

Opinion issued July 29,
2010
 
 
 
 
 

 
In The
Court of Appeals
For The
First District of Texas
 

 
NO. 01-08-00345-CV
____________
 
IN THE INTEREST OF V.V., A MINOR CHILD
 
 

 
On Appeal from the
313th District Court
Harris County,
Texas
Trial Court Cause No. 2006-10410J
 

 
DISSENTING OPINION
Judges should decide the cases that come before them based upon the facts
in evidence and the governing law, not upon their moral preferences, desires,
or the dictates of their emotions.  The
“obvious problem” with “results-oriented judging” is that “it produces bad
results because it guts the rule of law.”[1]
 It subjects litigants not to the Rule of
Law, which can be discerned, understood, and applied, but to judicial whim,
which is known only to the judges involved. 
Accordingly, judges should impartially and dispassionately decide the
cases that come before them, and, “[i]nstead of worrying about the result in
particular cases, judges should follow the rule of law in thousands of cases
because doing so leads to better results than not doing so.”[2]  In contrast, “result–oriented judging . . .
produces bad consequences on a system-wide basis.”[3]
  
This Court and the other intermediate appellate courts like it exist to ensure
due process of law, the most fundamental and ancient right established in
Anglo-American jurisprudence and first articulated in Magna Carta.[4]
In doing so, we are to correct the harmful errors of trial courts, including
erroneous fact findings.  These are
solemn duties.  When appellate judges fail
in fulfilling them, the whole justice system fails.   
In this case, the assigned panel, exercising judicial restraint,[5]
impartially and dispassionately decided the issues presented to this Court
based upon the actual facts in evidence and the governing law.  The majority, taking upon itself the roles of
advocate and policy maker, has now, in suggesting relief neither requested nor
argued for by either party, conditionally affirmed the trial court’s judgment.
Through its en banc opinion, the majority makes new law, changing the rules
after the panel unanimously made its decision under the governing law.  The stunning effect of the majority’s opinion is
that it will shut down all claims for the constructive denial of the right to
counsel in termination of parental rights cases, regardless of how egregious
the inaction of trial counsel.  
In overruling the unanimous panel opinion in this case, the majority does
not dispassionately state the pertinent background facts.  In fact, it, in large part, considers as fact
mere allegations, made for the first time on appeal in briefing and in motions,
which are not in the appellate record and are in no way supported by the actual
five and one-half page, double spaced, trial transcript, which is set out in
its entirety below.  Moreover, the
majority not only misinterprets the well-established governing law, it,
inconsistent with that law, creates out of whole cloth, a conditional
affirmance—an unnecessary appellate abatement procedure for parents claiming
ineffective assistance of trial counsel in termination of parental rights cases
to prove up in a trial court what they have already established as a matter of
law in an intermediate appellate court. 
In reaching for what it considers to be a better result than that
compelled by the governing law, the majority sacrifices the fundamental duties
that attorneys owe to their clients along with the strict standard of proof
necessary to terminate parental rights adopted by the Texas Legislature.  The majority has indeed produced a bad
consequence on a system-wide basis. Thus, this case reveals a fundamental
breakdown in the judicial process in Texas. 
The majority fails to realize what most Americans, based upon a common experience,
have come to understand all too well—government agencies, like all organizations,
are capable of “encourag[ing] methods of decision making that make failure even
more likely and then inevitable.”[6]    If allowed
to stand, the majority’s en banc opinion will not only encourage trial courts to
(1) constructively deny parents their statutory right to counsel in parental-rights
termination cases and (2) terminate parental rights on less than clear and
convincing evidence in summary proceedings, it will make the practices
“inevitable.”  
Accordingly, I dissent.
The Issues Presented 
Appellant, Joe Lewis Valencia, challenges the trial court’s termination
of his parental rights to his minor child. 
In three issues, Valencia contends that his court-appointed attorney’s
performance at trial “was so patently deficient that [he] was denied any
meaningful assistance of counsel altogether” and the evidence presented against
him at trial, as revealed in the five and one-half page trial transcript, is
legally and factually insufficient to support the trial court’s findings that
he had “endangered”[7] the child and
that termination of his parental rights is in the child’s best interest. 
In regard to his first issue, the panel in our original opinion,[8]
viewing the entire record before us, stated that “we are compelled to hold that
Valencia received no meaningful assistance of counsel and was denied an advocate
for his cause.”  We noted that his “trial
counsel idly sat by, doing nothing to ensure Valencia a fair hearing, and he
essentially allowed DFPS to terminate Valencia’s parental rights without having
to prove its case.”   
In regard to his second issue, the panel noted that the only evidence
offered by DFPS on the issue of “endangerment” consisted of copies, mostly
uncertified, of criminal records purportedly showing that Valencia, (1) prior
to the child’s birth, had been convicted of several misdemeanor and state jail
felony offenses; (2) at the time of the child’s birth, was in jail pending
trial for the offense of aggravated robbery, a case which was later dismissed;
and (3) after the child’s birth, stood accused by information of the
misdemeanor offense of assaulting Sandra Flores, the child’s biological mother,
who had already agreed to relinquish her parental rights.  We also noted that the record conclusively
establishes that Valencia had never had possession of the child.  Accordingly, we held that the evidence is
legally insufficient to support the trial court’s finding that Valencia, based
on his prior history of incarceration for criminal offenses, actually
endangered the child.  
The unanimous panel reversed that portion of the decree terminating the
parent-child relationship between Valencia and the child and rendered judgment
that Valencia’s parental rights were not terminated.[9]
The Evidence
Facts are stubborn things, and the few facts presented in the paltry
record of this case are indeed unyielding.  
The clerk’s record contains the November 10, 2006 affidavit of DFPS agent
C. Heiskill, who testified that DFPS “received a referral alleging the physical
abuse” of the child, who was born to Sandra Lynn Flores on November 7, 2006.  Both the mother and the child tested positive
for opiates, and Flores told Heiskill that Valencia is the father of the child
and he was “in jail for robbery.”  After
removing the child from Flores’s custody, Heiskill located Valencia in the
Harris County Jail, but she could not interview him because he was in
quarantine.  The State subsequently
dismissed the robbery case.
The five and one-half page, double spaced, reporter’s record reads more
like a proceeding in Star Chamber than a real adversary trial in a Texas
courtroom.  The transcript of the April 9,
2008 nonjury trial, which under a conservative estimate could not have lasted
more than a few minutes, reads, in its entirety, as follows:
[Trial Court]:            2006-10410J; In the Interest of [the
child]. The Court will take judicial notice of the contents of [its] file.  Proceed. Okay. 
[Trial Counsel]:         Judge, if I may, on behalf of the
father, the father was released, we sent him notice to be here today to
come.  To bring to your attention, he is
out of Harris County and in county jail. 
We’re asking for a couple of weeks. 
[Trial Court]:            Denied. 
[DFPS Counsel]:       Call my first witness. 
[DFPS Counsel]:       State your name for the Court. 
[Washington]:           Felicia Washington. 
[DFPS Counsel]:      How are you employed? 
[Washington]:           Caseworker for DFPS. 
[DFPS Counsel]:      As such, are you assigned to the Valencia
case? 
[Washington]:           Yes, I am. 
[DFPS Counsel]:      Tell the Court what the goal is in the
case? 
[Washington]:           The goal is unrelated adoption. 
[DFPS
Counsel]:      Adoption. Okay. Could you
please tell the Court how the child came into care? 
[Washington]:           Back in 2007 --yeah. 
[Trial Court]:            I will take judicial notice of the
contents of its file, that includes the affidavit that describes the reason the
child was taken into care. 
You may proceed.

[DFPS Counsel]:      Where is she currently placed? 
[Washington]:           Placed in a kinship placement. 
[DFPS Counsel]:      Is the placement meeting all of the physical
and emotional needs? 
[Washington]:           Yes. 
[DFPS Counsel]:      Let’s talk about Joe Valencia. Originally,
the named father; is that correct? 
[Washington]:           Yes. 
[DFPS Counsel]:      Mr. Valencia was in jail when this case
first started? 
[Washington]:           Yes. 
[DFPS Counsel]:      And personally served in November, 2006? 
[Washington]:           Yes, he was. 
[DFPS Counsel]:      When was the first time you had contact
with him? 
[Washington]:           The last hearing that we had. 
[DFPS Counsel]:      Which was in January of -­
[Washington]:           2008. 
[DFPS Counsel]:       At the last hearing, Mr. Valencia showed
up and offered to take a paternity test? 
[Washington]:           Yes, he did. 
[DFPS Counsel]:      Do you know the result of the paternity
test? 
[Washington]:           Yes. The result was, he is the father
of the child. 
[DFPS Counsel]:      He knows he is the father, and since then
has he made any contact with the Agency? 
[Washington]:           No, he has not. 
[DFPS Counsel]:      And has he made any attempts to check on
the welfare of the child? 
[Washington]:           No, he has hot. 
[DFPS Counsel]:      And to your knowledge, Mr. Valencia was
living with the mother of the child, correct? 
And this is the mother that tested positive for cocaine at the time of
the birth of the child? 
[Washington]:           Yes. 
[DFPS Counsel]:      And to your knowledge, does Mr. Valencia
have a criminal record? 
[Washington]:           Yes, he has. 
[DFPS Counsel]:      And, your Honor, I’m asking for State’s
Exhibit No.1, Mr. Valencia’s criminal record to be admitted. 
(Petitioner’s Exhibit No.1 offered)
[Child’s Ad
Litem]:   No objections. 
[Trial Court]:            It’s admitted. 
(Petitioner’s Exhibit No.1 admitted)
[DFPS Counsel]:       749311; burglary of a motor vehicle; DWI;
evading arrest; theft; assault; theft; DWI; more unauthorized use of a motor
vehicle; and prosecuted as a third defendant for theft and aggravated robbery,
which was dismissed due you to a lack school [sic] of witnesses; and also as
recent --in jail right now for assault of Sandra Flores the mother, and we
would like to mark that. 
(Petitioner’s Exhibit No.1 offered)
[Trial Court]:            Any other exhibit or is that it? 
[DFPS Counsel]:       That is it right here. These are photos
of his assault. 
[Trial Counsel]:         Judge, object, goes to the criminal
side. 
[Trial Court]:            Overruled. 
[Child’s Ad
Litem]:   No objections. 
[Trial Court]:            They are admitted. [[10]]

(Petitioner’s Exhibit No.1 admitted)[[11]]
[Washington]:           That’s the mother of the child. 
[DFPS Counsel]:      Has Mr. Joe Valencia been able to show he
has any relatives that could care for the child? 
[Washington]:           No, he does not. 
[DFPS Counsel]:      Based on the Court of contact that he has
been in and out of jail every year for the --at least 10 years, and if he went
to jail and the child was placed with him, how would that affect the emotional
stability of the child? 
[Trial Counsel]:
       Objection, speculation. 
[DFPS Counsel]:      So, he has no -­
[Washington]:           Go ahead.  That’s okay. 
[DFPS Counsel]:      Has the child been able to bond with Joe? 
[Washington]:           With Joe? 
[DFPS Counsel]:      With Joe Valencia? 
[Washington]:           No. 
[DFPS Counsel]:      How long has the child been placed with its
current caregivers? 
[Washington]:           14 months. 
[DFPS Counsel]:      14 months. And has the child and family
bonded? 
[Washington]:           Yes, very much. 
[DFPS Counsel]:      Would it be in the best interest of the
child for the child to stay with the family? 
[Washington]:           Yes. 
[DFPS Counsel]:      And why? 
[Washington]:           They’ve had the child since she was
four months old, and the child’s in a very stable environment, and the child is
bonded to the family. 
[DFPS Counsel]:      And since Joe has an extensive criminal
history, including domestic violence, it would not be in the best interest to
return the child to him? 
[Washington]:           No, to return the child. 
[DFPS Counsel]:      Based on over 10 years of repeated criminal
history including assault of the mother, are you asking that Joe Valencia’s
rights be terminated and he has engaged in conduct that endangers the physical
and emotional well-being of the child? 
[Washington]:          Yes.  
[DFPS Counsel]:      No
further questions.  
[Trial
Court]:           Cross.  
[Trial Counsel]:         No questions, Judge.  
[Child’s Ad
Litem]:   No questions, your Honor.  
[Trial
Court]:            Petition is
granted.  TDFPS is appointed PMC.  Entry of Judgment, today.  Review hearing next 10-20-08.  Good luck.
Given this brief record, one can easily compare the actual facts
established at trial with what the majority, based on the representations of
DFPS, asserts as fact in its opinion. 
Such a comparison reveals that several of the assertions are either not
supported by the record or are objectively false:




Majority Assertions:


What the Record reveals:





“The record . . . reveals .
  . . [Valencia’s] wholesale lack of
  parenting beyond the moment of conception . . .”
 
“A lack of all contact with a child without any
  proffered excuse and no effort to
  insure her safety . . .”
 
“. . . no effort to care for his daughter . . . .”
 
“. . . the father has not
  inquired about or supported the child or made any effort to see to her needs.”
 
“The father has never seen
  the child, paid support, or made any arrangements to provide her with food,
  clothing, shelter or care.”


As
  revealed above, DFPS did not even explore this subject matter in the trial
  court.
 
