Full Opinion (html_with_citations)

                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00064-CV


IN THE INTEREST OF M.P. AND
J.P., CHILDREN


                                     ------------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      In four issues, appellant Mother appeals termination of her parental rights

to Mike and Jessy.2     Mother complains that the trial court erred by allowing

certain jury questions to be presented to the jury in the jury charge and that she

received ineffective assistance of counsel. We will affirm.




      1
       See Tex. R. App. P. 47.4.
      2
         We use aliases to refer to the children involved in this case and ―Mother‖
to refer to their biological parent. See Tex. R. App. P. 9.8(b)(2).
                                 II. BACKGROUND

      The Texas Department of Family and Protective Services (Department)

filed a petition for protection of children, for conservatorship, and for parental-

right termination in a suit affecting the parent-child relationship on November 8,

2007. The Department placed the children, Mike and Jessy, in foster care; and

the trial court ordered that the Department act as temporary managing

conservator of both children. At that time, the Department alleged that Mother

was unable to accept parental responsibility for Mike and Jessy and that Mother

failed to provide a suitable home environment for both children. Mother also

requested that the children be placed in foster care.

      The Department brought its termination case to trial in September 2008.

On February 23, 2009, the trial court found that Mother had knowingly placed the

children or knowingly allowed them to remain in conditions or surroundings which

endangered their physical or emotional well-being and that Mother had engaged

in conduct or knowingly placed Mike and Jessy with persons who engaged in

conduct which endangered their physical or emotional well-being.          See
Tex. Fam. Code Ann. § 161.001
(D), (E) (Vernon Supp. 2010).            But the trial court

further found that termination of Mother’s parental rights to Mike and Jessy was

not in the best interests of the children. The trial court ordered that Mother work

a service plan before Mike and Jessy could be returned to her.




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      On June 19, 2009, the Foster Parent filed an original petition to terminate

Mother’s parental rights to Mike and Jessy. The Foster Parent alleged that the

trial court had previously found that Mother had endangered Mike and Jessy, that

the circumstances had materially and substantially changed since the February

23, 2009 findings, and that termination was now in the best interests of Mike and

Jessy. The Foster Parent also alleged that Mother failed to comply with the

provisions of a court order that specifically established the actions necessary for

Mike and Jessy to be returned to Mother. See
id.
 at § 161.004 (Vernon 2008).

      On February 8, 2010, the trial court signed an order of termination. The

trial court’s order was based on a jury’s findings that the trial court had previously

found that Mother had endangered Mike and Jessy; that the circumstances of the

children, Mother, the Department, or the Foster Parent had materially and

substantially changed since February 23, 2009; and that Mother had failed to

comply with the previous court-ordered service plan. The jury also found that

termination of Mother’s parental rights to Mike and Jessy was now in the

children’s best interests and that appointment of the Foster Parent as Mike and

Jessy’s possessory conservator was in their best interests. This appeal followed.

                                      III. DISCUSSION

      A.     Jury Charge Issues

      In her first, second, and third issues, Mother complains that the trial court

erred by allowing certain questions to be submitted to the jury in the jury charge.



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First, Mother complains that the trial court erred by allowing jury question number

one, based on Texas Family Code 161.004—the statute requiring material and

substantial change—to be submitted to the jury. See id. Mother claims that

section 161.004 is unconstitutional because, according to Mother, ―[i]t is

inconceivable and contrary to all constitutional protections that a statute would

allow the termination of parental rights based on the changed circumstances of a

foster parent or a governmental agency.‖ Second, Mother complains that the trial

court erred by submitting a jury question that ―presented to the jury . . . that the

grounds for termination had already been decided by the trial court and [the

jury’s] sole responsibility was deciding best interest.‖ Finally, Mother argues that

the trial court erred by allowing what Mother alleges was a waived issue to be

presented as a jury question.3 We conclude that Mother failed to preserve each

of these issues for our review.

      A party objecting to a charge must point out distinctly the objectionable

matter and the grounds of the objection. Tex. R. Civ. P. 274. Any complaint as

to a question, definition, or instruction, on account of any defect, omission, or

fault in pleading, is waived unless specifically included in the objections. Id.; see

      3
       Mother argues that because the appellees only discussed the best
interest prong under Texas Family Code 161.001 during voir dire and did not
discuss or question the jury panel regarding Texas Family Code 161.004,
appellees somehow waived or abandoned the issue. Mother cites no authority
for her position that not addressing an issue in voir dire is tantamount to
abandonment of a claim. Even though we do not address the merits of this
issue, this court notes that the issue was pleaded, litigated by counsel for all
sides, and submitted to the jury in the jury charge.

                                     4
also Tex. R. App. P. 33.1(a).    Moreover, the constitutional dimension of the

parent-child relationship does not automatically override the procedural

requirements for error preservation. In re B.L.D.,
113 S.W.3d 340
, 350–52 (Tex.

