at 577. This dissent recognized as valid, the finding of the unanimous
panel opinion that prejudice must be presumed where there is actual or constructive
denial of the assistance of counsel. Id at 585. This occurs when a defendant is
deprived of the guiding hand of counsel. Id at 588. You can have no guiding hand
when the constitutional and statutory mandates are disregarded and there is no
communication with the client during the critical stages of the proceeding. Justice
Sharp agreed with the dissent of Justice Jennings in V.V. that there was a constructive
denial of counsel requiring the presumption of prejudice. Id at 608, 612.
En Banc rehearing is authorized by the Texas Rules of Appellate Procedure and
is important when there is an error of exceptional public importance or where the
opinion violates state law. V.V. at 606; Tex. R. App. P. 49.1 and 41.2 (c). Parental
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rights terminations cases are to be strictly construed in favor of parents. Holick v.
Smith, 685 S.W.2d 18, 21 (Tex. 1985). The legislature felt that the performance
criteria for parents counsel in termination cases was of sufficient or exceptional
public importance that it mandated performance standards. §107.0131. Undisputed
violations of these standards must have an impact on appellate review of claims of
ineffective assistance of counsel. By holding that they do not, the panel’s decision
disregards the additional mandates of code construction. In this regard, the word
“shall” imposes a duty. Tex. Gov. Code §311.016. The Court is required to ascertain
the legislative intent of the new law, the old law, the evil and the remedy. Tex. Gov.
Code §312.005. The statutes are to be liberally construed to achieve their purpose
and to promote justice. Tex. Gov. Code §312.006. By not evaluating the particular
violations of §107.0131, the panel circumvented the intended legislative purpose.
Unless consideration of legislatively mandated duties between attorney and client are
included in the analysis of claims of ineffective assistance of counsel, the statute will
become meaningless. This Court is mandated to construe statutes in a way that gives
effect to the Legislature’s intent. N.P. v. Methodist Hosp. 190 S.W.3d 217, 222-223
(Tex. App. - Houston [1st Dist.] 2006, pet. denied). En Banc review is necessary to
correct the lack of analysis of §107.0131 and its application to claims of ineffective
assistance of counsel.
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In assessing whether or not the critically important pre-trial hearings and trial
proceedings were reliable or produced a just result, if the full court does not apply
Cronic and presume harm, it should adopt a standard of review of ineffective
assistance claims that covers the entirety of the proceedings and incorporates an
analysis of the statutory duties. These factors should at least include the following:
1. Did counsel directly communicate on a regular basis with the client and
at a minimum of at least once before each hearing;
2. Did counsel provide advice and or counsel directly to the client during
the critical pre-trial and trial stages of the proceedings;
3. Was there a specific effort reflected in the record by counsel to obtain
the client’s presence before each temporary and the final hearing(s);
4. Did counsel abide by the client’s objectives during the representation;
5. Did counsel fully explain to the client their rights and duties during the
pre-trial and trial proceedings;
6. Did counsel fully discuss with the client, in a timely fashion, the right
to a jury trial;
7. Did counsel fully explain to the client, their duties under the Family
Service Plan and the Order adopting the same and the case specific
consequences for non-compliance;
8. Did counsel fully discuss with the client the right of the client to
designate alternative care givers and make appropriate diligent efforts
to follow the instructions of the client to seek placement of the child
with such care givers and prevent the bonding which is likely to occur
in foster to adopt placements;
9. Did counsel adequately and fully prepare the client for trial on the
merits; and
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10. Did counsel object to the Court conducting evidentiary hearings without
proper notice, the clients presence and an opportunity to be heard.
Despite the fact that none of these ten (10) criteria were met by trial counsel in
this case, the panel determined that Appellant did not properly show ineffective
assistance of counsel. Under the circumstances where an attorney never directly
communicates with the client prior to trial, without a presumption of harm or new
standard of review, Appellant is faced with an impossible task. According to the
panel, Appellant must prove the result would be different if the lawyer had done the
things the lawyer failed to do in order to prevent termination. (OP 33). At the time
of the abatement hearing, even if Appellant had presented names of alternative care
givers, there is no way he could have compelled DFPS to evaluate them or obtain
court approval of the same after a termination and placement had already occurred.
