
In The


Court of Appeals


Ninth District of Texas at Beaumont


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NO. 09-01-037 CV

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IN THE INTEREST OF M.S., E.S., D.S., S.S., 

AND N.S., MINOR CHILDREN




On Appeal from the 317th District Court
Jefferson County, Texas

Trial Cause No. C-152,901-A




OPINION
	Shana Strickland appeals the termination of her parental relationship with her five
children, M.S., E.S., D.S., S.S., and N.S.  Four issues are presented in her brief.
	Issue one contends, "The Trial Court erred by admitting into evidence 'Temporary
Orders Following Adversarial Hearing' and a 'Permanency Hearing Order' because the
findings in the Orders amounted to testimony by the Trial Judge in violation of Rule 605
of the Texas Rules of Evidence."  When the Department of Protective and Regulatory
Services ("CPS") offered the temporary order, Strickland's counsel stated, "Note my
proforma objection as to not the best interest, Your Honor."  When the permanency
hearing order was offered, counsel stated, "Same objection."  The trial court apparently
understood the objections to be "best evidence" objections addressing authentication of the
documents. See Tex. R. Evid. 1002.  Strickland does not challenge authentication on
appeal.  No other specific ground of objection was raised, and no other specific ground is
apparent from the context.  Since she did not preserve error, we shall address the
admission of the documents only to the extent that the Rules of Evidence exempt
preservation of error.  See Tex. R. Evid. 103; Tex. R. App. P. 33.1 (a).   
	"The judge presiding at the trial may not testify in that trial as a witness.  No
objection need be made in order to preserve the point."  Tex. R. Evid. 605.  In this case,
however, the judge did not testify as a witness.  The evidence in question is comprised of
two documents, not testimony by the judge, who remained on the bench at all times and
stayed out of the witness box.   
	Strickland cites In the Interest of T.T., 39 S.W.3d 355 (Tex. App.--Houston [1st
Dist.] 2001, no pet.), as support for her argument that admission of a court order violates
Rule 605.  T.T. held that a trial judge's temporary order was simultaneously a statement
not made while testifying and testimony by the presiding judge.  Id. at 359 (citing Tex. R.
Evid. 802; 605).  The court resolved this apparent oxymoron by treating the order as the
functional equivalent of testimony.  Id.  A few cases involving the federal rule have
addressed Rule 605 in situations that did not involve the presiding judge actually testifying
as a witness in open court.  Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d
593, 597-98 (5th Cir. 1977), noted that Rule 605 concerns the disqualification of the judge
himself, rather than his law clerk, but held that the trial court abused its discretion in
denying a motion to disqualify the clerk as a witness after the clerk examined the scene of
the accident in controversy.  And Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397,
1400 (5th Cir. 1986), which held that the trial court did not abuse its discretion in
excluding a pre-trial order denying summary judgment that was nullified by a later
granting of the motion for summary judgment, mentioned in dicta that the offering party's
position "would seem at odds with Fed. R. Evid. 605." 
	However, the Texas Court of Criminal Appeals has strictly construed Rule 605. 
In holding that the rule did not encompass future proceedings over which the judge was
not presently presiding, it stated, "The phrase 'the judge presiding at the trial may not
testify in that trial' means that the judge who is presiding over a proceeding may not 'step
down from the bench' and become a witness in the very same proceeding over which he
is currently presiding."  Hensarling v. State, 829 S.W.2d 168, 170 (Tex. Crim. App.
1992).  The Court of Criminal Appeals has also held, in a case where the judge contacted
the jurors to inform them that the defendant had escaped from custody, that a statement by
the judge in his official capacity is not "testimony."  Hammond v. State, 799 S.W.2d 741,
