
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-05-451 CV

____________________


IN THE INTEREST OF S.A.S. AND M.I.S.




On Appeal from the 284th District Court
Montgomery County, Texas

Trial Cause No. 04-03-02411-CV




OPINION 
 We must decide two issues in this parental-rights termination case.  We must
determine whether the jury instruction included an unconstitutional ground among several
grounds used to terminate the mother's parental rights and whether the mother was denied
the effective assistance of counsel.  We overrule both issues raised by the mother and affirm
the trial court.
I. BACKGROUND
	Angela Ann Schiveley, Appellant, and her husband, Fred William Schiveley, are the 
parents of S.A.S. and M.I.S., the children who are the subject of this suit.  After receipt and 
investigation of a complaint from one of the children, the Texas Department of Family and
Protective Services (the "Department") immediately removed the children from Angela and
Fred on March 30, 2004.  The trial court subsequently approved the Department's emergency
removal.  On April 8, 2004, the trial court entered a temporary order following an adversary
hearing, in which the court appointed separate counsel for both Angela and Fred.  On June
7, 2004, following a status hearing, the trial court approved the Family Service Plan proposed
by the Department and ordered that Angela and Fred comply with the service plan.  Several
permanency hearings occurred over the next several months.  During this period, Angela
never complained of the requirements set forth in the plan.
	The trial terminating Angela's and Fred's parental rights occurred in August of 2005. 
After each side presented its case, the trial court instructed the jury that it could terminate
Angela's parental rights, if, by clear and convincing evidence, she engaged in at least one
activity described in subsections (D), (E), (O), or (P) of Section 161.001(1) of the Texas
Family Code, and the termination was in the best interest of the child.  See Tex. Fam. Code
Ann. §§ 161.001(1)(D), (E), (O), (P), 161.001(2) (Vernon Supp. 2005).  Angela did not
object to the form of the charge.  The jury returned its verdict on August 25, 2005,
terminating Angela's and Fred's parental rights with respect to both S.A.S. and M.I.S.  On
September 19, 2005, the trial court entered its judgment. 
	Angela timely filed her first motion for new trial.  The trial court denied her motion
on October 5, 2005.  Shortly thereafter, Angela filed her notice of appeal and first amended
motion for new trial.  On October 18, 2005, the trial court denied Angela's amended motion
for new trial.  No transcript of the hearing on the amended motion for new trial appears in
the record despite a hearing date, time, and place provided in the notice of hearing attached
to the amended motion for new trial.  On that same date, the trial court also approved
Angela's motion for substitution of counsel.  No transcript of this hearing appears in the
record.  
	Angela now brings this appeal complaining of two issues.  First, Angela asserts the
trial court erred in instructing the jury that it could consider violations of the family service
plan, Section 161.001(1)(O) of the Texas Family Code, as grounds for terminating her
parental rights.  Second, Angela asserts that due to the ineffectiveness of her attorney, she
failed to preserve error.  
II. CONSTITUTIONAL CHALLENGE
	Angela complains that section 161.001(1)(O) of the Texas Family Code is
unconstitutional and its inclusion as a ground for termination caused her harm.  Moreover,
she asserts that she is prevented from demonstrating the harm because the jury charge
included her failure to comply with the terms of the service plan as one of several other
potential grounds upon which the jury could terminate her parental rights. 
	We give careful consideration when reviewing cases involving the termination of the
parent-child relationship due to the fundamental constitutional rights involved.  The Texas
Supreme Court describes the relationship between a parent and child as a constitutionally
protected natural right "far more precious than property rights."  Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985).   Thus, we strictly construe involuntary termination statutes in favor of
the parent.  See id.  Nevertheless, the constitutional dimension of the parent-child relationship 
does not override all procedural restrictions.  See In re B.L.D., 113 S.W.3d 340, 354 (Tex.
2003). 
	Generally, a party must make an objection to a proposed jury charge at trial to avoid
waiving complaints about the charge.  Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a)(1). 
Absent a recognized exception, even a constitutional complaint is waived if not properly
preserved in the trial court.  See B.L.D., 113 S.W.3d at 350; see also In re A.F., 113 S.W.3d
363, 364 (Tex. 2003).   Angela did not object to the jury charge at trial but now complains
of the constitutionality of section 161.001(1)(O) of the Texas Family Code as a ground for 
termination.  To avoid waiver, Angela asserts that this provision of the statute is facially
unconstitutional, and in the alternative, that we should review the constitutionality of this
provision under the Fourteenth Amendment for procedural due process or under the
fundamental-error doctrine.  We review the facial challenge and other procedural
preservation rules separately below. 
 A.	Facial Challenge
	As stated above, as a general rule, we will not review unpreserved error; even one
containing constitutional challenges.  See B.L.D., 113 S.W.3d at 350.  Even if a facial
