In Interest of JOA, No. 08-0379 (Tex. May 1, 2009)(Medina) (constitutionality of short  
deadline for
parental rights appeal and requirement for preservation of error by statement of points
in the trial court)(
ineffective assistance of counsel claim)

IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., AND C.T.M., CHILDREN; from Collingsworth County;
7th district (07-07-00042-CV, 262 SW3d 7, 02-25-08)  
The Court modifies the court of appeals' judgment, affirms the judgment as modified, and remands
the case to the trial court.
Justice Medina delivered the opinion of the Court. [pdf version on court's web site]
Willett delivered a concurring opinion. [pdf version of concurrence]
briefs filed in this case in the Texas Supreme Court   

In Interest of J.O.A., 283 S.W.3d 336 (
Tex. 2009)
Argued October 14, 2008

   Justice Medina delivered the opinion of the Court.

   Justice Willett filed a concurring opinion.

   The Texas Family Code requires that a statement of points on which a party
intends to appeal be presented to the trial court within fifteen days after the
signing of a final order terminating parental rights. Tex. Fam. Code § 263.405
(b). The Code further provides that an appellate court is to consider only those
issues presented to the trial court in a timely filed statement of points. Id. §
263.405(i). The issue in this parental rights termination case is whether the
failure to follow these procedural rules in the Family Code precludes appellate
review of an ineffective assistance of counsel claim.

   Here, the indigent parents did not file a statement of points, but the court of
appeals nevertheless reached the merits of the parents’ ineffective assistance
of counsel claim. 262 S.W.3d 7. We conclude, like the court of appeals, that an
ineffective assistance of counsel claim can be raised on appeal despite the
failure to include it in a statement of points. We also agree with the court of
appeals that section 263.405(i) is unconstitutional as applied when it precludes
a parent from raising a meritorious complaint about the insufficiency of the
evidence supporting the termination order.

   The court of appeals reversed the parental termination order in part,
concluding that the evidence was both legally and factually insufficient to
terminate the parental rights of the father in this case, and remanded the case
to the trial court for further proceedings on the issue of custody. Although we
disagree that the evidence was legally insufficient to support the termination of
the father’s parental rights, we agree that the cause must be remanded and
accordingly modify the court of appeals’ judgment to remand the cause for a
new trial on the issue of the father’s parental rights.


   This case concerns the parental rights of Timothy and Trena M. The parents
have three children: T.J.A.M., born in 1996, and twins, T.J.M. and C.T.M., born
in 2005.[1] At the time of the twins’ premature birth, Trena and the twins tested
positive for cocaine. Trena also tested positive for barbiturates. Timothy and
Trena have separated several times, including during some of the pregnancy,
but reconciled before the twins’ birth.

   Learning of Trena’s drug use, the Department of Family and Protective
Services (“Department”) intervened, removing the twins from their parents’
custody and placing them with foster parents. The older child, T.J.A.M., was
placed with her maternal grandmother where she had lived while Trena was
previously incarcerated. The trial court appointed the Department temporary
sole managing conservator of the children, and the Department implemented a
Family Service Plan to improve Timothy’s and Trena’s parenting skills and
reunify the family.

   The plan, however, failed, and the case proceeded to a bench trial that
resulted in the involuntary termination of the parents’ parental rights to the
twins, and the appointment of the Department as managing conservator. The
trial court did not terminate parental rights to the couple’s oldest child, T.J.A.M,
but appointed Trena’s mother as managing conservator. The trial court’s final
order was signed February 16, 2007.

   Five days later, on February 21st, Trena’s trial counsel filed a notice of
appeal and a motion to withdraw. Timothy’s trial counsel did the same on
February 22nd. Although the trial court never ruled on the motions to withdraw,
it did subsequently appoint appellate counsel for Timothy and Trena but too
late for either to meet the Family Code’s fifteen-day deadline for filing a
statement of points. Tex. Fam. Code § 263.405(b).

   Even though they had not filed a statement of points, the parents appealed
the trial court’s termination and custody order, challenging the sufficiency of the
evidence, the ineffectiveness of their trial counsel, and the constitutionality of
section 263.405. The court of appeals concluded that Timothy’s and Trena’s
trial counsel were both ineffective for failing to file a statement of points but that
the failure ultimately deprived only Timothy of due process. 262 S.W.3d at 19-
24. The court accordingly affirmed the termination order as to Trena, but
reversed as to Timothy, concluding that the evidence was legally and factually
insufficient to support the termination of his parental rights to the twins. The
court of appeals remanded the issue of Timothy’s custody rights to the twins for
further proceedings, affirming the remainder of the trial court’s order. Id. at 24-
25. Only the Department perfected an appeal to this Court.