It
  relied exclusively upon Valencia’s
“extensive
  criminal history” as its proof that he had endangered the child. 
 
As
  revealed above, DFPS merely asked Washington if Valencia, after he had
  offered to take a paternity test, which revealed that he is the father’s
  child, had “made any contact with the
  Agency” or “made made any attempts to
  check on the welfare of the child?” 
  She merely answered that he had not done either of those two things.




“The father offered no excuse for his behavior at trial.”
 


Because Valencia’s trial counsel did not know how to get him to
  court, Valencia could not appear at trial to defend himself.




“[He] assaulted the child’s mother.”
  
“The record . . . reveals the
  father’s assault on the child’s mother . . . .”
 
 


At the time the trial court entered its decree, Valencia had
  been accused by information of the misdemeanor assault of the child’s mother,
  who had already agreed to relinquish her parental rights.  
 
DFPS did not produce any testimony to prove that Valencia had
  committed the offense of assault. 




“The record . . . reveals .
  . . a child left in the care of the state at birth because the father was in jail and the mother had ingested opiates
  during the pregnancy.”


In her affidavit, in regard to “Facts Necessitating Removal of
  the Child,” Heiskill testified that “[DFPS] received a referral alleging the physical abuse of [the child] . . .
  [who had] tested positive for
  Opiates . . . .”
 
Nothing in Heiskill’s affidavit testimony in any way implicates
  Valencia or his conduct regarding the child. 
  Heiskill merely noted that “[Valencia] is in jail for robbery.”  




“. . . four of this father’s eight convictions are for felonies.”


Valencia’s criminal history consists of misdemeanors and state
  jail felony convictions for which he, prior to the child’s birth, had served
  time in either a county or state jail facility.




“The father has not
  attempted to seek . . . reunification with [the child].”


Valencia has never relinquished his parental rights, and he has maintained
  this appeal for over two years.



As once emphasized
by John Adams, “whatever may be our wishes, our inclinations, or the dictums of
our passions, they cannot alter the state of facts and evidence.”[12]
Procedural Background
In its November 10, 2006 Original Petition for Protection of a Child, for
Conservatorship, and for Termination in a Suit Affecting the Parent-Child
Relationship, DFPS alleged that “Rene Flores” was the child’s “father,” Valencia
was the child’s “alleged father,” and an “unknown” man was the child’s alleged
father.  DFPS sought a determination of
Valencia’s parentage, and, if “reunification with [Valencia could] not be
achieved,” the termination of the parent-child relationship, if any existed,
between Valencia and the child.  On
November 16, 2006, Valencia was served with citation in the Harris County Jail,
but he did not appear at the adversary hearing later that same day because he
was in jail on a charge that was later dismissed.
The trial court, on May 8, 2007, appointed an attorney ad litem for the
“unknown father” of the child.  On
September 6, 2007, Sandra Flores signed an affidavit of voluntary
relinquishment of her parental rights with respect to the child.  That same day, Valencia’s court-appointed
attorney (hereinafter “trial counsel”), with the help of counsel for DFPS, filed
a written “Unopposed Motion For Continuance” to bench warrant Valencia to the
trial court.[13]  On January 3, 2008, trial counsel filed an
answer on behalf of Valencia, and Valencia, who appeared in court for the first
time, “offered” to take a paternity test, which later established that he is in
fact the father of the child.
Three months later, the trial court granted DFPS’s petition and entered
its Decree For Termination solely on the ground that Valencia had “engaged in
conduct or knowingly placed the child with persons who engaged in conduct which
endangers pursuant to § 161.001(1)(E) of the Texas Family Code.”[14]

On April 24, 2008, Valencia’s trial counsel filed a Motion for New Trial
and Statement of Appellate Points, a Request for Findings of Fact and
Conclusions of Law, and a Notice of Appeal. 
The record does not contain findings of fact and conclusions of law, nor
does it show that trial counsel ever filed a notice of past due findings of
fact and conclusions of law.[15]  In his new trial motion, trial counsel
contended that his “oral motion for continuance to allow [Valencia] to be
brought over from the Harris County Jail should have been granted” as Valencia
was “within walking distance of the courtroom”; the trial “court could have
ordered all parties to mediation to narrow the issues for trial”; a new trial
would “not unduly burden” the trial court; a new trial was in the best interest
of the child; and justice would not “properly be served” without a new trial.
In his Statement of Appellate Points, Valencia’s trial counsel contended
that the trial court had erred in denying Valencia access to the court because,
as “an inmate at the Harris County Jail,” he was “available upon request of the
court”; the evidence is legally and factually insufficient to support the trial
court’s finding that termination of Valencia’s parental rights was in the best
interest of the child; the trial of the case, in the absence of Valencia,
“deprived him of his due process pursuant to the 5th and 14th Amendments to the
U. S. Constitution, and Article 1, Sections 13 and 19 of the Texas
Constitution” and “his right to equal protection of the laws pursuant to the
5th and 14th Amendments to the U. S. Constitution, and Article 1, Sections 3,
3a, 13, and 19 of the Texas Constitution”; and his appellate points were not frivolous
because termination of Valencia’s parental rights affected his
“constitutionally protected fundamental right to parent.”  
The trial court, after a hearing held on May 6, 2008, denied Valencia’s
new trial motion, appointed Valencia’s trial counsel to represent him on appeal,
and found Valencia’s appeal “frivolous.” 
Valencia’s trial counsel subsequently filed in this Court his appellant’s
brief, in which he argued, in a single issue, that the trial court erred in
“determining [Valencia’s] appeal to be frivolous” because Valencia’s
“fundamental right to parent is constitutionally protected.”  Because the record was incomplete, this Court
ordered the court reporter to prepare a record of the May 6, 2008 hearing.  After the court reporter responded that the
record of the May 6, 2008 hearing could not be located, this Court ordered the
court reporter to supplement the record with all recorded testimony and
evidence admitted at the April 9, 2008 nonjury trial.  Upon receipt of the supplemented record, this
Court afforded Valencia’s trial counsel the opportunity to review it and file
an amended brief.  Inexplicably, he filed
a “Waiver of Opportunity to File a Supplemental Brief.”  
After reviewing the entire clerk’s record and the five and one-half page
trial transcript along with Petitioner’s Exhibit No. 1, this Court concluded
that Valencia’s appeal is not frivolous because Valencia had an arguable basis
for challenging the legal and factual sufficiency of the evidence supporting
the trial court’s finding that he had endangered the child and for challenging
the effectiveness of his appointed counsel.[16]  This Court struck the brief of Valencia’s trial
counsel, abated the appeal, and remanded the case to the trial court for the
appointment of new appellate counsel.  We
ordered Valencia to file full briefing on the pertinent issues and, if
appropriate, an issue challenging the effectiveness of trial counsel’s
assistance.
Constructive Denial of Counsel
In his first issue, Valencia argues that because his trial counsel’s
performance “did not simply consist of errors, omissions or poor trial
strategy” and “was so patently deficient,” Valencia “was denied any meaningful
assistance of counsel altogether” and prejudice to his defense must be
“presumed.”  See Strickland v.
Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984). 
The Texas Supreme Court has held that “an ineffective assistance of
counsel claim can be raised on appeal despite the failure to include it in a
statement of points.”  In re J.O.A.,
283 S.W.3d 336, 339 (Tex. 2009).  Thus,
Valencia may raise this issue for the first time on appeal notwithstanding the
fact that his trial counsel failed to assert it in his statement of appellate
points as required by statute.  Id.;
see Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008) (“The
appellate court may not consider any issue that was not specifically presented
to the trial court in a timely filed statement of points on which the party
intends to appeal or in a statement combined with a motion for new trial.”).
Standard
of Review
The Texas Family Code requires the appointment of counsel to represent an
indigent parent who responds in opposition to a suit filed by a governmental
entity in which termination of the parent-child relationship is requested.[17]
 Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp.
2009).  The Texas Supreme Court has held
that this statutory right to counsel “embodies the right to effective
counsel.”  In re M.S., 115 S.W.3d
534, 544 (Tex. 2003).  In doing so, the
supreme court emphasized that “‘[i]t would seem a useless gesture on the one
hand to recognize the importance of counsel in termination proceedings, as
evidenced by the statutory right to appointed counsel, and, on the other hand,
not require that counsel perform effectively.’” 
Id. (quoting In re K.L., 91 S.W.3d 1, 13 (Tex. App.—Fort
Worth 2002, no pet.)).  Accordingly, the
court concluded that the appropriate standard of review to apply in evaluating claims of ineffective
assistance of counsel in civil parental-rights termination cases is that set
forth by the United States Supreme Court for criminal cases in Strickland v.
Washington.  Id.
In Strickland, the United States Supreme Court, pursuant to the
Sixth Amendment, like the Texas Supreme Court, pursuant to Family Code section
107.013(a)(1), expressly recognized: 
That a person who happens to be a lawyer is present at
trial alongside the accused, however, is not enough to satisfy the
constitutional command.  The Sixth
Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the
adversarial system to produce just results. An accused is entitled to be
assisted by an attorney, whether retained or appointed, who plays the role
necessary to ensure that the trial is fair. 
 
466 U.S. at
685, 104 S. Ct. at 2063 (emphasis added). 
The purpose of the guarantee of counsel in our adversary system of
justice is “to ensure that a defendant has the assistance necessary to
justify reliance on the outcome of the proceeding.”  Id.
at 691–92, 104 S. Ct. at 2067 (emphasis added). 
Thus, to constitute ineffective assistance, any deficiencies in
counsel’s performance must be prejudicial to the defense.  Id.  Such prejudice, depending upon the context,
is either legally presumed or, if not, determined by inquiry.  Id.
at 692, 104 S. Ct. at 2067.
The Supreme Court, in Strickland, expressly explained that
in certain contexts, such “prejudice is presumed” and specifically noted:
Actual or
constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.
 
 
Id. (emphasis added).  In these circumstances, “an inquiry into
prejudice” is simply unnecessary.  Id. 
If the right to counsel in an adversary proceeding has been denied,
actually or constructively, how can a court ever justifiably rely on the
outcome of the proceeding?  As succinctly
stated by John Adams, “no [person] in a free country should be denied the right
to counsel and a fair trial.”[18]
In the infamous sleeping-lawyer case, the United States Court of Appeals
for the Fifth Circuit, sitting en banc, emphasized that there is nothing “new”
about the rule of presumed prejudice and the rule is “well-established.”  Burdine v. Johnson, 262 F.3d 336, 348
(5th Cir. 2001).  As explained by Judge
Patrick Higginbotham:
We presume prejudice because experience tells us that
an occurrence presents both a high probability of prejudice and a difficulty of
“proving it” in any finite sense.  The
law speaks of presumption not to supply a missing ingredient, but rather to
recognize its inevitable presence.  Right to counsel at critical stages is only
an example of this principle.  We simply
will not put a person on trial for his life in the absence of counsel.
 
Id. at 355 (Higginbotham, J. concurring)
(emphasis added).  
In United States v. Cronic, the Supreme Court
expounded upon the principle that prejudice is presumed “if the accused is
denied counsel at a critical stage of his trial [or] . . . if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.”  466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984)
(emphasis added).  The Supreme Court explained:
The [Sixth] Amendment requires
not merely the provision of counsel to the accused, but “Assistance,” which is
to be “for his defence.” . . .  If no
actual “Assistance” “for” the accused’s “defence” is provided, then the
constitutional guarantee has been violated. 
To hold otherwise “could convert the appointment of counsel into a sham
and nothing more than a formal compliance with the Constitution’s requirement
that an accused be given the assistance of counsel.  The Constitution’s guarantee of assistance of
counsel cannot be satisfied by mere formal appointment.”
 
Id. at 654–55,
104 S. Ct. at 2044 (internal citations omitted).  Accordingly, prejudice is presumed in
circumstances that make it “unlikely that the defendant could have received the
effective assistance of counsel.”  See
id. at 666, 104 S. Ct. at 2051. 
Why?  Because the right to counsel
has been denied.  See id. at 654, 104 S. Ct. at 2044.
In cases in which counsel for an accused has not entirely failed to subject the
prosecution’s case to meaningful adversarial testing, but has failed to render
adequate legal assistance, prejudice is not legally presumed, and a prejudice
inquiry must be conducted.  In Strickland, the Supreme Court announced
a two-prong test for evaluating such claims.  466 U.S. at 687, 104 S. Ct. at 2064.  In regard to a criminal defendant’s claim of
“actual ineffective assistance of counsel” based on the errors and omissions of
his attorney, the defendant must show that (1) his attorney’s performance was
deficient and fell below an objective standard of reasonableness and (2) the
deficient performance prejudiced his defense.  Id.
at 684–87, 104 S. Ct. at 2063–64.  Of
course, if counsel entirely fails to subject a case to “meaningful adversarial
testing,” there is no performance to evaluate. 
In regard to the second prong of the test, “[t]he defendant must show
that 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 (emphasis
added); see also Bell v. Cone, 535
U.S. 685, 686, 122 S. Ct. 1843, 1846 (2002). 
The Supreme Court expressly stated that this does not mean that a defendant must “show that counsel’s deficient
conduct more likely than not altered the outcome in the case.”  Strickland
466 U.S. at 693, 104 S. Ct. at 2068. 
Rather, the term “reasonable probability,” as defined by the Supreme
Court, means “a probability sufficient to undermine confidence in the
outcome.”  Id. at 694, 104 S. Ct. at 2068 (emphasis added).   Thus,
The result of a proceeding can
be rendered unreliable, and hence the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evidence to
have determined the outcome.
 