2003) (stating that except for fundamental error, appellate courts are not

authorized to consider issues—even constitutional error—not properly raised by

the parties and declining to apply the criminal fundamental-error doctrine in

parental rights termination cases when complaint involves unpreserved alleged

jury charge error), cert. denied,
541 U.S. 945
 (2004). With only a few recognized

exceptions, even constitutional complaints are waived if not properly preserved.

See id. at 350–51. The Texas Supreme Court has continually explained that the

rules governing error preservation must be followed in cases involving

termination of parental rights as in other cases in which a complaint is based on

constitutional error. Id.; In re K.A.F.,
160 S.W.3d 923, 928
 (Tex.), cert. denied,
546 U.S. 961
 (2005).

      Mother admits, and the record demonstrates, that she did not complain to

the trial court about these alleged jury-charge errors. Because Mother did not

object to the submission of these questions to the jury, these complaints have not

been preserved for our review. Id. Thus, we overrule Mother’s first, second, and

third issues.




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      B.       Effective Assistance of Counsel

      In her fourth issue, Mother argues that her trial counsel was ineffective

because her trial counsel stipulated to the trial court’s prior family code

161.001(D) and (E) findings; her trial counsel allowed the best-interest finding to

be ―bifurcated by the [trial c]ourt‖ from the (D) and (E) findings; and her trial

counsel did not object to the jury charge to preserve her issues one, two, and

three for appellate review.     We disagree that Mother’s trial counsel was

ineffective.

      There is a right to effective assistance of counsel in termination cases. In

re M.S.,
115 S.W.3d 534, 544
 (Tex. 2003). We review ineffective assistance

claims under the Strickland standard.
Id. at 549
.    To establish ineffective

assistance of counsel, an appellant must show by a preponderance of the

evidence that her counsel’s representation fell below the standard of prevailing

professional norms and that there is a reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been different. Strickland

v. Washington,
466 U.S. 668, 687
,
104 S. Ct. 2052, 2064
 (1984); Salinas v.

State,
163 S.W.3d 734, 740
 (Tex. Crim. App. 2005); Mallett v. State,
65 S.W.3d 59
, 62–63 (Tex. Crim. App. 2001); Thompson v. State,
9 S.W.3d 808, 812
 (Tex.

Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.



                                    6
Thompson,
9 S.W.3d at 813
. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89,
104 S. Ct. at 2065
.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel's conduct fell within a wide range of

reasonable representation. Salinas,
163 S.W.3d at 740
; Mallett,
65 S.W.3d at 63
.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim.
Thompson, 9
 S.W.3d at

813–14. ―In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.‖

Salinas,
163 S.W.3d at 740
 (quoting Mallett,
65 S.W.3d at 63
).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial whose

result is reliable. Strickland,
466 U.S. at 687
,
104 S. Ct. at 2064
. In other words,

appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.
Id. at 694
,
104 S. Ct. at 2068
.

      In many cases, we are unable to determine whether counsel’s actions

were grounded in sound trial strategy because the record is silent as to possible

trial strategies. In this case, however, the record unequivocally demonstrates

that counsel’s trial strategy was to convince the jury that it was not in Mike’s and



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Jessy’s best interests to have their parent-child relationship with Mother

terminated. Counsel’s strategy thus entailed challenging an essential element of

the termination proceeding.4 It is further clear from the record that trial counsel

strategically introduced evidence that since the February 23, 2009 order

establishing the actions necessary for Mother to obtain the return of Mike and

Jessy, Mother had made some progress on her service plan; found suitable

housing; entered into a stable relationship; planned to get married; stopped using

controlled substances; quit dancing at a men’s club; and had been caring for her

youngest child, who is not subject to this suit.

      Considering that the trial court had previously found by clear and

convincing evidence that Mother had both endangered and left Mike and Jessy in

endangering surroundings, counsel could have reasonably concluded that it

would have been disingenuous to contest the section 161.001(1)(D) and (E)

grounds—the jury was still required to find by clear and convincing evidence that

termination was in Mike’s and Jessy’s best interests. See
Tex. Fam. Code Ann. § 161.001
(2). Further, trial counsel repeatedly contested that Mother had failed

to follow the trial court’s order which, if followed, would have allowed Mike and

Jessy to be returned to her. Mother has failed to rebut the strong presumption

      4
        In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination is
in the best interest of the child.
Tex. Fam. Code Ann. § 161.001
(1), (2); In re
J.L.,
163 S.W.3d 79, 84
 (Tex. 2005).


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that counsel’s conduct fell within the wide range of reasonable representation.

Consequently, Mother has failed to meet her burden under the first Strickland

prong. See Salinas,
163 S.W.3d at 740
; Mallett,
65 S.W.3d at 63
. We overrule

Mother’s fourth issue.

                                     IV. CONCLUSION

         Having overruled each of Mother’s four issues, we affirm the trial court’s

order.




                                              BILL MEIER
                                              JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: December 23, 2010




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