




02-11-362-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00362-CV
 
 



In the Interest of A.B. and K.M.B., the Children


 


 



 
 
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FROM THE 431st
District Court OF Denton COUNTY
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OPINION
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I.  Introduction
          Appellant
D.B. (Father) appeals the trial court’s order terminating his parental rights
to his children, A.B. and K.M.B.  In two issues, Father argues that the trial
court violated his due process rights by erroneously instructing him about his
Fifth Amendment privilege against self-incrimination and that his trial counsel
was ineffective.  We will affirm.
II.  Background
          The
Department of Family and Protective Services (DFPS) conducted an investigation
after receiving a referral in February 2010 regarding the children.  Concerned
about allegations of domestic violence, a previous conviction by Father
involving child abuse, and K.B.’s (Mother) mental health, DFPS filed its
petition for protection, for conservatorship, and for termination in suit
affecting the parent-child relationship.  The trial court subsequently appointed
DFPS temporary managing conservator, placed the children with their maternal
grandmother, and ordered both Father and Mother to perform a service plan.
          During
a scheduled visit with the children at a CPS office, a DFPS employee observed
that Father had an erection while bouncing then ten-month-old K.M.B. on his
lap.  Shortly thereafter, during another scheduled visit with the children, a
DFPS employee reported that she thought Father had inappropriately touched then
eight-year-old A.B. on her chest.  A.B. confirmed the employee’s concern when A.B.
told prosecutors investigating the allegations that Father had touched her
chest.  At the time of the termination trial, Father was incarcerated pending
trial for the offense of indecency with a child by contact.
          Pleased
with Mother’s performance of her service plan, the trial court ordered a
monitored return of the children to Mother and later severed DFPS’s suit
against Mother from the action against Father.  At the termination bench trial,
in the course of discussing DFPS’s plan to call Father as a witness, the trial
court explained the following to Father regarding his Fifth Amendment privilege
against self-incrimination:
          I did
research further that issue since our last discussion and am left with the firm
conviction that the current state of the law is that while there is no Fifth
Amendment privilege to refuse to answer all written discovery questions that
may be propounded in a civil case and those Fifth Amendment assertions must be
made on a question-by-question basis, that the same principle does not apply to
testimony at the time of trial; that is, it’s an all-or-nothing
proposition.  You either testify and answer all questions or you invoke your
Fifth Amendment privilege and answer no questions.  [Emphasis added.]
Father
informed the trial court the next day that he did not want to testify, and the
trial court did not require Father to take the stand.  The trial court terminated
Father’s parental rights to the children, finding by clear and convincing
evidence (1) that Father had knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered their physical
or emotional well-being; (2) that Father had engaged in conduct, or
knowingly placed the children with persons who engaged in conduct, that
endangered the children’s physical or emotional well-being; (3) that
Father had failed to comply with the provisions of a court order that
specifically established the actions necessary for Father to obtain the return
of the children; and (4) that termination of Father’s parental rights to
the children was in the children’s best interests.
III.  Fifth Amendment
          In
his first issue, Father argues that the trial court erred and violated his due
process rights by instructing him that he “either testify and answer all
questions or you invoke your Fifth Amendment privilege and answer no
questions.”  DFPS responds that the trial court’s instruction was incorrect but
that Father failed to preserve error.
          A
party may invoke his Fifth Amendment privilege against self-incrimination in a
civil proceeding if he reasonably fears that the answer sought might
incriminate him.  United States v. Balsys, 524 U.S. 666, 671–72, 118 S. Ct.
2218, 2222 (1998); In re Speer, 965 S.W.2d 41, 45 (Tex. App.—Fort
Worth 1998, orig. proceeding).  However, unlike in criminal proceedings, blanket
assertions of the privilege are impermissible—the privilege must be asserted on
a question-by-question basis.  Murray v. Tex. Dep’t of Family &
Protective Servs., 294 S.W.3d 360, 366 (Tex. App.—Austin 2009, no pet.); Speer,
965 S.W.2d at 46; see Cuba v. State, 905 S.W.2d 729, 733 (Tex.
App.—Texarkana 1995, no pet.) (explaining that accused in criminal proceeding who
testifies waives right against self-incrimination and may be cross-examined on whole
case).  A termination proceeding is a civil proceeding for purposes of the
privilege against self-incrimination.  Murray, 294 S.W.3d at 367.
          Here,
the trial court should have required Father to take the stand and assert his
Fifth Amendment privilege on a question-by-question basis.  However, Father never
objected to or otherwise contested the trial court’s inaccurate instruction. 
Consequently, Father failed to preserve this issue for appellate review.  See
Tex. R. App. P. 33.1(a)(1), (2); Bushell v. Dean, 803 S.W.2d 711, 712
(Tex. 1991) (op. on reh’g).  We overrule Father’s first issue.
IV.  Ineffective Assistance
          In
his second issue, Father argues that his trial counsel was ineffective for
failing to object to the trial court’s inaccurate Fifth Amendment instruction.
          To
establish ineffective assistance of counsel, the appellant must show by a
preponderance of the evidence that his 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); Davis v. State, 278 S.W.3d 346, 352 (Tex.
Crim. App. 2009).  Parents are entitled to effective counsel at a termination
proceeding.  In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003).
          Father’s
argument fails under the second Strickland prong because he has not
shown that there is a reasonable probability that the trial court would not
have terminated his parental rights to the children had he testified.[1] 
Father filed a motion for new trial, but he did not raise ineffective
assistance, and there is no record of a hearing at which he detailed what his
testimony would have consisted of had he testified, nor is there any other
source in the record from which we can glean what Father would have testified
about.  Also, Father does not challenge the trial court’s conclusions of law
that he knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered their physical or emotional
well-being; that he engaged in conduct, or knowingly placed the children with
persons who engaged in conduct, that endangered the children’s physical or
emotional well-being; or that he failed to comply with the provisions of a
court order that specifically established the actions necessary to obtain the return
of the children.  Without any idea of Father’s testimony, and in light of the
unchallenged conclusions of law supporting the trial court’s order, we are
unable to conclude that there is a reasonable probability that the result of
the termination proceeding would have been different had Father testified.  Accordingly,
we overrule Father’s second issue.
V.  Conclusion
          Having
overruled both of Father’s issues, we affirm the trial court’s order
terminating Father’s parental rights to A.B. and K.M.B.
 
 
BILL MEIER
JUSTICE
 
PANEL:  DAUPHINOT, GARDNER, and MEIER, JJ.
 
DELIVERED: 
June 21, 2012




[1]There is no requirement
that we approach the two-pronged inquiry of Strickland in any particular
order, or even that we address both components of the inquiry if the defendant
makes an insufficient showing on one component.  Strickland, 466 U.S. at
697, 104 S. Ct. at 2069.


