Opinion
No. 02-04-349-CV
Delivered: July 21, 2005.
Appeal from the 367th District Court of Denton County.
PANEL F: GARDNER, WALKER, and McCOY, JJ.
OPINION
I. Introduction
In this appeal, we are asked to decide whether family code section 263.405 violates the equal protection and due process guarantees of the United States and Texas constitutions by denying an indigent appellant the right to a free record of the underlying parental rights termination trial. We answer in the negative and affirm the judgment of the trial court.
II. Factual and procedural background
This appeal arises from the termination of Appellant's parental rights over her minor child, K.D. The department of protective and regulatory services instituted termination proceedings. After a jury trial at which Appellant was represented by court-appointed counsel, the trial court signed an order terminating Appellant's parental rights.
The trial court appointed new counsel to represent Appellant with regard to her post-trial motions and appeal. Appellant then filed her statement of points on appeal with the trial court. Rather than state specific points, Appellant complained that her appellate counsel could not definitively state the points on appeal until the reporter's record of the trial was prepared. Appellant also stated that "sufficiency of the evidence will be challenged for the statutory grounds used to terminate and `best interest' grounds. Ineffective assistance of counsel may be alleged. Any other reasonable appealable issue will be brought to the attention of the court of appeals." Appellant then filed a notice of appeal, a motion for new trial, an affidavit of inability to pay costs, and motions for a free clerk's record and a free reporter's record on appeal.
The trial court conducted an evidentiary hearing under family code section 263.405(d). See Tex. Fam. Code Ann. § 263.405(d) (Vernon 2002). The trial court denied the motion for new trial and found that Appellant's appeal was frivolous under section 263.405 of the family code and section 13.003 of the civil practice and remedies code. Appellant then filed an amended notice of appeal to include the trial court's finding that her appeal was frivolous. The court reporter and court clerk filed records of the section 263.405 hearing with this court without advance payment from Appellant.
III. Discussion
Appellant raises three points on appeal. Her first two points challenge the constitutionality of family code section 263.405. Her third point challenges the trial court's finding that Appellant's appeal is frivolous.
A. Constitutional issues
In her first two points, Appellant argues that family code section 263.405 violates the constitutions of the United States and Texas. The gist of Appellant's argument is that section 263.405 denies an indigent appellant the right to a meaningful review of the trial court's determination that her appeal is frivolous because the frivolousness finding also denies the indigent appellant the right to a free record of the underlying trial. Without a record of the trial, claims Appellant, appellate review is meaningless, if not impossible. But a non-indigent party, argues Appellant, can obtain meaningful review of the trial court's frivolousness finding by paying for the record and filing it with the court of appeals. This disparity between an indigent party and a non-indigent party, says Appellant, violates the indigent party's right to equal protection. We disagree.
We note that Appellant's constitutional complaints are vague, and her brief does not cite any particular provisions of either the federal or Texas constitution. We infer that Appellant's argument is based on her constitutional due process and equal protection guarantees.
1. Standard of review for constitutional issues
If possible, we interpret a statute in a manner that renders it constitutional. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000); Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998). A party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute always operates unconstitutionally. Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999). In other words, a challenger must establish that no set of circumstances exists under which the statute would be valid. Id. In reviewing a facial challenge to a statute's constitutionality, we consider the statute as written, rather than as it operates in practice. See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626-27 (Tex. 1996).
2. Analysis
We turn first to the statute in question, family code section 263.405, which states in relevant part:
(d) The trial court shall hold a hearing not later than the 30th day after the date the final order [terminating parental rights] is signed to determine whether:
(1) a new trial should be granted;
(2) a party's claim of indigence, if any, should be sustained; and
(3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code.
. . . .
(f) The appellate record must be filed in the appellate court not later than the 60th day after the date the final order is signed by the trial judge, unless the trial court, after a hearing, grants a new trial or denies a request for a trial court record at no cost.
(g) The appellant may appeal the court's order denying the appellant's claim of indigence or the court's finding that the appeal is frivolous by filing with the appellate court the reporter's record and clerk's record of the hearing held under this section, both of which shall be provided without advance payment, not later than the 10th day after the court makes the decision. The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.
Tex. Fam. Code Ann. § 263.405 (Vernon 2002) (emphasis added). "A plain reading of section 263.405 as a whole demonstrates that the legislature intended that a parent whose parental rights have been terminated receive either: (1) a normal accelerated appeal . . . after a finding by the trial court that the appeal is not frivolous; or (2) an appeal from the trial court's determination that the appeal is frivolous." In re S.J.G., 124 S.W.3d 237, 243 (Tex.App.-Fort Worth 2003, pet. denied).