challenge is an exception to the general rule regarding error preservation, a matter that is
currently arguable, Angela's argument that the statute is facially invalid is not persuasive. 
See In re Commitment of Fisher, 164 S.W.3d 637, 654 (Tex. 2005).  However, when
addressing whether a statute is facially unconstitutional, it is important to note, that "[a]
facial challenge to a statute is the most difficult challenge to mount successfully because the
challenger must establish that no set of circumstances exists under which the statute will be
valid."  Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (citing United States
v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); see also Wilson v.
Andrews, 10 S.W.3d 663, 670 (Tex. 1999).  Thus, a challenger must establish that the statute
always operates unconstitutionally.  That a statute could be unconstitutional "'under some
conceivable set of circumstances is insufficient to render it wholly invalid, since we have not
recognized an 'overbreadth' doctrine outside the limited context of the First Amendment.'" 
B.S.W., 87 S.W.3d at 771 (quoting Salerno, 481 U.S. at 745).
	A court presumes a statute's validity when examining its constitutionality.  See Walker
v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); General Services Comm'n v. Little-Tex
Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001).  The party challenging the statue has
the burden to establish the statute is unconstitutional.  See Walker, 111 S.W.3d at 66; Little-Tex, 39 S.W.3d at 598.  When possible, we are to uphold the statute and "interpret legislative
enactments in a manner to avoid constitutional infirmities."  Barshop v. Medina County
Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); see also Little-Tex, 39 S.W.3d at 598.  
	Angela fails to demonstrate that under no set of circumstances could this section of
the Texas Family Code be valid.  Her assertion that the Department is granted a "legislative"
power because it can establish impossible tasks that she must complete before the return of
her children is unfounded.  If reasonable standards to guide the agency are in place, the
legislature's delegation of power to various agencies to enforce and apply law is both
necessary and proper.  See Texas Workers' Comp. Comm'n v. Patient Advocates of Texas,
136 S.W.3d 643, 654 (Tex. 2004); Texas Boll Weevil Eradication Found., Inc., v. Lewellen,
952 S.W.2d 454, 466 (Tex. 1997).  The Texas Family Code requires review of the
Department's service plans by the court in a status hearing within time periods prescribed in
the statute.  Tex. Fam. Code Ann. § 263.201(a) (Vernon Supp. 2005).  In its review, the
court shall review the plan for "reasonableness, accuracy, and compliance."  Tex. Fam. Code
Ann. § 263.202(b) (Vernon Supp. 2005).  
	Thus, Angela's suggestion that the Department "could require the offending parent
to complete impossible tasks" is insufficient to demonstrate that the statute always operates
unconstitutionally.  See B.S.W., 87 S.W.3d at 771.  Therefore, we reject Angela's argument
that section 161.001(1)(O) of the Texas Family Code is facially unconstitutional. 
 B.	Exceptions to Procedural Preservation Rules
 Despite her failure to object to the charge, Angela requests that we review the
constitutionality of the trial court's inclusion of her violation of the Family Service Plan as
a ground for termination of her parental rights.  Generally, a reviewing court only determines
constitutional questions when the court cannot resolve the issues on nonconstitutional
grounds.  See B.L.D., 113 S.W.3d at 349.  
	The Texas Supreme Court, when faced with a similar issue concerning whether to
review a jury charge in a parental-rights termination case despite the presence of error
preservation problems, held that error must be preserved to save a complaint based on an
allegation that a statute is unconstitutional.  See id.  Refusing to extend the fundamental-error
doctrine to areas of family law, the Texas Supreme Court in B.L.D. ruled that the
"fundamental-error doctrine does not permit appellate review of the complaint of
unpreserved charge error" in parental-rights termination cases.  See id. at 351.  Accordingly,
the fundamental-error exception does not operate to preserve Angela's complaint regarding
the trial court's alleged charge error.
	Angela also claims that due process requires our review of her unpreserved error
concerning the jury charge.  However, as a general rule, "due process does not mandate that
appellate courts review unpreserved complaints of charge error in parental rights termination
cases."  Id. at 354.  This conclusion is based on the factors set forth in Mathews v. Eldridge. (1) 
The Texas Supreme Court concluded that the Eldridge factors "do not rebut the presumption
that our preservation rules comport with due process" and thus, do not require review of an
unpreserved charge error.  B.L.D.,113 S.W.3d at 354.  We hold that due process does not
require that we review Angela's complaint regarding the jury charge when Angela's attorney
made no objection to the charge at the trial.  Accordingly, we overrule Angela's first issue.
III.  INEFFECTIVE ASSISTANCE OF COUNSEL
	A.	Applicable Law
	Angela contends that because her attorney did not object to the jury charge, she was
denied effective assistance of counsel. The Texas Supreme Court cautioned that under certain
circumstances in a parental-rights termination case, "a different calibration of the Eldridge
factors" could require review of a complaint not properly preserved to ensure compliance