   The Family Code provides that in parental termination cases a statement of
points, detailing what the party intends to appeal, must be filed with the trial
court within fifteen days of the termination order.[2] This statement may be
combined with a motion for new trial. Tex. Fam. Code § 263.405(b). The trial
court must hold a hearing within thirty days of the termination order to consider
any motion for new trial or issue of indigence. Id. § 263.405(d). The Family
Code bars an appellate court from considering any issue not presented to the
trial court in a timely filed statement of points. Id. § 263.405(i).

   The Department complains that the court of appeals should not have
reviewed the termination order in this case because neither Timothy nor Trena
filed a statement of points in the trial court as the Family Code requires. Despite
this alleged error, the Department prevailed in the court of appeals as to Trena;
the court affirmed termination of her parental rights to the twins, and she has
not filed a petition for review. Thus, the court of appeals’ judgment affirming the
termination of Trena’s parental rights is final, and only Timothy’s parental rights
to the twins remain at issue here.

   The Department does not squarely address the constitutional concerns
raised in the court of appeals. Instead, the Department submits that the right to
appeal a termination order is a statutory right, not a constitutional one, and that
the Legislature clearly has the power to restrict, limit, or even deny that right.
The Department further submits that the procedural requirements of the statute
here are clear and unambiguous, providing for no exceptions. The Department
concedes, as it must,[3] that indigent parents are entitled to counsel but argues
that counsel need not be competent because the procedural scheme makes no
provision for incompetence. The argument ignores our holding in In re M.S.
“that the statutory right to counsel in parental-rights termination cases
embodies the right to effective counsel.” 115 S.W.3d 534, 544 (Tex. 2003). In
fact, the Department generally ignores our decision in this case altogether.

   In M.S., the indigent parent complained that her attorney failed to provide
competent representation in violation of her due process rights. Id. at 543.
Specifically, the parent argued, as in this case, that her attorney was ineffective
for not following the appropriate procedure to preserve her complaint regarding
the factual sufficiency of the evidence. Id. at 543-44, 546. After recognizing the
indigent parent’s right to competent counsel, we turned to the question of what
constitutes ineffective assistance. In answering that question, we followed the
two-pronged analysis of the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984):

First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

In re M.S., 115 S.W.3d. at 545. Thus, an ineffective assistance of counsel claim
requires a showing of a deficient performance by counsel so serious as to deny
the defendant a fair and reliable trial.

   We further concluded in M.S. that due process considerations should control
our review of a rule governing preservation of a factual sufficiency complaint in
parental rights termination cases. Id. at 547. Although we recognized that a
right of appeal might not be constitutionally required, once granted, the right
could not be unreasonably withdrawn. Id. (quoting M.L.B. v. S.L.J., 519 U.S.
102, 111 (1996) (“once established, these avenues must be kept free of
unreasoned distinctions that can only impede open and equal access to the
courts”)). And, because error preservation in the trial court is the “threshold to
appellate review,” we concluded that it should be reviewed under the
procedural due process analysis established by the United States Supreme
Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In re M.S., 115 S.W.
3d at 547.

   Under the Eldridge analysis, a court must “weigh three factors – the private
interests at stake, the government’s interest in the proceeding, and the risk of
erroneous deprivation of parental rights – and balance the net result against
the presumption that our procedural rule comports with constitutional due
process requirements.” Id. (footnote omitted). When weighing these factors in
M.S., we concluded that “the parent’s fundamental liberty interest in
maintaining custody and control of his or her child, the risk of permanent loss of
the parent-child relationship, and the parent’s and child’s interest in a just and
accurate decision” weighed heavily in favor of permitting appellate review of the
sufficiency of the evidence despite counsel’s unjustifiable failure to preserve
error. Id. at 548. We likewise noted the State’s fundamental interest in
protecting the child’s best interests, interests that are not antagonistic to those
aforementioned. Id. We also noted the associated interests of the State and the
child in an efficient and speedy resolution of the matter so as not to compound
harm to the child through inaction or delay, but concluded that the State’s
interests in economy and efficiency paled in comparison to the private interests
at stake. Id.