Id. (emphasis added).  The Texas
Supreme Court has recently echoed this standard by stating that the focus for
the prejudice inquiry is whether counsel’s mistakes were “so serious as to deny
the defendant a fair and reliable trial.” In
re B.G., No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (quoting In re J.O.A., 283 S.W.3d at 344 (citing Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064)).  The test for prejudice is
not, as the majority and our concurring colleague assert, that a defendant must
show that, absent counsel’s deficient performance, the outcome of his trial
would have been different.[19]  Contrary to the majority’s claim, Strickland simply does not require
Valencia to show that his trial “counsel’s inadequacy caused the trial court to
make the wrong decision.”
One can never
justify reliance on the outcome of a proceeding in which the right to counsel
has been actually or constructively denied. 
Thus, it makes no sense to further inquire whether there is a reasonable
probability, i.e., one sufficient to undermine confidence, that the outcome of such
a proceeding would have been different.
Presumed Prejudice
In support of his argument that he received no
meaningful assistance of counsel in the trial court and prejudice to his
defense must be legally presumed, Valencia emphasizes the shocking brevity of
the trial transcript of his parental-rights termination trial and that trial
counsel:
1.       failed to bench warrant Valencia to
trial, and failed to put his motion for continuance, based on his need to
secure Valencia’s presence at trial, in writing or to verify it;
 
2.       failed to object when the trial court
took judicial notice of the contents of DFPS’s file;
 
3.       failed to object to the introduction into
evidence of Petitioner’s Exhibit No. 1, which contained numerous
unauthenticated copies of purported criminal records; 
 
4.       made the
invalid objection “goes to the criminal side”;
5.       failed to cross-examine Washington or to
call any witnesses or offer any evidence on Valencia’s behalf; and 
 
6.       failed to include in his statement of
appellate points a challenge to the legal and factual sufficiency of the
evidence supporting the trial court’s finding that Valencia had endangered the
child.
 
Based on these fundamental failures to act as an advocate on his behalf
at each critical stage of the proceeding below, Valencia asserts that his trial
counsel’s representation “was so outrageous that it went beyond incompetent and
can be rightly characterized as inert.”  
The record in this case compels the conclusion
that Valencia received no meaningful assistance of counsel during the critical
pre-trial, trial, and post-trial stages of the parental-rights termination
proceeding.  Although the trial court
below formally appointed a lawyer to represent Valencia, Valencia was
constructively denied his right to counsel. 
The Fifth Circuit has noted that a “constructive
denial of counsel occurs when the defendant is deprived of the guiding hand of
counsel.”  Childress v. Johnson,
103 F.3d 1221, 1228 (5th Cir. 1997) (internal citations omitted).  The court explained that if “the defendant
complain[s] of counsel’s errors, omissions, or strategic blunders in the
context of an active adversarial representation,” then the Strickland
two-prong deficient performance standard applies.  Id. at 1229.  The “critical question in assessing a . . .
right to counsel claim is whether the [defendant] asserts that he received
incompetent counsel, or none at all.”  Id. at 1230 (emphasis added).  If such an argument is made, the rule is that
“a constructive denial of counsel occurs when a criminal defendant must
navigate a critical stage of the proceedings against him without the aid of
‘an attorney dedicated to the protection of his client’s rights under our
adversarial system of justice,’” or when counsel “[abandons] the defense of his
client at a critical stage of the . . . proceedings.”  Id. at 1229 (citing United States v. Swanson, 943 F.2d 1070, 1075 (9th Cir. 1991))
(emphasis added).  
Like the defendant in Childress, Valencia
emphasizes that he received no assistance of counsel, that is, “[i]n effect
Appellant was not represented by counsel at trial.”  See 103 F.3d at 1230.  The defendant in Childress also outlined a list of the failures
of his counsel noting that his counsel (1) never investigated the facts, (2)
never discussed the applicable law with him, and (3) never advised him of the
rights he would surrender by pleading guilty. 
Id. at 1223.  That Valencia
has provided a list of failures does not negate his claim that he received no
assistance of counsel.  See id. 
Rather, the magnitude of the failures makes his point that he was
constructively denied counsel at each critical stage of the proceeding below.  
Moreover, presuming prejudice in this case is in no
way, as the majority suggests, inconsistent with Strickland as adopted
by the Texas Supreme Court in In re M.S. 115 S.W.3d at 544.  Again, the United States Supreme Court, in Strickland,
expressly acknowledged that when an accused has been actually or constructively
denied the assistance of counsel, prejudice to his defense is “legally presumed.”  466 U.S. at 692, 104 S. Ct. at 2067 (emphasis
added).  Not only is the legal
presumption of prejudice in this case consistent with In re M.S., it is consistent with common sense.  The actual or constructive denial of counsel
in and of itself undermines confidence in the outcome of a trial proceeding
because the right to counsel has been denied. 
Only if a defendant has received some meaningful assistance of counsel
is a prejudice inquiry necessary.
In the case before us, Valencia’s trial counsel, in
his new trial motion, affirmatively represented to the trial court that on the
date of trial, Valencia was “within walking distance of the courtroom” and his
“oral motion for continuance to allow [Valencia] to be brought over from the Harris
County Jail should have been granted.” 
Yet, trial counsel’s only effort to secure Valencia’s presence at a
trial, in which his constitutionally protected parental rights were at stake,
was to orally state to the trial court, “To bring to your attention, he is out
of Harris County and in county jail. 
We’re asking for a couple of weeks.”
Although trial counsel, as revealed in his new trial
motion, knew that Valencia was in the Harris County Jail, he did not clearly
articulate this fact to the trial court on the trial date and did nothing to
timely and properly secure Valencia’s presence in court by either obtaining a
bench warrant prior to trial or filing a written and verified motion for
continuance.  See Tex. R. Civ. P. 251.  In fact, it is apparent from the face of the
record that trial counsel did not even know how to secure Valencia’s presence
for trial.  By failing to secure
Valencia’s presence at trial, trial counsel completely deprived Valencia of his
right to testify on his own behalf and to assist trial counsel in presenting a
defense, including the ability to assist trial counsel in cross-examining
Washington, the only witness presented against Valencia.
Moreover, by idly sitting by and doing nothing, Valencia’s
trial counsel essentially relieved DFPS of meeting its burden of proof.  This is revealed in the sparse five and
one-half page, double spaced, trial transcript. 
When the trial court, sua sponte, took judicial notice of the contents
of DFPS’s file, trial counsel failed to object or to do anything to require
that DFPS present properly admissible evidence to establish its allegation that
Valencia had endangered the child.  When
DFPS offered into evidence Petitioner’s Exhibit No. 1, the packet of copies of
purported criminal records, trial counsel, again, failed to object.  The only properly certified copies concern
the aggravated robbery case, which had been dismissed, and the misdemeanor
assault case, which was still pending at the time the trial court entered its
decree.  See Tex. Gov’t Code Ann. § 406.013 (Vernon 2005); Tex. R. Evid. 901(7), 902(4).  When counsel for DFPS stated, without any
authenticating testimony, “These are photos of [Valencia’s] assault,” trial
counsel apparently could not articulate a proper objection, but rather made the
nonsensical objection “goes to the criminal side.”  And when given the opportunity to
cross-examine Washington, the only witness that DFPS presented at trial, trial
counsel responded, “No questions, judge.”
Trial counsel’s post-trial representation was also
essentially inert.  Although he went
through the formality of filing his Request for Findings of Fact and
Conclusions of Law, he failed to timely file a notice of past due findings of
fact after the trial court failed to enter any findings.  See Tex.
R. Civ. P. 297.  In his Motion for
New Trial and Statement of Appellate Points, trial counsel made a number of
inexplicable contentions.  For example,
he contended that the trial court erred in denying his “oral motion for
continuance” and the trial court, apparently sua sponte, “could have ordered
all parties to mediation.”
Although trial counsel contended that the evidence
presented at trial is legally and factually insufficient to support the trial
court’s finding that termination of Valencia’s parental rights is in the
child’s best interest, he failed, after a trial that lasted only a few minutes,
to challenge the legal and factual sufficiency of the evidence to support the
trial court’s findings that Valencia had actually “endangered” the child.  This is truly remarkable given that the
record conclusively shows that Valencia was not determined to be the child’s
father until after he had submitted to paternity testing and he had never had
possession of the child.  It is all the
more remarkable given that the only “evidence” offered by DFPS on the issue of
endangerment consisted of copies, mostly uncertified, of criminal records
purportedly showing that Valencia, (1) prior to the child’s birth, had been
convicted of several misdemeanor and state jail felony offenses; (2) at the
time of the child’s birth, was in jail pending trial for the offense of
aggravated robbery, a case which was later dismissed; and (3) after the child’s
birth, stood accused of the misdemeanor offense of assaulting Flores, who had
already agreed to relinquish her parental rights. 
DFPS, citing Strickland’s two-prong analysis
for analyzing deficient-performance claims, argues that because there is no
evidence in the record to show trial counsel’s strategy or other reasoning
behind his acts and omissions, there is no basis upon which to conclude that
his representation was ineffective. 
However, as noted above, the United States Supreme Court, in Strickland,
expressly explained that the “[a]ctual or constructive denial of the assistance
of counsel altogether is legally presumed
to result in prejudice.”  466 U.S. at
692, 104 S. Ct. at 2067 (emphasis added). 
Here, the sparse record amply demonstrates that trial counsel wholly
failed to provide Valencia any meaningful assistance of counsel.  In fact, the record clearly reveals that
trial counsel did not know how to secure his client’s presence in court, made
no effort to provide a defense, did not ask a single question of DFPS’s only
witness, did not know how to preserve error, effectively acquiesced in the
termination of Valencia’s parental rights based upon scant and mostly
inadmissible evidence, and, post-trial, did not include in the statement of
appellate points a challenge to the legal and factual sufficiency of the scant
evidence on the issue of endangerment.  
Again, “the right to the assistance of counsel . . .
envisions counsel’s playing a role that is critical to the ability of the
adversarial system to produce just results.” 
Strickland, 466 U.S. at 685, 104 S. Ct. at 2063.  The right to counsel, thus, “encompasses the
right to have an advocate for one’s cause.” 
Childress, 103 F.3d at 1228. 
No prejudice inquiry is necessary “in cases of actual or constructive
denial of counsel,” “when a defendant can establish that counsel was not merely
incompetent but inert[.]”  Id.  Constructive denial, such as when counsel
“entirely fails to subject the prosecution’s case to meaningful adversarial
testing,” is the difference between “shoddy representation” and “no
representation at all.”  Id. at 1228–29;
see also Cronic, 466 U.S. at 659, 104 S. Ct. at 2047; Gochicoa v.
Johnson, 238 F.3d 278, 284–85 (5th Cir. 2000); Jackson v. Johnson,
150 F.3d 520, 525 (5th Cir. 1998).
Thus, the Fifth Circuit presumed prejudice in Childress where the court-appointed trial
lawyer “never investigated the facts, never discussed the applicable law with
[the defendant], and never advised him of the rights he would surrender by
pleading guilty.”  103 F.3d at 1223.  The court presumed prejudice because it found
that trial counsel took a “potted plant approach” to representing Childress;
that is, “counsel’s role was essentially passive.”  Id. at 1226 (emphasis added).
The Fifth Circuit, sitting en banc, also presumed
prejudice in the sleeping-lawyer case where defense counsel repeatedly slept in
trial while evidence was being introduced against the defendant.  Burdine, 262 F.3d at 338.  The State of Texas argued that “because
Burdine [could not] demonstrate precisely when [his lawyer] slept during his
trial, he [could] not prove that [the lawyer] slept during critical stages of [the]
proceeding.”  Id. at 347.  The court
rejected this argument, noting that “the State asks more of Burdine than the
Supreme Court or this Court has ever asked of a defendant attempting to show
the absence of counsel during a critical stage of trial.”  Id.  A defendant is “not required . . . to
explain how having counsel would have altered the outcome of his specific case.”  Id.
(emphasis added).  Rather, courts are to
look to whether “the substantial rights of a defendant may be affected” during
that type of proceeding.  Id. 
Thus, once the court accepted the fact that Burdine’s counsel slept
“during portions of [his] trial on the merits, in particular during the guilt
innocence phase when the State’s solo prosecuting attorney was questioning
witnesses and presenting evidence, there [was] no need to attempt to further
scrutinize the record.”  Id. at 349.   As noted by the court:
Unconscious counsel equates to
no counsel at all.  Unconscious counsel
does not analyze, object, listen or in any way exercise judgment on behalf of a
client. . . . When we have no basis for
assuming that counsel exercised judgment on behalf of his client during
critical stages of trial, we have insufficient basis for trusting the fairness
of that trial and consequently must presume prejudice.
 