with due process.  B.L.D., 113 S.W.3d at 354 (following  Lassiter v. Department of Social
Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).  Specifically, the Court stated
that if appointed counsel unjustifiably failed to preserve error, given certain circumstances,
that failure could amount to a due process violation.  See B.L.D., 113 S.W.3d at 354 (citing
M.S., 115 S.W.3d at 534).  
	Despite Angela's counsel's not preserving the charge error at trial, we address the
issue of whether counsel's failure to object to the ground's inclusion in the charge amounted
to the ineffective assistance of counsel.  We find that counsel's failure to object to the jury
charge did not constitute ineffective assistance of counsel for the reasons explained below.
	The Texas Supreme Court has held that the statutory right to counsel in parental-rights
termination cases includes the right to effective counsel.  In re M.S., 115 S.W.3d 534, 544
(Tex. 2003); see also Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2005).  In
evaluating the effectiveness of counsel in parental-rights termination cases, the Texas
Supreme Court adopted the Strickland test that sets standards for effective assistance in
criminal cases.  See M.S., 115 S.W.3d at 545 (citing Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
	Under Strickland, to prevail on a claim of ineffective assistance of counsel, an
appellant must show that trial counsel's performance fell below an objective standard of
reasonableness, and that a reasonable probability exists that, but for trial counsel's errors, the
result would have been different.  See Strickland, 466 U.S. at 687-88.  Under Strickland, the
appellant must successfully show both prongs of the inquiry to establish an ineffective
assistance of counsel claim.  See M.S., 115 S.W.3d at 545.
	To decide whether Angela's trial attorney's performance was deficient, "we must take
into account all of the circumstances surrounding the case, and must primarily focus on
whether counsel performed in a 'reasonably effective' manner."  Id. (quoting Strickland, 466
U.S. at 687).  In doing so, we must indulge in the strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.  See M.S., 115 S.W.3d at
545; see also Strickland, 466 U.S. at 689.  Challenged conduct constitutes ineffective
assistance only when the conduct is so outrageous that no competent attorney would have
engaged in it.  See M.S., 115 S.W.3d at 545; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.
App. 2001); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 
	To satisfy the second prong of the Strickland standard, we must determine whether
counsel's allegedly defective assistance caused harm.  See M.S., 115 S.W.3d at 549-50.  The
test to apply is whether "'there is a reasonable probability that, but for counsel's
unprofessional error(s), the result of the proceeding would have been different.'"  Id.
(quoting Garcia, 57 S.W.3d at 440).  
 B.	Analysis
	Angela fails to satisfy the first Strickland prong; she does not show that her trial
attorney's performance was deficient.  Specifically, no Texas court has held section
161.001(1)(O) of the Texas Family Code to be unconstitutional.  Angela bears the burden of
proving the statute is unconstitutional as applied to her.  See Walker, 111 S.W.3d at 66 (The
challenging party has the burden of demonstrating a statute's unconstitutionality.).  Angela
does not mention which requirement, if any, as set forth in her service plan, is unreasonable
or impossible for her to satisfy.  Some examples of the requirements in Angela's service plan
include her agreement to:  submit to a drug assessment and random urinalysis, actively
participate in, and successfully complete parental classes, and maintain a safe home
environment that is free of environmental hazards.  These requirements, and the others in the
plan, are not unreasonable or impossible.  Moreover, Angela had opportunities to object to
the terms of the plan, but did not, and the trial court reviewed the service plan as required by
statute and found it reasonable.  See Tex. Fam. Code Ann. § 263.201(a).    
	Angela provides absolutely no evidence that the service plan is unconstitutional as
applied to her.  Other than generally complaining that judges could create service plans with
impossible requirements, Angela does not point us to any specific provision of her service
plan with which she could not have complied. The evidence at the trial demonstrated that
Angela violated some of the service plan's terms.  We find that it is not ineffective assistance
for an attorney to fail or refuse to make objections to a charge that have no arguable basis. 
On appeal, Angela fails to establish that she received ineffective assistance of counsel.  As
such, we need not address harm under the second prong of the Stickland test.  See M.S., 115
S.W.3d at 545.   We overrule Angela's complaint regarding ineffective assistance of counsel
and therefore, affirm the judgment of the trial court.
	AFFIRMED.

								____________________________
									HOLLIS HORTON
										Justice


Submitted on June 8, 2006
Opinion Delivered August 24, 2006
Before McKeithen, C.J., Gaultney and Horton, JJ.
1. In Eldridge, the United States Supreme Court considered the following factors in
determining constitutional due process: (1) the private interest affected by the proceeding or
official action; (2) the countervailing governmental interest supporting use of the challenged
proceeding; and (3) the risk of an erroneous deprivation of that interest due to the procedures
used.  Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). 