746-47 (Tex. Crim. App. 1990).  
	The court in T.T. reasoned that the order, which included a finding that the
respondent had endangered the children, amounted to an improper comment on the weight
of the evidence.  39 S.W.3d at 359.  That conclusion may well have been warranted under
the circumstances present in that case.  It seems to us, however, that the problem should
be addressed under Texas Rule of Evidence 403, not Rule 605.  See Tex. R. Evid. 403
("Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. . . .").  Had Strickland objected to the
admission of the court's orders under Rule 403, CPS would likely have argued that it
needed the documents in order to prove its allegations that Strickland failed to comply with
the provisions of a court order that specifically established the actions necessary to obtain
return of the children who have been in the managing conservatorship of CPS for not less
than nine months as a result of the children's removal under Chapter 262.  See Tex. Fam.
Code. Ann. § 161.001(1)(O) (Vernon Supp. 2002).  That particular Family Code section
was apparently not at issue in T.T., which might explain why the court was willing to
apply Rule 605.  Under the facts of our case, we hold that the documents in question are
not testimony by the trial judge prohibited by Texas Rule of Evidence 605.  Issue one is
overruled.
	Issue two urges, "The Trial Court erred by admitting into evidence a 'Memorandum
of Agreement' because the findings in the Orders amounted to testimony by the Trial Judge
in violation of Rules 605 and 803 of the Texas Rules of Evidence, and the confidentiality
statutes under the Texas Practice And (sic) Remedies Code."  Strickland's Rule 605
argument fails for precisely the same reason as discussed in our consideration of her first
issue, and we shall not repeat that analysis here.  However, we must address the matters
raised by counsel's objection to the memorandum, which were, "Hearsay, confidentiality,
and a part of negotiations."  The trial court sustained those objections.  Counsel for CPS
then offered the document, which had been adopted as a Rule 11 agreement, "as a court
order."  See Tex. R. Civ. P. 11; Tex. R. Evid. 803(8).  The Court then modified its
ruling, stating, "I would sustain your objection only as to any discussion by this witness
of anything that occurred in the mediation; however, as to the document itself, I will
overrule your objection; and I admit it." 
	The "Memorandum of Agreement" set forth the acts that Strickland would
undertake; CPS agreed to return the children to Strickland if she complied with the
agreement.  That agreement is not hearsay.  First, the memorandum was not offered for
the truth of matters stated therein, but for the fact that the agreement was made.  See Tex.
R. Evid. 801.  To the extent that it could be argued to fit within Rule 801(d), a statement
by Strickland contained in the agreement would not be hearsay because it was an admission
by the party opponent under Rule 801(e).  See Tex. R. Evid. 801.  To the extent that the
memorandum, which was adopted by the trial court as an order, could be argued to include
statements of belief by the trial court or any of the parties to the agreement, it would be
admissible as a public record, and as a statement against civil interest.  See Tex. R. Evid.
803(8), (24).  
	Strickland cites T.T. as authority for the proposition that the agreement was
inadmissible under the Texas Civil Practice and Remedies Code.  T.T., 39 S.W.3d at 360. 
In T.T., the mediator's report, which was entered as a Rule 11 agreement pursuant to
mediation, was attached as an exhibit to the judge's temporary order.  Id.  As in T.T.,
Strickland and CPS agreed that the memorandum would operate as a fully enforceable Rule
11 agreement.  See Tex. R. Civ. P. 11.  T.T. held that, although the parties waived
confidentiality under Rule 11, they did not waive the right that the attached mediator's
report not be used as evidence against them in a judicial proceeding.  39 S.W.3d at 360; 
see Tex. Civ. Prac. & Rem. Code Ann. § 154.073(a) (Vernon Supp. 2002).  Here, the
evidence is neither a "communication . . . made by a participant in an alternative dispute