Id. (emphasis added). 
Likewise, in the case before us, there is simply no basis for assuming that
trial counsel exercised judgment on behalf of Valencia.  
Three of our colleagues, concurring in the en banc opinion, contend that the panel has erred in concluding that Valencia was
constructively denied his right to counsel and presuming prejudice “on the
facts of this case.”  They assert that
rather than relying upon the Supreme Court’s express affirmation in Strickland
that the “[a]ctual or constructive
denial of counsel is legally presumed to result in prejudice,” the panel should
have evaluated the case as one concerning deficient performance and
prejudice.  In support of their position,
our colleagues rely upon Bell.  Their reliance is misplaced.
In Bell, the Supreme Court
reiterated that a “trial would be presumptively
unfair” if defense “counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.”  535
U.S. at 695–96, 122 S. Ct. at 1851.  It
again explained that “if counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing,”
prejudice to the defendant is presumed.  Id. at 697, 122 S. Ct. at 1851 (emphasis
added).  The Court emphasized that the
argument of the defendant in Bell was
“not that his counsel failed to
oppose the prosecution throughout” the trial, but that he failed to do so only
at two “specific points” in the “sentencing” phase of trial.  Id.
(emphasis added).  Thus, it concluded
that the two “aspects of counsel’s performance” in the sentencing phase that
were “challenged by respondent—the failure to adduce
mitigating evidence and the waiver of closing argument—are plainly of the same
ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice
components.”  Id. at 697–98, 122 S. Ct. at 1851–52.  Accordingly, prejudice to the defense was not
to be legally presumed.  Id. 

In fact, as emphasized by the Supreme Court, defense counsel
in Bell did subject the prosecution’s
case to meaningful adversarial testing. 
He sought to prove that the defendant was not
guilty of capital murder by reason of insanity and presented the expert
testimony of (1) a clinical psychologist that the defendant suffered from
substance abuse and posttraumatic stress disorders related to his military
service in Vietnam and (2) a neuropharmacologist about the defendant’s history
of illicit drug use, which included consuming “rather horrific” quantities and
“caused chronic amphetamine psychosis, hallucinations, and ongoing paranoia,
which affected [the defendant’s] mental capacity and ability to obey the law.  Id. at 690, 122 S. Ct. at
1848.  Defense
counsel also presented the testimony of the defendant’s mother, “who spoke of
her son coming back from Vietnam in 1969 a changed person, his honorable
discharge from service, his graduation with honors from college, and the deaths
of his father and fiancée . . . .”  Id. 
Counsel was further “able to elicit through other testimony that [the
defendant] had expressed remorse for the killings.”  Id.    
In his opening
statement to the jury in the punishment phase of the trial, defense counsel “called
the jury’s attention to the mitigating evidence already before them.”  Id.
at 691, 122 S. Ct. at 1848.  He suggested
that the defendant was “under the influence of extreme mental disturbance or
duress, that he was an addict whose drug and other problems stemmed from the
stress of his military service, and that he felt remorse.”  Id.  Counsel “urged the jury that there was a good
reason for preserving his client’s life if one looked at ‘the whole man’” and
“asked for mercy.”  Id.  Counsel also brought out
that his client had been awarded the Bronze Star in Vietnam and successfully
objected to the State’s proffer of photographs of the victims’ decomposing
bodies.  Id.  Defense counsel then
strategically waived his final argument to prevent the lead prosecutor, “an
extremely effective advocate, from arguing in rebuttal.”   Id.
at 692, 122 S. Ct. at 1848.  
Here, in stark contrast, the record clearly reveals that Valencia’s trial
counsel entirely failed to subject DFPS’s case to meaningful adversarial
testing at each critical stage of the proceeding below.  He did not know how to secure his client’s
presence in court, made no effort to provide a defense at all, did not call any
witnesses, did not ask a single question of DFPS’s only witness, did not know
how to preserve error, and effectively acquiesced in the termination of
Valencia’s parental rights based upon scant and mostly inadmissible evidence in
a trial that lasted only a few minutes. 
Moreover, Valencia, unlike the defendant in Bell, specifically argues that because his trial counsel’s
performance “did not simply consist of errors, omissions or poor trial
strategy” and “was so patently deficient,” Valencia “was denied any meaningful
assistance of counsel altogether” and prejudice to his defense must be
“presumed.”[20]  Valencia’s point is that trial counsel’s
wholesale nonperformance before, after, and throughout the entire exceedingly
brief proceeding is not of the same “ilk” as the two errors made by the otherwise
active trial counsel in Bell but
makes it “abundantly clear that [trial counsel] failed to render any meaningful
assistance.”  His complaint is not one of
“shoddy representation,” but that he essentially had “no representation at
all.”  See Childress, 103 F.3d at 1228.
A review of the entire record before us compels a
holding that Valencia received no meaningful assistance of counsel and was
denied an advocate for his cause. 
There can be no reasonable trial strategy that would call for not
securing the presence of one’s client at trial and then offering no defense for
that client when he is faced with termination of his fundamental parental
rights based upon scant and mostly inadmissible evidence.  See In re J.O.A., 283 S.W.3d at
342 (concluding that parent has fundamental liberty interest in maintaining
custody and control of his child).  During
trial, trial counsel idly sat by, doing nothing to ensure Valencia a fair
hearing, and he essentially allowed DFPS to terminate Valencia’s parental
rights in a summary proceeding without having to produce legally sufficient,
clear and convincing evidence to support its case.  Post-trial, he failed to include in the
statement of appellate points a challenge the legal and factual sufficiency of
the trial court’s finding on endangerment, despite the scant evidence DFPS
adduced on this issue.
The Supreme Court has emphasized that the right to the
effective assistance of counsel “is thus the right of the accused to require
the prosecution’s case to survive the crucible of meaningful adversarial
testing.”  Cronic, 466 U.S. at 656, 104 S. Ct. at 2045.  The Supreme Court went on to say, “if counsel
entirely fails to subject the prosecution’s case to meaningful adversarial
testing, then there has been a denial of Sixth Amendment rights that makes the
adversary process itself presumptively unreliable.”  Id. at 659, 104 S. Ct. at 2047.  
Taken as a whole, trial counsel’s performance can only
be seen as, at best, inert, and, at worst, acquiescing in DFPS’s efforts to
terminate Valencia’s parental rights. 
Trial counsel utterly failed to subject DFPS’s case to any meaningful
adversarial testing such that the process itself was presumptively
unreliable.  Because Valencia received no
meaningful assistance of counsel and was effectively denied an advocate for his
cause, prejudice to his defense must be presumed as a matter of law.  See id. 
Simply put, there is nothing in the record before us which demonstrates
that Valencia received the assistance of counsel necessary to justify reliance
on the outcome of the summary proceeding. 
Viewed objectively, a contrary conclusion would be unreasonable.[21]
Accordingly, the panel unanimously sustained
Valencia’s first issue.[22]  
Legal
Sufficiency
Having sustained his first issue, the panel
appropriately addressed the merits of Valencia’s second issue.  See In re J.O.A., 283 S.W.3d at 339
(addressing legal sufficiency point not preserved in statement of appellant
points as a result of ineffective assistance of counsel).  In his second issue, Valencia argues that the
evidence is legally and factually insufficient to support termination of his
parental rights under section 161.001(1)(E) because there is no evidence in the
record that he “engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endanger[ed] the physical or emotional well-being
of the child.”  He asserts that “[t]he
record is completely silent as to . . . what acts or omissions [he] committed
which endangered the child.”  He notes
that although Heiskill, in her affidavit, testified that Flores and the child
had tested positive for opiates at the child’s birth, nothing in Heiskill’s
testimony implicated Valencia.  He also
asserts that the trial court improperly took judicial notice of facts that were
subject to dispute and there is no evidence that the “individual(s) identified
in the criminal records was actually appellant.”
Standard of Review
A parent’s right to “the companionship, care, custody,
and management” of his children is a constitutional interest “far more precious
than any property right.”  Santosky v.
Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal
citation omitted).  The United States
Supreme Court has emphasized that “the interest of parents in the care,
custody, and control of their children is perhaps the oldest of the fundamental
liberty interests recognized by this Court.” 
Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060
(2000).  Likewise, the Texas Supreme Court
has also concluded that “[t]his natural parental right” is “essential,” “a
basic civil right of man,” and “far more precious than property rights.”  Holick v. Smith, 685 S.W.2d 18, 20
(Tex. 1985).  Consequently,
[T]ermination proceedings should
be strictly scrutinized, and
involuntary termination statutes are strictly
construed in favor of the parent.
 
Id. (emphasis
added).
Because termination “is complete, final, irrevocable,
and divests for all time that natural right . . . , the evidence in support of
termination must be clear and convincing before a court may involuntarily
terminate a parent’s rights.”  Id.  (citing Santosky, 455 U.S. at 747–48,
102 S. Ct. at 1391–92; Richardson v. Green, 677 S.W.2d 497, 500 (Tex.
1984)).  Clear and convincing evidence is
“the measure or degree of 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.”  Tex. Fam. Code Ann. § 101.007 (Vernon 2008); In re J.F.C., 96 S.W.3d 256,
264 (Tex. 2002).  Because the standard of
proof is “clear and convincing,” the Texas Supreme Court has held that the
traditional legal and factual standards of review are inadequate.  In re J.F.C., 96 S.W.3d at 264–66.  
Instead, in conducting a legal sufficiency review in a
parental-rights termination case, we must determine whether the evidence,
viewed in the light most favorable to the finding, is such that the fact finder
could reasonably have formed a firm belief or conviction about the truth of the
matter on which DFPS bore the burden of proof. 
See id. at 266.  In viewing
the evidence in the light most favorable to the judgment, we “must assume that
the fact finder resolved disputed facts in favor of its finding if a reasonable
fact finder could do so,” and we “should disregard all evidence that a
reasonable fact finder could have disbelieved or found to be incredible.”  In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005) (citing In re J.F.C., 96 S.W.3d at 266).  
However, a fact finder may not, from meager
circumstantial evidence, reasonably infer an ultimate fact, none more probable
than another.  Hammerly Oaks, Inc. v.
Edwards, 958 S.W.2d 387, 392 (Tex. 1997). 
This Court has explained that under the law of evidence, the term
“inference” means 
[A] truth or proposition drawn
from another which is supposed or admitted to be true.  A process of reasoning by which a fact or
proposition sought to be established is deduced as a logical consequence from
other facts, or a state of facts, already proved.
 
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.]
1993, writ dism’d w.o.j.) (quoting Black’s
Law Dictionary 700 (5th ed. 1979)). 
Thus, to “infer” a fact, one “must be able to deduce that fact as a
logical consequence from other proven facts.”  Id. 
In other words, there must be a logical and rational connection between
the facts in evidence and the fact to be inferred.  United States v. Michelena‑Orovio,
702 F.2d 496, 504 (5th Cir.), aff’d on reh’g, 719 F.2d 738 (5th Cir.
1983) (en banc).  With regard to the
sufficiency of evidence in circumstantial evidence cases, one inference cannot
be based upon another inference to reach a conclusion.  Marathon Corp. v. Pitzner, 106 S.W.3d 724,
728 (Tex. 2003).  Such stacking is not
considered evidence.  Id.
In proceedings to terminate the parent-child
relationship brought under section 161.001, DFPS must establish, by clear and
convincing evidence, one or more of the acts or omissions enumerated under
subsection (1) of section 161.001 and that termination is in the best interest
of the child.  Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009).  Both elements must be established, and
termination may not be based solely on the best interest of the child as
determined by the trier of fact.  Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Endangerment
To terminate the parent-child relationship on the
ground that a parent has “knowingly engaged in criminal conduct,” DFPS must
prove that the criminal conduct has resulted in the parent’s: 
(i)      conviction of an offense; and
 
(ii)     confinement or imprisonment and inability to
care for the child for not less than two years from the date of [DFPS’s]
filing [of its] petition.  
 