In other words, there is no conceivable way to demonstrate a different result would
likely have occurred precisely because the legislatively mandated performance
criteria were not followed. Accordingly, in light of §107.0131, the standards of
Strickland are no longer sufficient to cover claims of ineffective assistance of counsel
in termination cases. The full court should conduct as a en banc review of the panel’s
decision, establish a comprehensive standard of review of ineffective assistance
claims, grant Appellant’s Motion for Rehearing, find that Appellant was denied the
actual or constructive assistance of counsel and reverse and remand for a new trial.
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A. ISSUE TWO RESTATED
Whether a Judgment is final because of a recitation or because it fairly
and openly disposed of all issues and all parties as required by the
Constitution and laws applicable to termination proceedings.
B. ARGUMENTS AND AUTHORITIES IN SUPPORT OF ISSUE TWO
Appellant recognizes that a final judgment should be final if reasonable
construction would make it so. The premise before this court in this case is one of
fundamental fairness, notice and due process. The panel has held that an intervention
or pleading filed by a named party seeking affirmative relief can be disposed of and
denied on the merits of the claim because the judgment says so even though the
record affirmatively demonstrates that the party seeking such relief was never notified
of the setting of the final trial on the merits. (OP 10-14) (Appellant’s Brief
Appendices “E-M”). Despite the lack of notice to a named party, the panel
concluded that nothing in the record rebutted the presumption of finality. (OP 13).
A judgment, of necessity, needs to properly address all issues as to all parties in order
to be a final judgment. Lehman v Har-Con Corp. 39 S.W.3d 191, 200 (Tex. 2001).
All parties to a proceeding have a right to notice, process and an opportunity to be
heard. Before a judgment can withstand the scrutiny of review, it is fundamental law
that a party’s rights may not be disposed of without a fundamentally fair proceeding
of which the parties have proper notice and relative to which they have an opportunity
to be heard. Tex. Const. art. 1, Sec. 19; U.S. Const. amend 5, 14. According to
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Westlaw, Texas has 2,160 statutes and at least 10,000 cases that have within them the
requirement of notice and an opportunity to be heard. The full court should review
the opinion of the panel and determine whether a judgment should be final because
of a recitation or because it fairly and openly disposed of all issues and all parties as
required by the Constitution and laws applicable to termination proceedings. See
Peralta v. Heights Medical Center, Inc. 715 S.W.2d 721 (Tex. App. - Houston [1st
Dist.] 1986, writ ref’d n.r.e.) reversed, 485 U.S. 80 (1988). The United States
Supreme Court held in Peralta that “an elementary and fundamental requirement of
due process in any proceeding which is to be accorded finality is notice, reasonably
calculated under the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections. Id at 84.
Failure to give notice violates the most rudimentary demands of due process. Id. If
the panel fails to correct the opinion on rehearing, the full court should accept an en
banc rehearing of the panel’s opinion and find that the judgment of the trial court is
not final because it did not address and satisfy all issues as to all parties.
Appellant prays for general relief.
Respectfully submitted,
CONNOLLY & SHIREMAN, LLP
/s/William B. Connolly
William B. Connolly
State Bar No. 04702400
M O TIO N FO R R EHEAR IN G EN BAN C HEAR IN G . FIN AL 2015.10.28.w pd 12
2930 Revere, Suite 300
Houston, Texas 77098
Telephone (713) 520-5757
Facsimile (713) 520-6644
wbc@conlawfirm.com
ATTORNEY FOR M.A.B., JR.
CERTIFICATE OF COMPLIANCE
I, William B. Connolly certify that this Appellant’s Motion for Rehearing - En
Banc Hearing 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 3147 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;
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 28th day of October, 2015.
/s/ William B. Connolly
William B. Connolly
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