resolution procedure" nor a "record made at a dispute resolution procedure"; rather, it is
a written agreement entered into the court record without any attempt to maintain its
confidential nature before its entry.  "If the parties reach a settlement and execute a written
agreement disposing of the dispute, the agreement is enforceable in the same manner as
any other written contract."  Tex. Civ. Prac. & Rem. Code Ann. § 154.071 (Vernon
1997).  The document became a public record not subject to any restrictions under the
Civil Practice and Remedies Code.  Issue two is overruled.  
	Issue three urges, "The evidence was legally sufficient, or alternatively, factually
sufficient to support the jury verdict that it was in the children's best interest to terminate
the mother's parental rights and the finding of a statutory factor under Tex. Fam. Code §
161.001(1)."  We understand Strickland's argument to challenge the legal and factual
sufficiency of the evidence to support the verdict.  Strickland admits that she did not
preserve error, but argues that the legal and factual sufficiency of the evidence to support
the jury's verdict may be challenged for the first time on appeal.  The Courts of Appeals
are split on this issue.  The First, Second, and Thirteenth Courts of Appeals have held that
a sufficiency challenge must be preserved in a termination of parental rights case.  In the
Interest of G.C., No. 02-99-00003 CV, 2002 WL 5693 (Tex. App.--Fort Worth, Jan. 3,
2002, no pet. h.); In the Interest of I.V., 61 S.W.3d 789 (Tex. App.--Corpus Christi 2001,
no pet.); In the Interest of J.M.S., 43 S.W.3d 60 (Tex. App.--Houston [1st Dist.] 2001,
no pet.).  The Tenth Court of Appeals held that the core issues of predicate for termination
and best interest of the child need not be preserved in order to be challenged on appellate
review.  In the Interest of A.P., 42 S.W.3d 248, 254-61 (Tex. App.--Waco 2001, no pet.). 
	Although the parent's liberty interest in a termination proceeding is similar to the
accused's liberty interest in a criminal proceeding, different procedural rules apply to the
two kinds of cases.  A legal sufficiency challenge in a civil proceeding may be preserved
through a motion for instructed verdict, an objection to the submission of a jury question,
a motion for judgment notwithstanding the verdict, a motion to disregard the jury's answer
to a vital fact issue, or a motion for new trial.  Cecil v. Smith, 804 S.W.2d 509, 510-11
(Tex. 1991).  A claim regarding sufficiency of the evidence in a criminal case need not be
preserved for review at the trial level and is not waived by the failure to do so.  Rankin v.
State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001).  In a civil case, a motion for new trial
is a prerequisite to an appellate challenge to the factual sufficiency of the evidence to
support a jury finding.  Tex. R. Civ. P. 324(b)(2).  By contrast, in a criminal case, a
motion for new trial is a prerequisite only if necessary to adduce facts not in evidence. 
Tex. R. App. P. 21.2.  The question is whether the procedure for preserving error that
applies in civil cases deprives a parent of due process.  
	In  A.P., the court reasoned, "To terminate parental rights when there is insufficient
evidence only because the complaint was not preserved does not adhere to Fourteenth
Amendment procedural due process."  A.P., 42 S.W.3d at 255 (citing Santosky v. Kramer,
455 U.S. 745, 102 S.Ct.1388, 1394, 71 L.Ed.2d 599 (1982).  Santosky, which concerned
a standard of proof for termination proceedings rather than the procedure for preserving
error, recognized three distinct factors to be balanced in a termination proceeding:  the
private interests affected, the risk of error created by the State's chosen procedure, and the
countervailing governmental interest supporting the use of the challenged procedure. 
Santosky, 455 U.S. at 754, 71 L.Ed.2d at 607.  The standard of proof in civil cases
involving money can be less stringent than cases involving the deprivation of a liberty
interest in one's children or oneself.  Id., 455 U.S. at 755-56; 71 L.Ed.2d at 607-08.  "In
parental termination proceedings, the private interest affected is commanding; the risk of