Tex. Fam. Code Ann. § 161.001(1)(Q) (Vernon Supp. 2009) (emphasis added).  Here, however, DFPS could not ask the trial
court to terminate Valencia’s parental rights on the ground that he had
“knowingly engaged in criminal conduct” because the most serious criminal offense
of which Valencia had been convicted, more than two years prior to the child’s
birth, was a state jail felony offense. 
The maximum punishment for a state jail felony is confinement in a state
jail for two years.  Tex. Penal Code Ann. § 12.35(a) (Vernon
Supp. 2009).
          Thus, based solely upon
Valencia’s “criminal history,” which consisted of several misdemeanor and state
jail felony offenses, DFPS asserted, and the trial court found, that Valencia
had “engaged in conduct or knowingly placed the child with persons who engaged
in conduct which endanger[ed] the physical or emotional well-being of
the child.”  See Tex. Fam. Code Ann.
§ 161.001(1)(E) (Vernon Supp. 2009) (emphasis added).  In support of this finding, DFPS relied on
Petitioner’s Exhibit No. 1, the packet of copies, only two of which are
certified, of criminal complaints and judgments and sentences purportedly made
and entered against Valencia.  DFPS
offered no other testimony from its only witness, Washington, or any other
evidence upon which the trial court could have reasonably formed a firm belief
or conviction that Valencia had actually endangered the child.  In sum, the only evidence offered to show
that Valencia had endangered the child was that (1) prior to the child’s birth,
he had been convicted of several misdemeanor and state jail felony offenses;
(2) at the time of the child’s birth, he was in jail pending trial for the
offense of aggravated robbery, a case which was later dismissed; and (3) after
the child’s birth, he stood accused by information of the misdemeanor offense
of assaulting Flores, who had already agreed to relinquish her parental rights.
Setting aside the statutory requirements of section
161.001(1)(Q) and disregarding the fact that the uncertified criminal history
records were inadmissible,[23]
intentional criminal activity that exposes a parent to incarceration may be
relevant to establish a course of conduct endangering the emotional and
physical well being of the parent’s children. 
See Allred v. Harris County Child Welfare Unit, 615 S.W.2d
803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (evidence of
father’s commission of numerous robberies was relevant).  However, to support the trial court’s
finding, the record must contain clear and convincing legally sufficient
evidence that Valencia had engaged in “endangering” conduct.  “Endanger” means to “expose to loss or injury”
or to “jeopardize”; it consists of conduct that is “more than a threat of
metaphysical injury” or the “possible ill effects of a less than ideal family
environment”; although, a child need not suffer actual physical injury to
constitute endangerment.  Boyd,
727 S.W.2d at 533.  Endangerment can
occur through both the acts and omissions of a parent.  See In re R.D., 955 S.W.2d 364, 367
(Tex. App.—San Antonio 1997, pet. denied).
Evidence of a parent’s past conduct, including a
criminal history, may be relevant and admissible if it shows a conscious course
of conduct and instability occurring both “before and after” a child’s
birth.  Avery v. State, 963 S.W.2d
550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ).  Imprisonment is a “factor to be considered .
. . on the issue of endangerment.” Boyd, 727 S.W.2d at 533.   However, the Texas Supreme Court has
explained that 
Mere imprisonment will not, standing
alone, constitute engaging in conduct which endangers the emotional or
physical well-being of a child. . . . [I]f the evidence, including the
imprisonment, shows a course of conduct which has the effect of endangering the
physical or emotional well-being of the child, a finding under [section
160.001(1)(E)][24] is
supportable.
 
Id. at 533–34
(emphasis added).  For example, a trial
court would not err in admitting evidence of a parent’s “lengthy criminal
record” involving narcotics abuse in a case in which the parent had “not
altered her behavior.”  Avery, 963
S.W.2d at 553.  However, the termination
of parental rights should not be used as punishment in addition to imprisonment
for the commission of criminal offenses. 
In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.]
2002, pet. denied).
In Boyd, the trial court entered a decree
terminating Boyd’s parental rights based on a finding that he had engaged in
conduct or knowingly placed his child with persons who had engaged in conduct
that endangered the child.  Boyd,
727 S.W.2d at 532.  The supreme court
expressly disapproved of the court of appeals’ definition of “danger” and its
holding that danger cannot be inferred from parental misconduct.  Id. at 533.  The gist of Boyd is that to constitute
endangerment, it need not be shown that a parent’s conduct was directed at the
child or that the child actually suffered an injury.  Id. 

The evidence presented at trial showed that Boyd had
been arrested and jailed for the then first degree felony offense of burglary
two days before the child’s birth; after Boyd was paroled, he lived with the
child for five months; he intermittently held three different jobs while out on
parole; and, within four months, Boyd was again convicted of another burglary
offense and sentenced to five years in prison. 
Id.  At the time the child
was taken by DFPS, he had emotional problems, which included sleep disorders,
dietary issues, bed-wetting problems, and temper tantrums.  Id. 
The supreme court did not hold, as asserted by the majority, that all
“[i]ntentional criminal activity that exposes a parent to incarceration is
conduct that endangers the physical and emotional well-being of a child.”  Nor did the supreme court, as asserted by
DFPS, hold that the evidence presented was legally sufficient to support the
trial court’s finding that Boyd had endangered the child; rather, it remanded
the case to the court of appeals to consider the issue.  Id. at 534.  However, the court of appeals did not issue a
new opinion on remand.
Here, Washington did testify that Valencia had a
“repeated criminal history,” but DFPS offered no evidence to establish that
Valencia’s incarceration for misdemeanors and state jail felonies, none of
which involved narcotics, and all of which resulted from offenses committed
prior to the child’s birth, had the effect of endangering the child.  Unlike Boyd, Valencia was not, after the
birth of his child, convicted of a first degree felony and sentenced to five
years in prison.  See id. at
533.  In fact, Valencia had, at the time
of trial, last been convicted of a state jail felony offense on September 23,
2004, more than two years prior to the child’s birth.  Washington, in response to a leading
question, merely stated her conclusion that because he had a “repeated criminal
history,” Valencia had engaged in conduct that endangered the physical and
emotional well-being of the child.  DFPS
did not adduce any evidence to support Washington’s conclusion or explain how
Valencia’s criminal history had actually endangered the child.  
Again, such evidence of incarceration alone will not
support a reasonable inference of actual endangerment, i.e., an inference
“deduced as a logical consequence from other facts, or a state of facts,
already proved.”  See Marshall Field,
859 S.W.2d at 400 (quoting Black’s Law
Dictionary 700 (5th ed. 1979)); see also Michelena‑Orovio,
702 F.2d at 504.  The panel has not, as
asserted by the majority, “discount[ed]” Boyd.  Boyd clearly requires something more
than “mere imprisonment” to establish, by clear and convincing evidence, a
course of conduct that has the effect of endangering the physical or emotional
well-being of a child in violation of section 160.001(1)(E).  727 S.W.2d at 533–34.  The majority’s contrary reading of Boyd is also inconsistent with the Texas
Legislature’s expressly stated requirements for termination of parental rights
for “criminal conduct” listed in Family Code section 161.001(1)(Q).
It is true that Valencia was in the Harris County Jail
at the time of the child’s birth. 
However, the case for which he was being held was, as conceded by DFPS,
dismissed.  He was not sentenced to
prison as was Boyd.  Also, Petitioner’s
Exhibit No. 1 does show that Valencia, on the date of trial, stood accused by
information of the misdemeanor offense of assaulting Flores.  However, DFPS did not present any testimony to
prove that Valencia had assaulted Flores, and nothing in the record indicates
that, as of the date the trial court entered its decree, he had been convicted
of the offense.[25]  It is hornbook law that a criminal
information cannot be considered as evidence that an accused has committed a
criminal offense.  Ex parte Dumas,
110 Tex. Crim. 1, 2, 7 S.W.2d 90, 90 (1928); see also United States v. Cox,
536 F.2d 65, 72 (5th Cir. 1976) (“[i]t is hornbook law that indictments cannot
be considered as evidence”); McLean v. State, No. 01‑08‑00466‑CR,
2010 WL 335611, at *5 (Tex. App.—Houston [1st Dist.] Jan. 28, 2010, no pet.)
(stating jury charge contained appropriate instruction that “criminal
information is not evidence of guilt”); Gonzales v. State, 977 S.W.2d
189, 190 (Tex. App.—Austin 1998, pet. ref’d) (“[a]n indictment or information
is not evidence”).  In regard to the
reference of DFPS’s counsel to “photos of his assault,” the record shows that
no photographs were marked as exhibits, authenticated through witness
testimony, or admitted into evidence.  Only
Petitioner’s Exhibit No. 1 was admitted into evidence, and the record contains
no such photographs. 
The majority asserts that in
the panel’s view “evidence of an assault [loses] all legal significance” when
the “parental[-rights] termination case comes ahead of the criminal trial” and
the panel would require DFPS to prove that Valencia had been “convicted” of the
misdemeanor offense of assault before considering any such assault in
determining whether Valencia had endangered the child.  However, we simply note the well-established
law that a copy of a
misdemeanor information, even if certified, does not constitute competent
evidence of guilt.  DFPS failed to
produce competent evidence, either through witness testimony or a record of
conviction, that Valencia had committed the misdemeanor offense of assault.
DFPS, disregarding the statutory requirements of
section 161.001(1)(Q), argues that a history of incarceration for criminal
offenses alone can support a finding of endangerment under 161.001(1)(E).  In support of its argument, DFPS relies on In
re C.H., 89 S.W.3d 17, 28 (Tex. 2002), In re M.R., 243 S.W.3d 807,
819 (Tex. App.—Fort Worth 2007, no pet.), In re J.T.G., 121 S.W.3d 117,
126–27 (Tex. App.—Fort Worth 2003, no pet.), In re U.P., 105 S.W.3d 222,
236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), In re T.D.C., 91
S.W.3d 865, 873, 880 (Tex. App.—Fort Worth 2002, pet. denied), and In re
S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).  However, in cases in which such a criminal
history is relied upon to support a finding of endangerment, including the
cases relied upon by DFPS, there is always, consistent with Boyd, other
evidence presented that puts the criminal history in the context of a pattern
of endangering conduct.  See In re
C.H., 89 S.W.3d at 21 (parent testified about extensive criminal history,
and psychologist testified ten year prison sentence would impede parent’s
ability to parent); Robinson v. Tex. Dep’t of Protective and Regulatory
Servs., 89 S.W.3d 679, 682–83 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
(criminal history plus parent’s testimony that she had long history of
narcotics abuse before and after birth of children and father’s testimony that
children were afraid of mother); Allred, 615 S.W.2d at 805–06 (criminal
history plus evidence that father beat mother after he learned she was pregnant
and threatened to throw mother down stairs to cause miscarriage); In re M.R.,
243 S.W.3d at 819 (criminal history plus testimony that parent used narcotics
in front of child and parent’s incarceration affected ability to take care of
child); In re J.T.G., 121
S.W.3d at 131, 133 (criminal history plus evidence of parent’s violence in
front of child, abuse as child, and abuse of narcotics and alcohol); In re
U.P., 105 S.W.3d at 231 (criminal history plus expert testimony about
impact on child and testimony about parent’s use of narcotics); In re S.F.,
32 S.W.3d 318, 321 (Tex. App.—San Antonio 2000, no pet.) (extensive criminal
history plus caseworker’s testimony about parent’s marijuana use and discipline
problems while incarcerated and the effect this had on child); In re S.D.,
980 S.W.2d at 763 (criminal history plus testimony that parent abused narcotics
and alcohol and had inability to support family).[26]  
These cases illustrate that the mere fact that
Valencia had a criminal history prior to the birth of the child does not
constitute clear and convincing, legally sufficient evidence, on its own, to
support a finding under section 161.001(1)(E). 
Again, Boyd is clear that “if the evidence, including the
imprisonment, shows a course of conduct which has the effect of endangering
the physical or emotional well-being of the child, a finding under [section
160.001(1)(E)] is supportable.”  727
S.W.2d at 534 (emphasis added).
For example, in In re J.N.R., this Court held
that the evidence was legally sufficient to support the trial court’s finding
that a father had endangered his child, when, while on parole and participating
in a DFPS family service plan, the father, “after knowing his parental rights
were in jeopardy, . . . continued to engage in criminal activity that resulted
in his being jailed.”  982 S.W.2d 137,
142 (Tex. App.—Houston [1st Dist.] 1998, no pet.), overruled on other
grounds, In re C.H., 89 S.W.3d 17 (Tex. 2002).  After the father was released from prison and
placed on parole, he became an active parent in his child’s life for five
months.  Id. at 140.  The father, working with DFPS, agreed to and
signed a family service plan, which “required him to agree to stay out of jail,
participate in his parole tasks, develop his relationship with [the child], and
maintain his employment.”  Id.  The father failed to comply with his
agreement when he was arrested on three separate occasions while on
parole.  Id. at 142.  At the time of his last arrest, he was
outside the area to which he was restricted under the terms of his parole, and
his parole officer testified that he was seeking a revocation of the father’s
parole.  Id.  Accordingly, we concluded that this evidence
showed that the father, while on parole and after agreeing to the requirements
of the family service plan, “continued to engage in conduct that would endanger
the emotional well-being of [the child].”[27]  Id. 
In this case, the record shows that DFPS created a
family service plan for Valencia in January 2007 prior to the establishment of
his parentage.  As per the plan,
Washington was to play an active role in assessing Valencia’s progress against
the plan.  However, there is no evidence
in the record that Valencia ever received a copy of the plan or even agreed to
the plan.[28]   Nor is there any evidence that Washington
engaged Valencia in any way regarding the plan. 
In fact, the record shows that Washington first met Valencia at a
hearing one year later in January 2008 when Valencia first appeared in the case
and offered to take a paternity test. 
Here, unlike in In re J.N.R., there is no additional evidence
that Valencia’s criminal history constituted a course of endangering conduct.
At trial, DFPS relied solely upon Valencia’s criminal
history of misdemeanor and state jail felony offenses to support the trial
court’s finding that Valencia had actually endangered the child.  Now, on appeal, DFPS additionally asserts
that Valencia engaged in endangering conduct through his failure to take “swift
and appropriate actions in support of [the child] during the pendency of the
case or to secure reunification,” “his apathetic attitude,” and “his failure to
take any action to check on the child or initiate visits before or after [he
took the paternity test].”[29]  In support of its position, the majority has
seized upon these assertions, which are not supported by the record.  However, “[i]t is axiomatic that an
appellate court reviews the actions of a trial court based on the materials
before the trial court at the time it acted.” 
Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (quoting Methodist Hosps. of Dallas v. Tall, 972 S.W.2d 894, 898 (Tex.
App.—Corpus Christi 1998, no pet.)).
Valencia was in the Harris County Jail in November
2006 at the time the child was born and when DFPS removed the child from
Flores’s care two days later and sued Valencia to terminate the parent-child
relationship.  It is clear that
Valencia’s incarceration pending trial on a case which was later dismissed does
not alone constitute endangering conduct. 
Valencia had had no contact with the child and, because he was in jail,
he could not take “swift and appropriate actions in support of [the child]”[30]
or appear in court on November 16, 2006, the date of the first adversary
hearing and the date that he was served with DFPS’s petition.  He simply had no time to retain counsel
between the time that he was served, while in jail at 8:40 a.m., and the time
of the first adversary hearing at 1:00 p.m. 
Neither could he appear and request the appointment of counsel.
In sum, the only evidence offered by DFPS on the issue
of endangerment consisted of copies, mostly uncertified, of criminal records
purportedly showing that Valencia had, (1) prior to the child’s birth, been
convicted of several misdemeanor and state jail felony offenses; (2) at the
time of the child’s birth, was in jail pending trial for the offense of
aggravated robbery, a case which was later dismissed; and (3) after the child’s
birth, stood accused by information of the misdemeanor offense of assaulting
Flores, who had already agreed to relinquish her parental rights.  Moreover, the record conclusively establishes
that Valencia had never had possession of the child. 
Viewing all of the evidence in the light most
favorable to the trial court’s finding, the trial court could not have
reasonably formed a firm belief or conviction that Valencia had engaged in a
course of conduct that endangered the physical and emotional well-being of the
child.  See Tex. Fam. Code Ann. § 161.001(1)(E).  Thus, the panel held that the evidence is
legally insufficient to support the trial court’s finding that Valencia, based
on his prior history of incarceration for criminal offenses, actually
endangered the child.  See Boyd,
727 S.W.2d at 531.
Accordingly, the panel unanimously sustained
Valencia’s second issue.
En Banc Reconsideration
Valencia was constructively denied his statutory right to counsel, and
his parental rights were terminated in a summary proceeding that lasted only a
few minutes.  After his court-appointed
trial counsel failed to secure Valencia’s presence in court so that he could
defend himself, trial counsel essentially acquiesced in the termination of
Valencia’s parental rights.  The
egregious conduct of counsel and the termination of Valencia’s parental rights
based on legally insufficient evidence shock the conscience and amount to a
gross violation of the Rule of Law.
Accordingly, the panel unanimously reversed that portion of the trial
court’s decree terminating the parent-child relationship between Valencia and
the child and rendered judgment that Valencia’s parental rights were not
terminated.  As demonstrated above, the
panel did so thoughtfully and dispassionately, objectively applying the facts
in evidence to the governing law after thoroughly reviewing the record and the
briefs and hearing the oral arguments of the parties.  The panel carefully allowed both sides to
thoroughly present their case even through the point of post-submission
briefing and a number of motions for rehearing, and the panel thoroughly
addressed the arguments made.  
As noted by the Fifth Circuit, there is nothing “new” about the rule of
presumed prejudice in cases in which the right to counsel has been
constructively denied; it is in fact “well-established.”  Burdine, 262 F.3d at 348.  Again, the Supreme Court, in Strickland,
specifically noted:
Actual or
constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.
 