While subsection (f) describes the effect of a trial court's denial of a request for a free record, section 263.405 does not set out the test for determining whether a party is entitled to a free record. See Tex. Fam. Code Ann. § 263.405(f). For that test, we turn to section 13.003 of the civil practice and remedies code, which is captioned "Free Transcript of Statement of Facts on Appeal" and states in part:
(a) Subject to Subsection (c), a court reporter shall provide without cost a statement of facts and a clerk of a court shall prepare a transcript for appealing a judgment from the court only if:
(1) an affidavit of inability to pay the cost of the appeal has been filed under the Texas Rules of Appellate Procedure; and
(2) the trial judge finds:
(A) the appeal is not frivolous; and
(B) the statement of facts and the clerk's transcript is needed to decide the issue presented by the appeal.
Tex. Civ. Prac. Rem. Code Ann. § 13.003 (Vernon 2002).
Thus, a trial court's determination that an appeal is frivolous has two effects. First, it limits the scope of appellate review to the trial court's determination that the appeal is frivolous under family code section 263.405(g). This first effect obtains regardless of whether the appellant is indigent. Second, it denies an indigent appellant the right to a free clerk's record and reporter's record of the underlying trial under civil practice and remedies code section 13.003(a)(2)(A). This second effect, of course, obtains only where the appellant is indigent.
It is the disparate impact of this second effect that gives rise to Appellant's equal protection argument. But the second effect is irrelevant because of the first. Once the trial court determines that the appeal is frivolous, the scope of appellate review is limited to the trial court's determination that the appeal is frivolous. Tex. Fam. Code Ann. § 263.405(g); see also In re S.J.G., 124 S.W.3d at 243. And section 263.405(g) mandates that the reporter's record and the clerk's record of the frivolousness hearing "shall be provided without advance payment" to the appellant. Tex. Fam. Code Ann. § 263.405(g). Nothing in section 263.405 suggests that a non-indigent appellant has the right to file any record with an appellate court other than the reporter's record and the clerk's record of the frivolousness hearing, and nothing suggests that an appellate court may consider anything other than those limited records in its review of the trial court's frivolousness finding. Therefore, an appellant is guaranteed the same limited review of a frivolousness finding regardless of whether the appellant is indigent. Because both indigent and non-indigent appellants have the equal right and opportunity to appeal a frivolousness finding, we hold that section 263.405 does not violate Appellant's equal protection right.
We turn now to Appellant's due process complaint. An appellant who seeks review of a trial court's determination that an appeal is frivolous is "entitled to a `record of sufficient completeness to enable [her] to attempt to make a showing [of reversible error]' as a matter of the due process and equal protection guarantees of the United States Constitution." De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex.App.-San Antonio 1998, no pet.) (quoting Coppedge v. United States, 369 U.S. 438, 446-48, 82 S. Ct. 917, 921-23 (1962)). "As the Court made clear in Coppedge, while the federal Constitution does not guarantee an appellant a free record to pursue a frivolous appeal, it does require that she receive a sufficient record, without charge, to establish the trial court erred in finding that her appeal is frivolous." Id. The De La Vega court held that the record required by Coppedge was a record of the hearing at which the trial court determined that the appeal was frivolous. Id.
The process identified by Coppedge and De La Vega as the minimum required by the Constitution is precisely the process codified in section 263.405(g). Section 263.405(g) guarantees an appellant the right to a record of the hearing at which the trial court determined that the appeal is frivolous. See Tex. Fam. Code Ann. § 263.405(g). That is exactly what the due process guarantee of the Constitution requires. See Coppedge, 369 U.S. at 446-48, 82 S. Ct. at 921-23; De La Vega, 974 S.W.2d at 154.