error from using a preponderance standard is substantial; and the countervailing
governmental interest favoring that standard is comparatively slight."  Id., 455 U.S. at
758; 71 L.Ed.2d at 609.  The Texas procedure for preserving error in civil cases, on the
other hand, bears little risk of error.  The aggrieved party may obtain relief merely by
filing  a motion, even after the trial concludes.  The State's interest in having rules
requiring presentation of such a sufficiency challenge in the trial court is greater than its
interest in a particular burden of proof.  We are not convinced that the rules of procedure
for preserving error in civil cases violate a parent's Fourteenth Amendment due process
rights.  Accordingly, we join the First, Second, and Thirteenth Courts of Appeals in
holding that in a termination of parental rights case a sufficiency challenge must be
preserved at the trial level.  Issue three is overruled.
	Issue four contends, "Appellant was deprived of effective assistance of counsel by
the failure of her trial counsel to preserve a record of the voir dire and jury selection;
preserve a record of closing arguments and the charge; failure to inform Appellant of her
Appeal rights; failure to pursue a post trial motions, including an appeal in violation of the
Sixth amendment (sic) to the United States Constitution, and Article 1, Section 10 of the
Texas Constitution."  
	First, we must recall that two of the three constitutional provisions upon which
Strickland relies are by their express terms limited to criminal proceedings.  See U.S.
Const. amend. VI; Tex. Const. art. I, § 10; compare U.S. Const. amend. XIV. 
Second, if the standard of review for criminal cases applied, Strickland could not meet
either prong of the test applicable to effective assistance in criminal cases because the
record is silent both as the reasons for counsel's actions and what would have been shown
by the facts not adduced in the record.  See Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  
	Strickland recognizes that we have previously addressed and rejected her argument
that she can bring a claim of ineffective assistance of counsel based upon the right to
counsel for an indigent parent granted by Section 107.013 of the Texas Family Code.  In
the Interest of B.B., 971 S.W.2d 160, 172 (Tex. App.--Beaumont 1998, pet. denied).  The
Second, Third, Fifth, Eleventh, and Twelfth Courts of Appeals have likewise rejected
Strickland's arguments.  See In the Interest of A.R.R., 61 S.W.3d 691 (Tex. App.--Fort
Worth 2001, pet. filed); Arteaga v. Tex. Dep't of Protective and Regulatory Servs., 924
S.W.2d 756, 762 (Tex. App.--Austin 1996, writ denied); In the Interest of J.F., 888
S.W.2d 140, 143 (Tex. App.--Tyler 1994, no writ); Posner v. Dallas County Child
Welfare, 784 S.W.2d 585, 588 (Tex. App.--Eastland 1990, writ denied); Howell v. Dallas
County Child Welfare Unit, 710 S.W.2d 729, 734-35 (Tex. App.--Dallas 1986, writ ref'd
n.r.e.).  The appellant relies upon opinions from the First and Tenth Courts of Appeals,
which hold that the statutory grant of counsel for indigent parents conferred a right to a
reversal of the termination decree for ineffective assistance of counsel commensurate with
the Sixth Amendment right to effective counsel in criminal cases.  See In the Interest of
A.V., 57 S.W.3d 51, 57 (Tex. App.--Waco 2001, no pet.); In the Interest of B.L.D., 56
S.W.3d 203, 211-12 (Tex. App.--Waco 2001, no pet.); In the Interest of J.M.S., 43
S.W.3d 60, 63 (Tex. App.--Houston [1st Dist.] 2001, no pet.).  These opinions attempt
to "harmonize" civil and criminal jurisprudence.  Id.  These opinions issued after Interest
of B.B., but before the Court of Criminal Appeals decided Ex parte Graves, No. 73,297,
2002 WL 4528 (Tex. Crim. App. Jan. 2, 2002).  Graves is a death penalty case in which
the Court rejected the applicant's argument that the statutory grant of a right to "competent
counsel" in Article 11.071 of the Texas Code of Criminal Procedure meant that counsel's
performance must be constitutionally effective.  Id.  Issue four is overruled.  The judgment
of the trial court is affirmed.
	AFFIRMED.
 