   We concluded that the State, the parent, and the child shared an interest in
an expeditious and final decision but 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. (citing Santosky v. Kramer, 455 U.S. 745, 766-67
(1982)). We said that “[o]nce it is clear that the 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.” In re M.S., 115 S.W.3d at 548-49 (citing
Santosky, 455 U.S. at 767). Thus, we concluded that the State’s goal of
ensuring the child’s safety and stability was served by procedures promoting an
accurate determination of whether the natural parent could provide a normal
home and disserved by procedures that did not. In re M.S., 115 S.W.3d at 549.

   Finally, we concluded that the fundamental liberty interests at issue were too
dear and the risk of erroneous deprivation too significant to countenance the
waiver of a parent’s appellate rights through procedural neglect under these
circumstances. Instead, we held that “if counsel’s failure to preserve a factual
sufficiency complaint is unjustified, then counsel’s incompetency in failing to
preserve the complaint raises the risk of erroneous deprivation too high, and
our procedural rule governing factual sufficiency preservation must give way to
constitutional due process considerations.” Id. Although the procedural
preservation rule at issue in M.S. was a civil court-made rule requiring a motion
for new trial as a predicate for appellate review of a factual sufficiency issue,
and the procedural rule here is a statute to the same effect, the due process
clause applies equally to both situations. U.S. Const. amend. XIV, § 1; Tex.
Const. art. I, § 19.

   We cautioned in M.S., however, that not every failure to preserve factual
sufficiency issues would rise to the level of ineffective assistance. In re M.S.,
115 S.W.3d at 549. The presumption is that “‘counsel’s conduct falls within the
wide range of reasonable professional assistance,’ including the possibility that
counsel’s decision not to challenge factual sufficiency was based on strategy,
or even because counsel, in his professional opinion, believed the evidence
factually sufficient such that a motion for new trial was not warranted.” Id.
(quoting Strickland, 466 U.S. at 689). The parent’s burden is to show that
“‘counsel’s performance fell below an objective standard of reasonableness.’”
In re M.S., 115 S.W.3d at 549 (quoting Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001)); Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim.
App. 1999). We agree with the court of appeals that Timothy met that burden

   The failure of Timothy’s trial counsel to file a statement of points on his
behalf was neither strategic nor a concession to any lack of perceived merit.
His trial counsel filed a notice of appeal, but did so simultaneously with his
motion to withdraw and did nothing further. There the matter rested until the
trial court appointed appellate counsel some days after the statement was due.
Timothy was still represented by his trial counsel when the fifteen-day deadline
to file the statement of points passed. Tex. R. Civ. P. 10. Trial counsel’s failure
to follow through with his representation until relieved of that duty was
tantamount to abandoning his client at a critical stage of the proceeding. See
Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990) (stating attorney must
satisfy the requirements of Rule 10 of the Texas Rules of Civil Procedure to
withdraw). We accordingly agree with the court of appeals that Timothy was
entitled to effective assistance of counsel through the deadline date for filing a
statement of points and that trial counsel’s performance during this period was
seriously deficient.

   Part of the problem here may be resolved by better communication between
trial court and counsel. Often in these cases, there is a transition from trial to
appellate counsel after rendition. Because of the accelerated appellate
timetable and the critical fifteen-day deadline for the statement of points, and
because trial and appellate counsel are often different people, there can be
misunderstandings as to which attorney is responsible for filing a motion for
new trial, a statement of points on appeal, and a notice of appeal.

   Given the accelerated timetable, the burden should logically fall on trial
counsel, and in this case necessarily so because Timothy’s appellate counsel
was not appointed until after the fifteen-day period had run. See, e.g., In re H.
R., 87 S.W.3d 691, 703 (Tex. App.—San Antonio 2002, no pet.) (concluding
that practical effect of accelerated appellate timetable is to burden trial counsel
with responsibility of preserving client’s appellate rights). As one court of
appeals has noted, the fifteen-day deadline is a trap for the unwary. In re R.J.
S., 219 S.W.3d 623, 627 (Tex. App.—Dallas 2007, pet. denied). That court of
appeals has further suggested that trial courts should alert parents to the
requirements of section 263.405 at the end of the final order terminating
parental rights. Id. We agree and suggest further that the best way to avoid
ineffective assistance of counsel claims in the future is for the trial courts to
take a proactive approach, assuring that indigent parents do not inadvertently
waive their appellate rights under the Family Code. Because of the accelerated
nature of these cases, trial courts must act expeditiously when appointing new
counsel for the appeal.