 
466 U.S. at 692, 122 S. Ct. at 2067 (emphasis added).  Moreover,
in a very recent opinion, the Texas Supreme Court has again emphasized that 
[T]he private interests affected in a parental rights
termination case are of the highest order.
 As the [United States] Supreme Court has
said, natural parents have a “fundamental liberty interest . . . in
the care, custody, and management of their child [which] does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State.” We
have said that “termination cases implicate fundamental liberties” and that “a
parent’s interest in maintaining custody of and raising his or her child is paramount.”  
In re B.G., No. 07-0960, 2010 WL 2636050, at *4 (Tex. July 2, 2010)
(citing Santosky v. Kramer, 455 U.S.
745, 753–54, 102 S. Ct. 1388, 1394–95 (1982), In re B.L.D., 113 S.W.3d 340, 351–352 (Tex. 2003), and In re M.S., 115 S.W.3d at 547)) (emphasis
added).  Again, termination of parental
rights proceedings are to be strictly construed.  Holick, 685 S.W.2d at 20. 
Yet, the majority, disagreeing with the result compelled
by the governing law, has taken the case from the assigned panel.  It has done so improperly.
Violation of
the En Banc Standard
Texas’ intermediate courts of appeals “sit in sections
as authorized by law,” and the “concurrence of a majority of the judges sitting
in a section is necessary to decide a case.” 
Tex. Const. Art. V, §
6.  Thus, intermediate appellate judges “sit
in panels of three or more, as in the federal circuit courts of appeals.”  O’Connor v. First Court of Appeals,
837 S.W.2d 94, 96 (Tex. 1992).  
Unless a court of appeals with more than three justices votes to decide a
case en banc, the case “must be assigned for decision to a panel of the court
consisting of three justices.”  Tex. R. App. P. 41.1(a).  The panel’s opinion “constitutes the court’s
opinion, and the court must render a judgment in accordance with the panel
opinion.”  Id.  Thus, the panel acts essentially as a
three-judge court, possessing full authority to decide the cases before it on
behalf of the entire court.  Thompson
v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d) (Jennings, J., concurring in denial of en banc consideration).  
Accordingly, in Texas, en banc
consideration of a case is disfavored:

En Banc Consideration Disfavored. En banc consideration of a case is not favored and
should not be ordered unless necessary to secure or maintain uniformity of a
court’s decisions or unless extraordinary circumstances require en banc
consideration. 
 
Tex. R. App P.
41.2(c).  This standard has been
described as “exacting,” and the failure to follow it raises “fundamental”
issues.  Schindler Elevator Corp. v.
Anderson, 78 S.W.3d 392, 423–24 (Tex. App.—Houston [14th Dist.] 2001, judgm’t vacated without reference to the
merits due to settlement by the parties, No. 02-0426, 2003 Tex. Lexis 68 (Tex.
May 22, 2003) (mem. op.) (Frost, J. concurring in denial of en banc
consideration) (denial of en banc consideration “compelled by the exacting
standard for en banc review”) (Edelman, J. concurring in denial of en banc
consideration) (failure to follow en banc standard raises “fundamental” issues
of (1) “How important is it to our system of justice that decisions be reached
in an impartial manner, i.e., based on the issues, law, and evidence presented
rather than other considerations?” and (2) “What could suggest a greater lack
of impartiality than to decide a case based on . . . an issue not raised by
either party?”).  Thus,
The standard for en banc consideration is not whether
a majority of the en banc court may disagree with all or a part of a panel
opinion.  Neither is an assertion that an
issue is “important” sufficient.  Rather,
when there is no conflict among panel decisions, the existence of
“extraordinary circumstances” is required before en banc consideration may be
ordered. 
 
Thompson, 89 S.W.3d at 856 (Jennings, J.,
concurring in denial of en banc consideration). 
In regard to Federal Rule of Appellate Procedure 35, which concerns en
banc review in the federal courts of appeal, the Fifth Circuit has noted:
A petition for rehearing en banc is an extraordinary procedure that is
intended to bring to the attention of the entire court an error of exceptional
public importance or an opinion that directly conflicts with prior Supreme
Court, Fifth Circuit or state law precedent . . . . 
 
5th Cir. R. 35
I.O.P. Petition for Rehearing En Banc. 
Generally, alleged errors regarding the facts of the case, including
sufficiency of the evidence challenges, are “matters for panel rehearing, but
not for rehearing en banc.”  Id.
Here, en banc reconsideration
was not at all “necessary” to maintain uniformity with prior First Court of
Appeals decisions.  Moreover, the panel’s
holdings in regard to the particularly egregious circumstances presented in
this case do not in any way amount to an “extraordinary circumstance” which
“requires” en banc consideration.  The
simple fact is that the majority does not like the “well-established” rule of
presumed prejudice and the result compelled by the governing law.  As noted above, the “obvious problem” with such
“results-oriented judging” is that “it produces bad results because it guts the
rule of law.” [31]  When a court, even to reach what it believes
to be a more desirable result in a particular case, fails to perform, dispassionately
and impartially, its solemn duty to ensure due process of law, the Rule of Law
is violated, and, on that rule, society can no longer depend.   
The Majority’s Errors
Taking upon itself the role of advocate, the majority has considered as
fact what DFPS has merely asserted in its briefing.  Appellant courts are supposed to be bound by
the record containing the evidence that was before the trial court. See Hamm, 178
S.W.3d at 272.  However, as revealed by the trial
transcript above, much of what is asserted by DFPS and the majority as fact is either
objectively not true or not supported in the record.  The majority proceeds to decide the case en
banc, conditionally affirming the trial court’s judgment.  It offers a post-decision abatement, requested
by neither party, and it fails to adequately address the actual arguments made
by the parties and the pertinent controlling authorities.  See Tex. R. App. P. 47.1.
Taking upon itself the role of policy maker, the
majority, in derogation of the “well-established” governing law, creates new
law.  It, on its own initiative, suggests
to Valencia that he request an abatement for a hearing on whether his trial
counsel’s deficient performance harmed him. 
Again, neither party has asked for such an abatement to be made after
the panel has already decided the case and the majority has conditionally done
so.  It is interesting to note that in
criminal cases, this Court, also in an en banc opinion, has specifically precluded
criminal defendants from requesting an abatement to restart the appellate
timetables to file new trial motions when trial courts untimely appoint appellate
counsel after new trial deadlines have expired. 
See Benson v. State, 224 S.W.3d 485, 488 (Tex. App.—Houston [1st Dist.]
2007, no pet.), overruling, Jack v. State, 64 S.W.3d 694 (Tex.
App.—Houston [1st Dist.] 2002, pet. dism’d). 
More importantly, Valencia simply does not need
an abatement to prove up in the trial court the prejudice to his defense that
he has already established in this Court as a matter of law.  This presents Valencia with no new “opportunity.”  Rather, in effect, such an abatement would
give DFPS a “do-over” to put in the record what it failed to establish when it
tried the case. 
In support of their conditional affirmance and “abatement”
suggestion, the majority relies on In re J.O.A. and In re M.S.  Neither case supports the majority’s
position.  In neither case did the Texas
Supreme Court abate or remand the parent’s ineffective assistance of counsel
claim to the trial court for a hearing.  In
In re J.O.A., the supreme court, after disagreeing with the court of
appeals’ holding that the evidence was legally insufficient to support
termination of a father’s parental rights, noted that the court of appeals had
also held that the evidence was factually insufficient to support termination.  283 S.W.3d at 347.  Accordingly, the supreme court “remand[ed]
the cause to the trial court for a new trial.” 
Id.  In In re M.S.,
after holding that a trial counsel’s failure to preserve a factual sufficiency
challenge in a termination of parental rights case “may constitute ineffective
assistance of counsel,” the supreme court remanded the case to the court of
appeals to “determine whether counsel’s failure to preserve the factual
sufficiency issue was not objectively reasonable, and whether this error
deprived [the mother] of a fair trial.” 
115 S.W.3d at 550.  
Moreover, the majority mischaracterizes what a defendant must actually establish
to meet the second prong of Strickland.  As expressly explained by the United States
Supreme Court in Strickland, a
defendant need not, as the majority asserts, show that the outcome of his trial
“would have been different had counsel provided him with a good defense” or the
errors of counsel determined the outcome of his case.  He need not even “show that counsel’s deficient
conduct more likely than not altered the outcome in the case.”  Strickland,
466 U.S. at 693, 104 S. Ct. at 2068.   Rather,
he must simply show a “reasonable
probability” that the outcome of the proceeding would have been different,
i.e., one sufficient to undermine confidence in the outcome.  Id.
at 694, 104 S. Ct. at 2068.  Again, 
The result of a proceeding can
be rendered unreliable, and hence the proceeding itself unfair, even
if the errors of counsel cannot be shown by a preponderance of the evidence to
have determined the outcome.
 
Id. (emphasis added). 
Thus, the majority’s bizarre and awkward abatement procedure in not only
unnecessary, it is actually pointless.
In regard to the legal sufficiency of the evidence, to the
extent that the majority opinion can be read to hold that evidence of
Valencia’s history of misdemeanor and state jail felony convictions and the
fact that he stood accused by information of the misdemeanor assault of Flores
is legally sufficient to support the trial court’s finding of endangerment, the
majority mischaracterizes the Texas Supreme Court’s holding in Boyd.  Also, the majority’s conclusion is not
consistent with a strict construction of the statute in favor of the
parent.  See Holick, 685
S.W.2d at 20.  Moreover, the conclusion
is not only inconsistent with well-established law, it renders Family Code
section 161.001(1)(Q) meaningless.  If
allowed to stand, the majority’s opinion will subject literally thousands of similarly
situated parents, male and female, in the Houston area to termination of their
parental rights as a post-conviction punishment.  Under the majority’s en banc opinion, a
mother with a criminal history of misdemeanor and state jail felony convictions
similar to Valencia’s could have her parental rights terminated if she is ever
accused of the misdemeanor offense of assault by slapping another person with
her hand.  This is not the law as
intended by the Texas Legislature.  
Simply put, the majority has not only taken control of the case from the
assigned panel in violation of the en banc standard, it has, in an en banc
opinion, committed several errors of such importance to the state’s
jurisprudence that they should be corrected. 
See Tex. Gov’t Code Ann. § 22.001(a)(6) (Vernon 2004). 
Conclusion
In sum, the majority, in disregard of the clearly articulated standard
for en banc consideration, has taken control of the case from a unanimous panel
that had impartially and dispassionately decided the issues presented to it
based upon the facts in the record and the “well-established” governing
law.  In doing so, and in failing in its
duties to ensure due process of law and to correct the erroneous fact finding
of the trial court, the majority not only excuses the behavior of Valencia’s
trial counsel and the errors of the trial court, it actually encourages and
promotes them.  Thus, the majority, in
its en banc opinion, “encourage[s] methods of decision making that make failure
even more likely and then inevitable.”[32]  
In accord with the governing law, I would reverse that
portion of the trial court’s judgment terminating Valencia’s parental rights to
the child and render judgment that his parental rights are not terminated. 
The majority’s opposition to the governing law is palpable,
its errors are profound, and its action in taking control of this case is
simply breathtaking.
 