							  ______________________________
								RONALD L. WALKER
									Chief Justice

Submitted on February 25, 2002
Opinion Delivered April 11, 2002
Publish

Before Walker, C.J., Burgess and Gaultney, JJ.


CONCURRING OPINION

	I concur in the result.  However, I differ with the majority on two issues; the
requirement for the preservation of error regarding the sufficiency of the evidence (issue
three) and the right to effective assistance of counsel (issue four).
Preservation of Error

	The majority follows the First, Second and Thirteenth Courts of Appeals and holds
that legal and factual sufficiency may not be raised unless properly preserved.  I would
follow the Tenth Court of Appeals' rationale in In the Interest of A.P., 42 S.W.3d 248,
254-56 (Tex. App.--Waco 2001, pet. filed); see also In the Interest of A.V., 57 S.W.3d
51, 58 (Tex. App.--Waco 2001, pet. filed); In the Interest of S.R.M., 601 S.W.2d 766,
769-70 (Tex. Civ. App.--Amarillo 1980, no writ). 
Sufficiency of the Evidence

	The jury was instructed that for appellant's parental rights to be terminated, they
must find by clear and convincing evidence that appellant:
	1.  knowingly placed or knowingly allowed [the children] to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child(ren); [§
161.001(1)(D), Tex. Fam. Code], or
	2.  engaged in conduct or knowingly placed [the children] with persons who
engaged in conduct which endangers the physical or emotional well-being of the child(ren);
[§ 161.001(1)(E), Tex. Fam. Code], or
	3.  constructively abandoned [the children] who has been in the permanent or
temporary managing conservatorship of the Department of Protective and Regulatory
Services or an authorized agency for not less than six months and (1) the Department or
authorized agency has made reasonable efforts to return [the children] to the parent; (2)
the parent has not regularly visited or maintained significant contact with [the children];
and (3) the parent has demonstrated an inability to provide [the children] with a safe
environment; [§ 161.001(1)(N), Tex. Fam. Code], or
	4.  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 children] who [has/have]
been in the permanent or temporary managing conservatorship of the Department of
Protective and Regulatory Services for not less than nine months as a result of the
child(ren)'s removal from the parent under Chapter 262 for the abuse or neglect of the
child(ren), [§ 161.001(1)(O)Tex. Fam. Code], or
	5.  refused to submit to a reasonable and lawful order of a court under Subchapter
D, Chapter 261; (§ 161.001(I), Tex. Fam. Code), and

	In addition to any one of the above grounds, for parental rights to be terminated in
this case it must be proved by clear and convincing evidence that termination of parental
rights would be in the best interest of the children.

	Utilizing the appropriate standards for both legal and factual sufficiency, the record
contains ample evidence to sustain at least one, if not all, of the grounds presented to the
jury. (1)  Therefore, I concur in overruling issue three.
Right to Effective Assistance of Counsel

	As noted in the majority opinion, this court in In the Interest of B.B., 971 S.W.2d
160, 172 (Tex. App.--Beaumont 1998, pet. denied), refused to extend the right to effective
assistance of counsel to a parent in a termination of parental rights' proceeding.  Likewise,
the Fort Worth, Austin, Dallas, Eastland and Tyler Courts of Appeals have also refused. 
On the other hand, the Houston (1st) and Waco Courts of Appeals have held that parents
have a procedural due-process right to effective assistance of counsel.  Two other courts,
Corpus Christi and Amarillo, have reviewed the actions of counsel without deciding the
issue of whether a parent is entitled to receive effective assistance of counsel at a
termination hearing.  See In re I.V., 61 S.W.3d 789, 799 (Tex. App.--Corpus Christi
2001, no pet.); In the Interest of AWT, 61 S.W.3d 87, 89-90 (Tex. App.--Amarillo 2001,
no pet.).
	After reviewing the issue under the Fourteenth Amendment analysis, I am
convinced the Waco and Houston (1st) Courts have the better reasoning.  Therefore, I
would overrule In the Interest of B.B., 971 S.W.2d at 172, and consider the issue.  In the
alternative, we should follow the "hedge" of the Corpus Christi and Amarillo courts and
consider the issue.
Counsel's Performance

	Appellant alleges her counsel was deficient in several instances.  Utilizing the
appropriate standard of review, and as the majority notes, appellant can not meet the test
to show ineffective assistance of counsel.  Therefore, I concur in the overruling of issue
four and the judgment.



                                                                                   DON BURGESS

                                                                                         Justice
Concurrence Delivered
April 11, 2002
Publish
1. This being a concurrence, a recitation of the evidence is not necessary. 