   An ineffective assistance of counsel claim, however, requires more than
merely showing that appointed counsel was ineffective. There are two elements
to the Strickland standard, and, under the second, the defendant must show
that counsel’s “deficient performance prejudiced the defense . . . that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. The court of appeals concluded
that the second element had been met in this case because, but for counsel’s
unprofessional error, the result of the proceeding would have been different;
specifically, had counsel properly preserved error by filing the statement of
points, the court of appeals would have reversed the termination order because
the evidence was insufficient to support the relevant grounds for termination of
Timothy’s parental rights. 262 S.W.3d at 19, 24.

   Proceedings to terminate parental rights under the Family Code require proof
by clear and convincing evidence. Tex. Fam. Code § 161.001(1). Clear and
convincing evidence is “proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be
established.” Id. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
When the legal sufficiency of the evidence is challenged:

[A] court should look at all the evidence in the light most favorable to the finding
to determine whether a reasonable trier of fact could have formed a firm belief
or conviction that its finding was true. To give appropriate deference to the
factfinder’s conclusions and the role of a court conducting a legal sufficiency
review, looking at the evidence in the light most favorable to the judgment
means that a reviewing court must assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so. A corollary to
this requirement is that a court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. This does
not mean that a court must disregard all evidence that does not support the
finding. Disregarding undisputed facts that do not support the finding could
skew the analysis of whether there is clear and convincing evidence. If, after
conducting its legal sufficiency review of the record evidence, a court
determines that no reasonable factfinder could form a firm belief or conviction
that the matter that must be proven is true, then that court must conclude that
the evidence is legally insufficient.

In re J.F.C., 96 S.W.3d at 266.

   When the factual sufficiency of the evidence is challenged, only then is
disputed or conflicting evidence under review. As we said in J.F.C.: “If, in light
of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could
not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient.” Id. The court of appeals should further explain in its
opinion “why it has concluded that a reasonable factfinder could not have
credited disputed evidence in favor of the finding.” Id. at 267.

   The court of appeals here found the evidence to be both legally and factually
insufficient to support the trial court’s grounds for terminating Timothy’s
parental rights. Those grounds included the trial court’s determination that
Timothy had (1) knowingly placed or knowingly allowed the children to remain
in conditions or surroundings which endanger the physical or emotional well-
being of the children; and (2) engaged in conduct or knowingly placed the
children with persons who engaged in conduct which endangers the physical or
emotional well-being of the children. Tex. Fam. Code § 161.001(1)(D), (E). The
court of appeals concluded that there was no evidence to support the first
ground because the twins had been removed from Timothy at birth. 262 S.W.3d
at 24. The twins had therefore always been in “‘conditions or surroundings’
dictated by the Department, not Timothy.” Id.

   As to the second ground, the court concluded that while there was evidence
calling Timothy’s parenting skills into question recent improvements in Timothy’
s parenting skills, life choices, and living situation prevented a reasonable
factfinder from forming a firm belief or conviction that Timothy engaged in
conduct exposing the twins to loss or injury or to emotional or physical
jeopardy. See id. (“insufficient evidence of Timothy’s continued drug use,
subsequent incarceration, or other anti-social behavior” prevented firm
conviction of endangerment). The court noted, however, that a child need not
suffer actual injury to have been endangered and that a parent’s drug use and
its effects might establish an endangering course of conduct. Id.

   We have previously said that endangering conduct is not limited to actions
directed towards the child. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). It necessarily follows that the endangering conduct may
include the parent’s actions before the child’s birth, while the parent had
custody of older children, including evidence of drug usage. See id. (stating
that although endanger means more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment, it is not necessary
that the parent’s conduct be directed at the child or that the child actually
suffers injury); see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort
Worth 2004, pet. denied) (holding that courts may look to parental conduct both
before and after child’s birth to determine whether termination is appropriate).
We accordingly agree that a parent’s use of narcotics and its effect on his or
her ability to parent may qualify as an endangering course of conduct.[4]

   Timothy admitted to daily marijuana use before the twins were born, although
he testified that he never used drugs in his older daughter’s presence. Timothy
and Trena also had a history of domestic violence. Timothy’s mother testified
that there had been two or three incidents of domestic violence. Trena’s drug
use was the cause of many of the problems in the marriage. Timothy testified
about forcing Trena to leave their home “quite a few times” because of her drug
use. On the majority of these occasions, he permitted Trena to leave with their
daughter although he presumably knew this was not in their daughter’s best