 
 
 
Terry
Jennings
Justice
Justice Bland, joined by Chief
Justice Radack, and by Justices Alcala, Hanks, and Massengale, for the en banc
court.
 
Justice Jennings, dissenting, joined by Justice Higley.
Justice Keyes, concurring in
part and dissenting in part.
 
Justice Sharp, dissenting, in
an opinion to follow.
 
Justice Massengale,
concurring, joined by Justices Alcala and Hanks.
 
 




[1]
            Originalism: A Quarter-Century of Debate 26 (Steven G. Calabresi ed. 2007) [hereinafter Originalism].
 


[2]              Originalism
at 26–27. 
 


[3]             Id. at 27.  
 


[4]             Magna
Carta, 1215, c. 39.
 


[5]
            In
contrast to such restraint, the term “judicial activism” has been defined as a
judge “deciding a case on the basis of his [or her] own (usually moral)
preferences rather than the governing law.” 
American Conservatism: An
Encyclopedia 460 (Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson eds.
2006).
 


[6]
            Dietrich Dörner,
The Logic of Failure 10 (Ritz
& Robert Kimber trans., Metropolitan Books 1996).  


[7]             See Tex. Fam. Code
Ann. § 161.001(1)(E)
(Vernon Supp. 2009).
 


[8]
            See Valencia
v. Tex. Dep’t of Family and Protective Servs., No. 01-08-00345-CV, 2010 WL 1240988, at *9
(Tex. App.—Houston [1st Dist.] Mar. 25, 2010, no pet. h.).


[9]           DFPS
also petitioned for conservatorship of the child, and the trial court, in its
decree terminating Valencia’s parental rights, found that appointment of a
parent as managing conservator of the child would not be in the best interest
of the child because the appointment “would significantly impair the child’s
physical health or emotional development.” 
See Tex. Fam. Code. Ann.
§ 153.131 (Vernon 2008).  Although Valencia, in the prayer of his
brief, asks this Court to “reverse the appointment of DFPS as [the child’s]
sole managing conservator,” he did not assign a separate issue for our review
or provide briefing regarding conservatorship. 
See Tex. R. App. P. 38.1(f), (i). 
Because Valencia does not separately challenge the trial court’s order
regarding conservatorship, the panel did not disturb that portion of the trial
court’s decree.  See In re
J.A.J., 243 S.W.3d 611, 617 (Tex. 2007) (holding that, because different
evidentiary standards apply, parent must separately challenge termination of
parental rights and appointment of conservator when DFPS seeks conservatorship
under Texas Family Code section 153.131). 

 


[10]
       Although
the trial court overruled the objection “goes to the criminal side,” no
photographs were marked as exhibits or actually authenticated through the
testimony of a witness.  Only
Petitioner’s Exhibit No. 1 was actually admitted into evidence.  When this Court ordered the court reporter to
supplement the record with “the reporter’s record containing all of the
recorded testimony and evidence admitted at the trial,” the court reporter
responded by filing the trial transcript and only one exhibit, Petitioner’s
Exhibit No. 1, and not any photographs.
 


[11]
       Petitioners
Exhibit No. 1 is a packet of copies, only two of which are certified, of
criminal complaints and judgments and sentences purportedly entered against
Valencia.  As conceded by DFPS, the
certified copies of documents contained in Petitioner’s Exhibit No. 1 reveal
that the case against Valencia for the offense of aggravated robbery was
dismissed on March 26, 2007.  Moreover,
although a certified copy of a criminal information, apparently filed on March
29, 2008, accused Valencia of the misdemeanor offense of “Assault-Family
Member,” nothing indicated that, as of the date that the trial court entered
its decree, he had been convicted of the offense.  
 
            Inexplicably, counsel for DFPS
merely stated, “[t]hese are photos of his assault” and presented no testimony
to prove that Valencia had committed the misdemeanor offense of assault.  A criminal information cannot be considered
evidence that an accused has committed a criminal offense.  Ex
parte Dumas,
110 Tex. Crim.
1, 2, 7 S.W.2d 90, 90 (1928).
 
          The uncertified copies of criminal complaints and
judgments and sentences in Petitioner’s Exhibit 1 purport to establish that
Valencia was convicted of the following offenses: (1) on April 4, 1997, the
offense of unauthorized use of a motor vehicle, punished as a misdemeanor with
a sentence of 180 days confinement in the Harris County Jail; (2) on November
11, 1997, the offense of theft from a person, punished as a misdemeanor with a
sentence of one year confinement in the Harris County Jail; (3) on April 22,
1998, the offense of driving while intoxicated, a misdemeanor, with a sentence
of 60 days in the Harris County Jail; (4) on February 14, 2000, the offense of
evading arrest, a misdemeanor, with a sentence of 60 days in the Harris County
Jail; (5) on May 30, 2000, the offense of assault, a misdemeanor, with a
sentence of 90 days in the Harris County Jail; (6) on June 25, 2002, the
offense of driving while intoxicated, a misdemeanor, with a sentence of 90 days
in the Harris County Jail; (7) on September 19, 2003, the offense of
unauthorized use of a motor vehicle, a state jail felony, with a sentence of
180 days in a state jail; and (8) on September 23, 2004, the offense of theft,
a state jail felony, with a sentence of 14 months in a state jail.  
 
            The punishment for a
state jail felony is by confinement in a state jail for any term of not more
than two years or less than 180 days and a possible fine not to exceed
$10,000.  Tex. Penal Code Ann. 12.35(a), (b) (Vernon Supp. 2009).
 


[12]           David
McCullough, John Adams 68 (Simon & Schuster 2001).


[13]          The
motion, which is typed, reads in pertinent part as follows:
 
            1.         This
Motion is brought by the Harris County Attorney’s Office on behalf of the Department
of Family and Protective Services, who asks the Court, pursuant to Rule
251, Texas Rules of Civil Procedure, to grant a continuance for the trial; of
this cause.  As grounds for the requested
continuance Movant alleges:
 
1.1.      Additional time is needed to bench warrant
the alleged father, Joe Lewis Valencia.
 
. . . .
 
The motion contains a
signature space, which clearly reads:
 
Respectfully submitted,
MIKE STAFFORD
HARRIS COUNTY ATTORNEY
SPN# [. . .]
 
___________________________
Susan Fillion
Attorney for Petitioner, Department
of Family
and Protective Services 
2525 Murworth Drive, Suite
300
Houston, TX 77054-1603
. . . .
 
Although not signed by her, the signature space also
contains the State Bar number and telephone number of Fillion.  Stafford and Fillion’s information is lined
through, and, next to this information appears, in handwriting, the signature,
name, and information of Valencia’s trial counsel.  


[14]          See Tex. Fam.
Code. Ann. § 161.001(1)(E) (Vernon Supp. 2009) (“The court may order
termination of the parent-child relationship if the court finds by clear and
convincing evidence . . . that the parent has . . . engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well‑being of the child[.]”).


[15]          See Tex. R. Civ.
P. 297.  


[16]
          Joe Lewis
Valencia v. Dep’t of Family and Protective Servs., No. 01-08-00345-CV, (Tex.
App.—Houston [1st Dist.] May 6, 2009, order) (panel consisting of Justices
Jennings, Alcala, and Higley).


[17]        This Court has further recognized that a parent has a
constitutional right to counsel in such cases. 
Bermea v. Tex. Dep’t of Family and Protective Servs., 265 S.W.3d
34, 39 (Tex. App.—Houston [1st Dist.] 2008), pet. denied, 264 S.W.3d 742 (Tex. 2008) (per curiam); In re
J.M.S., 43 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  In
so doing, we have emphasized
 
The United
States Supreme Court has unanimously held that “the interest of parents in
their relationship with their children is sufficiently fundamental to come
within the finite class of liberty interests protected by the Fourteenth
Amendment.” . . . It also unanimously held that “[f]ew
consequences of judicial action are so grave as the severance of natural family
ties.” . . . For these reasons, the United States Supreme
Court places termination of parental rights cases in the same category as
criminal cases and analogizes a parent losing parental rights to a “defendant
resisting criminal conviction” because both seek “to be spared from the State’s
devastatingly adverse action.”  
 
In re J.M.S., 43 S.W.3d at 63 (quoting M.L.B. v. S.L.J.,
519 U.S. 102, 103, 117 S. Ct. 555, 565, 568 (1996)); see also Bermea,
265 S.W.3d at 39. 


[18]           McCullough at 66.


[19]
          The
majority asserts, “Following J.O.A.
and the Texas Supreme Court’s holding in M.S.,
we uphold the requirement announced in the Strickland’s
second prong, and we place the burden on the father to show that the
outcome of this trial would have been different had counsel provided him with a
good defense.”  Justice Keyes, in her
concurring and dissenting opinion, asserts that the standard is that Valencia’s
“parental rights would probably not have been terminated but for his counsel’s
ineffective performance at trial.”


[20]
          Our concurring colleagues assert that the issue of
constructive denial of counsel “is not presented by this case.” However,
Valencia expressly presents this as his first issue in his briefing, and this
Court has an obligation to directly address the issue.  See
TEX. R. APP. P. 47.1.
 
            Our colleagues further
assert that the panel has conducted a deficient performance and prejudice
evaluation and there is “no reason to presume prejudice because the panel found
prejudice.”  The panel did highlight some
of the many significant failures of Valencia’s trial counsel to act on
Valencia’s behalf throughout the pre-trial, trial, and post-trial stages of the
proceedings below.  However, these
collective failures demonstrate that Valencia, in contrast to the defendant in Bell, received no meaningful assistance
of counsel at all.  Valencia’s trial was
“presumptively unfair.”  Bell, 535 U.S. at 695–96, 122 S. Ct. at
1851.
 
            The panel did
conclude, as asserted by our concurring colleagues, that the post-trial
representation of Valencia by his trial counsel was essentially inert, due in
part by his failure to challenge the legal sufficiency of the evidence to
support the trial court’s finding that Valencia had “endangered” the child.  However, the panel, pursuant to Texas Supreme
Court authority, addressed the legal sufficiency of the evidence in regard to
the trial court’s finding of “endangerment” only after concluding that Valencia
was constructively denied his right to counsel. 
See In re J.O.A., 283 S.W.3d at
344–47 (addressing legal sufficiency
point not preserved in statement of appellant points as a result of ineffective
assistance of counsel).  
 
Thus,
the panel addressed the threshold issue of ineffective assistance, and its holding
that Valencia was constructively denied his right to counsel was not, as the
majority asserts, an “alternative holding.” 


[21]
          In accord with the United States Supreme Court’s
explanation of the second prong of Strickland
in regard to deficient performance claims,
the Texas Supreme Court has recently explained that when counsel fails to
file a statement of appellate points, a parent must establish the prejudice
prong of Strickland by
“demonstrate[ing] that he could prevail
on appeal” on the issues counsel failed to preserve.  In re
B.G., No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (emphasis
added). Thus, the law does not require Valencia to show that the outcome at trial would have been
different.  Again, the critical question on appeal is whether the appellate court
can justifiably rely on the outcome of the proceeding.  Strickland,
466 U.S. at 691–92, 104 S. Ct. at 2067. 
 


[22]          In
post-submission briefing, DFPS argues that Valencia cannot bring an ineffective
assistance of counsel claim because he had no right to statutorily appointed
counsel as he did not “respond in opposition” when he was served on November
16, 2006, file an affidavit of indigency, and seek appointment of counsel.  See Tex.
Fam. Code Ann. § 107.013 (Vernon Supp. 2009). 
DFPS asserts that Valencia must have retained his trial counsel.  
 
When trial counsel first acted
on behalf of Valencia by filing the September 6, 2007 motion for continuance,
he did so using a form provided by DFPS. 
This fact does not support that Valencia had at that time retained trial
counsel as his counsel.  An attorney may
not unilaterally create an attorney-client relationship with a person; that
person must take some express or implied act to retain counsel.  See Span Enter. v. Wood, 274
S.W.3d 854, 858 (Tex. App.—Houston [1st Dist.] 2008, no pet.).  Moreover, in January 2008, trial counsel
filed Valencia’s answer, in which he stated “NOW COMES the undersigned duly
appointed attorney ad litem for JOE LEWIS VALENCIA . . . .”  (Emphasis added.).  Thus, the record clearly reflects that trial
counsel was acting as Valencia’s court-appointed attorney.  
 
