Today I was interviewed by Katie Award winning reporter John Council with Texas Lawyer Magazine about the In re JOA opinion issued recently by the Texas Supreme Court for the Video Blog Reversed and Remanded. Seriously, you should go look at the video — CLICK HERE. (I wish I had worn a different shirt!)
The Texas Supreme Court declared Texas Family Code section 263.405(b) unconstitutional as applied in this case.
263.405 requires a parent appealing the termination of his parental rights by the government (Family Protective Services) to file within 15 days of the signing of the termination order a Statement of Points detailing exactly the issues to be addressed in an appeal. What happens when the lawyer for the parent fails to timely do so? The law says the parent cannot appeal.
In re JOA holds that, where the trial court lawyer fails to file the statement of points, the appellate court is not precluded by the statute from considering whether the trial court lawyer’s failure rises to the level of ineffective assistance of counsel requiring reversal of the termination. To prove a claim for ineffective assistance of counsel, the party must show, not only that the lawyer’s actions were deficient (example, failing to file the Statement of Points) but also that the failure was somehow harmful (example, if the lawyer had filed the SOP, the appeal would have been meritorious). Where, as in JOA, the claim for ineffective assistance of counsel was well-founded, 263.405’s prohibition against the trial court from hearing the appeal violates the terminated parent’s constitutional right of due process.
This has been a controversial issue in family law appeals since the law was passed. The various courts of appeals in the state have disagreed over the intersection of the Statement of Points requirement with the United States Constitution. Now, we have a decision, at least as to these facts.