Constitutional Challenge to Termination Statute
Today, John Council of Texas Lawyer Magazine interviewed me for his Reversed and Remanded video blog. To see the video, click here: Michelle May O’Neil Interview. The topic was In re J.O.A., a case decided by the Texas Supreme Court this month. There, the Court decided that the Texas Family Code statute requiring a party intending to appeal a termination decision to file a Statement of Points within 15 days of the entry fo a termiantion order. The Statement of Points must outline each issue that the party plans to appeal.
In J.O.A. the trial court lawyer failed to file the Statement of Points and the trial judge failed to appoint an appellate lawyer in a timely manner to meet the deadline. The court of appeals held that the party had ineffective assistance of counsel. This claim means that the lawyer not only failed to perform his duty, but that the client was harmed by the failure. The court of appeals found that the trial lawyer’s failure to file the Statement of Points was harmful because the father appealing had an appellate point of error that would have been meritorious based on insufficient evidence.
The government argued that the father could not present his claim for ineffective assistance of counsel because it was not listed in a Statement of Points. The Texas Supreme Court held that the statute requiring the filing of a Statement of Points is unconstitutional to the extent it denies a party from presenting a claim for ineffective assistance of counsel.
This ruling does not mean that the requirement of filing a Statement of Points has vanished, but only serves to preserve a party’s right to complain in a limited sense about ineffective assistance of counsel where no Statement of Points was not filed. This case should serve as a huge reminder to lawyers who represent parents in termination cases that the lawyer on file has the duty to file the Statement of Points even if that lawyer isn’t going to represent the parent on appeal.