   After the removal of the children, Timothy was allowed supervised visitation
and was given a copy of his service plan. Part of the service plan required
Timothy to submit to drug tests, two of which he missed. A few months after the
twins were removed, Timothy was incarcerated on domestic violence charges,
filed by Trena in 2004, which she later recanted. Upon his release from jail,
Timothy was advised to attend parenting classes and take a drug screening
test. He did not complete the drug screen and subsequently moved to
California where he attended a substance abuse program and parenting
classes. After returning to Texas, Timothy obtained steady employment,
improved housing, and reliable transportation for his children. He also attended
parenting classes, exercised regular visitation, and passed three successive
drug tests. However, Timothy testified that he tested positive for marijuana
shortly before the final hearing commenced in this case. He also remained
delinquent in his child support.

   Focusing on Timothy’s positive improvement as a parent, the court of
appeals concluded that the evidence was both “legally and factually insufficient
to support the predicate finding of conduct endangering the children.” 262 S.W.
3d at 24. We disagree regarding the legal sufficiency of the evidence. While the
recent improvements made by Timothy are significant, evidence of improved
conduct, especially of short-duration, does not conclusively negate the
probative value of a long history of drug use and irresponsible choices. Viewing
all the evidence in the light most favorable to the trial court’s judgment and
recognizing that the factfinder, not the appellate court, is the sole arbiter of the
witnesses’ credibility and demeanor, we conclude that there was some
evidence of endangerment on which a reasonable factfinder could have formed
a firm belief or conviction of endangerment. Tex. Fam. Code § 161.001(1)(E); In
re J.F.C., 96 S.W.3d at 266.

   The court of appeals’ analysis here instead suggests a comparison of
Timothy’s conduct over time, attributing greater weight to his recent
improvements and less to his past challenges. While we do not question the
court’s logic, we do reject its use here as part of the legal sufficiency review.
See In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003) (“Even under the standard
we articulated in In re J.F.C., this reweighing of the evidence is improper.”).
Weighing conflicting evidence and inferences to determine whether a verdict
should be vacated as manifestly unjust is appropriately a part only of the
reviewing court’s factual sufficiency review, a matter committed under the
Texas Constitution to the courts of appeals and not to this Court. Tex. Const.
art. V, § 6.

* * *
   In sum, we agree that Timothy’s ineffective assistance of counsel claim
raises due process concerns and that section 263.405(i) of the Family Code is
unconstitutional to the extent it prevents a court from considering those claims.
We do not agree with the court of appeals, however, that there was no clear
and convincing evidence to support termination of Timothy’s parental rights on
the ground of endangerment. But even though the court of appeals found no
evidence to support this ground, it nevertheless remanded the cause to the trial
court for further proceedings on the issue of custody. Because a remand is also
the appropriate judgment when evidence is found to have been factually
insufficient, we modify the court’s judgment to remand the cause to the trial
court for a new trial on the issue of Timothy’s parental rights.

David M. Medina



[1] When this case began, the parental rights to a fourth child, J.O.A., were at issue. J.O.A. is Trena’
s child from a previous relationship and has lived with his maternal grandmother since the age of
four. The trial court did not terminate Trena’s parental rights to J.O.A. but appointed the child’s
maternal grandmother permanent managing conservator. J.O.A., who was born in 1989, is now an

[2] Section 263.405(b) of the Family Code was amended in 2007, after the commencement of this
parental termination proceeding. The amendment made no apparent substantive change to the
statement of points requirement. The former provision, applicable here, provided:

Not later than the 15th day after the date a final order is signed by the trial judge, a party intending
to appeal the order must file with the trial court a statement of the point or points on which the party
intends to appeal. The statement may be combined with a motion for new trial.

Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2397 (amended 2007)
(current version at Tex. Fam. Code § 263.405(b)).

[3] Texas Family Code section 107.013(a)(1) guarantees indigent persons a right to counsel in
government initiated parental rights termination cases.

[4] In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (“Evidence of illegal drug use or
alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the
parent has engaged in a course of conduct which has the effect of endangering the child.”); Toliver
v. Tex. Dep’t of Family and Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (“Evidence of narcotics use and its effect on a parent’s life and her ability to parent
may establish that the parent has engaged in an ‘endangering course of conduct.’”); In re R.W., 129
S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule, conduct that
subjects a child to a life of uncertainty and instability endangers the physical and emotional well-
being of a child. Drug use and its effect on a parent’s life and his ability to parent may establish an
endangering course of conduct.”) (citation omitted).