Nevertheless, DFPS, in its
second motion for en banc reconsideration, argues that Valencia did not have
the right to effective assistance of counsel because “he did not have a right
to statutorily appointed counsel” and trial counsel’s representation of
Valencia was based on trial counsel’s (and, apparently, the trial court’s)
misunderstanding of the scope of his appointment, that is, he had only been
appointed to represent the ‘unknown father,’ a separate party who was entitled
to counsel because the unknown father had not filed with the paternity registry
and both his identity and location were unknown.”  
 
In support of this argument,
DFPS relies on In re V.G., No. 04-08-00522-CV, 2009 WL 2767040, at *12
(Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.) (holding parent who
retained counsel in parental rights termination case was not entitled to raise
ineffective assistance of counsel claim) and In re V.N.S., No.
13-07-00046-CV, 2008 WL 2744659, at *5 (Tex. App.—Corpus Christi July 3, 2008,
no pet.) (mem. op.) (holding right to effective assistance of counsel is
limited to “cases where indigent parents are appointed counsel and where
parental rights are being wholly terminated”). 

 
However, as explained by the
Fort Worth Court of Appeals, 
 
Just as the Sixth Amendment recognizes an accused’s
right to counsel and that counsel is necessary to produce fair and just
results, the statutory guarantee of counsel recognizes a parent’s right to
counsel and imports that counsel’s skill and knowledge is necessary to
accord parents in termination proceedings sufficient opportunity to meet the
state’s “awesome authority” to terminate their parental rights.  Thus, the State of Texas has recognized
the importance of counsel for parents in termination proceedings.  Considering the State’s parens patriae
interest in promoting the welfare of the child, the statutorily granted right
to counsel implies that counsel is necessary to an accurate and just result.
 
In re K.L., 91 S.W.3d 1, 10B11 (Tex.
App.—Fort Worth 2002, no pet.) (emphasis added).  Simply put, a parent who can retain counsel
should not be deprived of the right to effective assistance of counsel in a
proceeding to terminate his parental rights merely because he can afford to
hire a lawyer.  Implicit in the Texas
Legislature’s granting of counsel upon an indigent parent once the State has
instituted formal proceedings to terminate his parental rights “is recognition
of a parent’s right to counsel in termination proceedings.”  Id. at 10.  Moreover, there is no meaningful cure, in the
absence of a right to effective assistance of counsel, for a parent whose
parental rights are erroneously terminated due to counsel’s deficiencies.  Id. at 11.  A claim for civil malpractice seeking
monetary damages is “wholly inadequate” to compensate a parent for the loss of
his parental rights in a proceeding where counsel was ineffective.  Id. 
A claim for ineffective assistance is the only “meaningful redress” for
such a parent, whether counsel was appointed or retained.  See id.  Thus, whether trial counsel was appointed
pursuant to the Family Code, simply appointed, or retained, Valencia was
entitled to representation necessary to ensure that the trial was fair.  See Strickland, 466 U.S. at 685, 104
S. Ct. at 2063. 


[23]          Criminal
history records are public records that must be authenticated before they are
admissible.  See Hull v. State,
172 S.W.3d 186, 189–90 (Tex. App.—Dallas 2005, pet. ref’d); Carlock v. State,
99 S.W.3d 288, 295 (Tex. App.—Texarkana 2003, no pet.).  The requirement of authentication is a
“condition precedent to admissibility.”  Tex R. Evid. 901(a).  Authentication of a public record requires
evidence that a purported public record is from the public office where items
of that nature are kept.  Tex. R. Evid. 901(b)(7).  A public record can be self-authenticating if
the document (1) bears “a seal purporting to be that of . . . any State . . .
and a signature purporting to be an attestation or execution” or (2) purports
“to bear the signature in the official capacity of an officer or employee of
[the State], having no seal, if a public officer having a seal and having official
duties in the [State] of the officer or employee certifies under seal that the
signer has the official capacity and that the signature is genuine.”  Tex.
R. Evid. 902(1), (2).  In Carlock,
uncertified copies of existing judgments of the defendant’s alleged prior
convictions were inadmissible because the defendant’s parole officer was unable
to provide the proof necessary for authentication that the judgments were from
the public office responsible for maintaining those records.  99 S.W.3d at 295.  
 
None of the copies of documents offered by DFPS to
prove that Valencia had previously been convicted of several misdemeanors and
state jail felonies was authenticated. 
Washington, like the parole officer in Carlock, could not have
authenticated the records.  See id.  Thus, the unauthenticated criminal history
records were inadmissible.  Id.  However, because trial counsel did not object
to their admission, Petitioner’s Exhibit No. 1 must be considered in a
sufficiency review.  See Tex. R. Evid. 802 (“Inadmissible
hearsay admitted without objection shall not be denied probative value merely
because it is hearsay.”); Tear v. State, 74 S.W.3d 555, 559 (Tex.
App.—Dallas 2002, pet. ref’d) (when reviewing legal sufficiency, courts “look
to all the evidence in the record, including admissible and inadmissible
evidence, and direct and circumstantial evidence”); see also Farley v.
Farley, 731 S.W.2d 733, 734 (Tex. App.—Dallas 1987, no writ) (applying rule
802 and explaining that unauthenticated judgment of another state’s court,
which would be hearsay, was not denied probative value when admitted without
objection).


[24]          Boyd references section 15.02(1)(E), the predecessor to
Texas Family Code section 161.001(1)(E). 


[25]          At oral
argument, this Court invited briefing on the issues as to whether it could take
judicial notice of whether Valencia was or was not subsequently convicted of
this offense and whether we could consider any such information in deciding the
issues presented.  After considering the
arguments of the parties, the panel concluded that we may not take judicial
notice of a conviction that was not in existence at the time of trial.  See Brown v. Brown, 236 S.W.3d
343, 349 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  In conducting its analysis, an appellate court
is bound by the record containing the evidence that was before the trial court
at the time it entered its decree.  See
Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961).  “It is axiomatic that an appellate court
reviews the actions of a trial court based on the materials before the trial
court at the time it acted.”  Hamm v.
Millennium Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied) (quoting Methodist
Hosps. of Dallas v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi
1998, no pet.)).


[26]          See
also Padilla v. Dep’t of Family and Protective Servs., No. 01-07-00313-CV, 2008 WL 525750, at *1–2 (Tex.
App.—Houston [1st Dist.] Feb. 28, 2008, no pet.) (mem. op.) (criminal history
plus testimony as to multiple prior referrals with DFPS); Callahan v.
Brazoria County Children’s Protective Servs. Unit, No. 01-01-00916-CV, 2003
WL 21299952, at *1 (Tex. App.—Houston [1st Dist.] June 5, 2003, no pet.) (mem.
op.) (criminal history plus psychiatrist’s testimony that father had propensity
for violence and anti-social personality disorder, mother’s testimony about
father’s violence towards family, and father’s testimony about marijuana use).


[27]          See
also In re H.G.H., No.
14-06-00137-CV, 2007 WL 174371, at *9 (Tex. App.—Houston [14th Dist.] Jan. 25,
2007, no pet.) (mem. op.) (holding “[a]ppellant’s repeated incarceration,
continuing propensity towards criminal conduct, failure to support [the child],
and failure to complete, or make a good-faith effort to complete, the
court-ordered family services constitute a course of conduct which endangered
the physical or emotional well-being of [the child]”). 


[28]          In its
third motion for en banc reconsideration, DFPS, in an argument that it did not
make to the trial court, in its briefing to this Court, or in its oral argument
to this Court, asserts that Valencia endangered the child by not complying with
the court ordered family service plan. 
DFPS asserts that Valencia had a “responsibility to comply with the
terms of the Department’s service plan by court order,” regardless of
whether he “agreed” to the plan, and DFPS cites to Texas Family Code section
263.103, which it asserts says “plan may take effect even if Department files it
without parent’s signature.”  While
section 263.103 provides that the “plan takes effect . . . when the department
. . . files the plan without the parents’ signatures,” DFPS ignores the
remainder of the statute.  See Tex. Fam. Code. Ann. § 263.103(d) (Vernon 2008).  The statute also requires that “the child’s
parents and the representative of the department . . . shall discuss each term
and condition of the plan” and “[i]f the department . . . determines that the
child’s parents are unable or unwilling to sign the service plan, the
department may file the plan without the parents’ signatures.”  Id. § 263.103(a), (c). The record
contains no evidence that DFPS complied with its statutory requirements before
filing the plan.  The Family Code does
provide for termination of parental rights if a parent “failed to comply with
the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the child’s
removal from the parent.”  Tex. Fam. Code. Ann. § 161.001(1)(O) (Vernon Supp. 2009).  However, even though the trial court ordered
Valencia to comply with the family service plan, the record contains no
evidence regarding whether or not Valencia did so.  Moreover, DFPS did not even ask the trial
court to consider this section as a ground for terminating Valencia’s parental
rights, and the trial court made no such finding.


[29]          In its
third motion for en banc reconsideration, DFPS asserts that Valencia, after the
State, in March 2007, dismissed the case against him for the offense of
aggravated robbery, “never took any action to care for or support the child in
the full year when he was not subject to incarceration.”  The majority asserts that Valencia, “when not
incarcerated,” had not “seen the child, paid support, or made arrangements to
provide [the child] with food, clothing, shelter or care” or “inquired about or
supported the child or made any effort to see to her needs.”  However, as noted above, the trial record in
no way supports the assertions of DFPS or the majority.  
 
First, the record is unclear as
to if, or for how long, Valencia was out of jail after the State dismissed in
March 2007 the aggravated robbery case. 
In fact, during the “full year” that DFPS asserts that Valencia was not
incarcerated, the clerk’s record shows that DFPS, on September 6, 2007, drafted
an “Unopposed Motion for Continuance,” which was then offered by Valencia’s
trial counsel to bench warrant Valencia out of jail.  
 
Second, even if Valencia was
out of jail for the “full year,” the record is silent as to any of Valencia’s
actions or omissions in regard to the child prior to January 2008. In her brief
testimony, Washington stated that Valencia, “since” January 2008, when
“he offered to take a paternity test,” which later revealed that he is the father
of the child, had not “contact[ed]” DFPS or attempted “to check” on the
child.  The remainder of the reporter’s
record does not address any acts or omissions of Valencia in regard to the
child from March 2007 to January 2008.  
 
More importantly, DFPS simply
did not present any evidence that Valencia “never” cared for the child or
failed to act regarding child support or the provision of food, clothing,
shelter, or care during the pendency of the case. 
 
Third, contrary to the majority’s
assertions, the 111-page clerk’s record, consisting of the usual pleadings,
orders, and docket sheets, contains no evidence regarding any act or omission
of Valencia in regard to the child. 
Heiskill’s affidavit testimony regarding why the child was taken from
the mother and placed into DFPS’s care mentions Valencia only to say that he
was in jail pending trial on the robbery case and could not be interviewed
because he was in quarantine.  And, as
discussed above, a family service plan was filed with the trial court, but the
record includes no progress reports or any information regarding Valencia’s
compliance or failure to comply with the plan. 

 
In sum, the majority essentially
asserts that the trial court could have inferred that Valencia had engaged in
conduct that actually endangered the child from Washington’s answer to these
two questions (1) “And has he made any attempts to check on the welfare of the
child?” Answer: “No” and (2) “Based on over 10 years of repeated criminal
history including assault of the mother, are you asking that Joe Valencia’s
rights be terminated and he has engaged in conduct that endangers the physical
and emotional well‑being of the child?” Answer: “Yes.”  This does not constitute clear and convincing
evidence that Valencia had actually endangered the child.
 
As noted above, to “infer” a
fact, one “must be able to deduce that fact as a logical consequence of other
proven facts.”  Marshall Field Stores,
Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993,
writ dism’d w.o.j.).  Stated another way,
to be legitimate or permissible, an inference must be deduced as a logical
consequence of the facts presented in evidence, and there must be a logical and
rational connection between the facts in evidence and the fact to be
inferred.  United States v. Michelena‑Orovio,
702 F.2d 496, 504 (5th Cir.), aff’d on reh’g, 719 F.2d 738 (5th Cir.1983)
(en banc).  Even if we accord the sparse
record with the meaning gleaned by the majority, Washington’s two answers, unsupported
by any other evidence in the record, did not give the trial court, as the fact
finder, a basis from which it could have reasonably inferred and formed a firm
belief or conviction that Valencia had actually “endangered” the child. 
 


[30]
          Contrary
to the assertion of the majority, the panel does not “excuse” Valencia’s
“abandonment” of his child.  Texas Family
Code section 161.001(1)(N) provides for termination of parental rights if a
parent “constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of [DFPS] . . . for not less than
six months, and . . . the department . . . has made reasonable efforts to
return the child to the parent; . . . the parent has not regularly visited or
maintained significant contact with the child; and . . . the parent has
demonstrated an inability to provide the child with a safe environment[.]”  Tex.
Fam. Code. Ann. §
161.001(1)(N) (Vernon Supp. 2009).  As
revealed in the trial transcript, DFPS did not even ask the trial court to
consider “abandonment” as a ground for terminating Valencia’s parental rights,
and the trial court made no such finding.


[31]           Originalism
at 26.


[32]           Dörner at 10.  