Appellant relies on M.L.B. v. S.L.J., 519 U.S. 102, 117 S. Ct. 555 (1996) for the proposition that a state may not deny a parent, because of her poverty, appellate review of the evidence on which the trial court found her unfit to be a parent. M.L.B., which involved Mississippi law, is distinguishable from our case. Mississippi law, unlike Texas law, did not allow in forma pauperis appeals in civil cases. When the parent in M.L.B. failed to prepay the costs of appeal, the appellate court dismissed her appeal. The Supreme Court reversed and held that "Mississippi may not withhold from M.L.B. a `record of sufficient completeness' to permit proper [appellate] consideration of [her] claims." Id., 519 U.S. at 128, 117 S. Ct. at 570 (quoting Mayer v. Chicago, 404 U.S. 189, 198, 92 S. Ct. 410, 416 (1971)). As we noted above, a "record of sufficient completeness" in the frivolous appeal context means a record of the hearing that led to the determination of frivolousness. See De La Vega, 974 S.W.2d at 154. Section 263.405(g) provides just that, and without prepayment. Tex. Fam. Code Ann. § 263.405(g). The differences between Mississippi and Texas law make M.L.B. inapposite to the constitutionality of section 263.405.
Finally, Appellant asks rhetorically how it can be that a parent facing state-initiated termination under family code chapter 263 is limited to review of the record of the frivolousness hearing, while a parent facing termination initiated by a private party has the right to a full appeal under family code section 109.002, which allows appeal from a final termination order "as in civil cases generally." See Tex. Fam. Code Ann. § 109.002 (Vernon 2002). Appellant's question is a non sequitur; the premise underlying the question is faulty. Suppose a parent seeking to appeal a private termination seeks a free record under civil practice and remedies code section 13.003. If the trial court determines that the appeal is frivolous under section 13.003(a)(2)(A), then the parent is not entitled to a free record. See Tex. Civ. Prac. Rem. Code Ann. § 13.003(a). Under De La Vega, the parent would be entitled to a free record of the frivolousness hearing so that the frivolousness finding could be reviewed by the appellate court. See De La Vega, 974 S.W.2d at 154. In other words, the indigent parent in a private termination whose appeal is deemed frivolous has precisely the same right to a free record of the frivolousness hearing given by section 263.405 to an indigent parent in a state termination whose appeal is deemed frivolous. Thus, the disparity between the two proceedings posited by Appellant's rhetorical question does not exist.
In S.J.G., we noted that "[s]ection 263.405's objectives are to address post-judgment delays, correct provisional inconsistencies, and provide a mechanism through which a party can compel the trial court to timely set the case for final trial." S.J.G., 124 S.W.3d at 242. "[S]ection 263.405 reduces post-judgment delays in parental-termination appeals by authorizing the trial court to weed out frivolous parental-termination appeals. [Citation omitted] The parent may then appeal the frivolousness determination instead of the underlying case." Id. at 243 (citing Tex. Fam. Code Ann. § 263.405(d), (g)). The limited right to appeal the frivolousness determination, coupled with the free record of the frivolousness hearing required by section 263.405(g), furthers the legislature's intent to reduce delay yet comports with the due process and equal protection guarantees recognized in Coppedge, M.L.B., and De La Vega. We therefore overrule Appellant's first and second points.
B. Review of frivolousness finding
We turn now to Appellant's third point, in which she challenges the trial court's finding that her appeal is frivolous. Appellant's challenge is vague. She argues that it is necessarily so because she was denied a free record of the underlying trial on which to base her challenge. We have already concluded that section 263.405, consistent with Appellant's constitutional rights, entitled her to a free record of the frivolousness hearing, not the underlying trial. The record of the frivolousness hearing was duly prepared and filed in this court. We will, therefore, consider Appellant's third point in the light cast by the record of the frivolousness hearing.
In determining whether an appeal is frivolous, "a judge may consider whether the appellant has presented a substantial question for appellate review." Tex. Civ. Prac. Rem. Code Ann. § 13.003(b); Tex. Fam. Code Ann. § 263.405(c)(3) (incorporating section 13.003(b) by reference). "It is well established, however, that a proceeding is `frivolous' when it `lacks an arguable basis either in law or in fact.'" De La Vega, 974 S.W.2d at 154. We review a trial court's finding of frivolousness under the abuse of discretion standard. Id.
Appellant first complains of a "significant and unconstitutional delay in the mandatory appointment of counsel for Appellant at the beginning of this process." The record contains an unsworn and undated "application for court-appointed attorney and financial affidavit." The trial court appointed trial counsel on May 13, 2004, some five months after the Department filed its original petition. But because Appellant's application for a court-appointed attorney is undated, we cannot determine whether the delay in appointing counsel was unconstitutional — indeed, we cannot determine whether there was any delay at all. Moreover, we note that Appellant originally filed the cause from which she now appeals in an attempt to terminate the parental right's of K.D.'s biological father. Appellant was represented by counsel when she filed the termination suit and for some time thereafter. The record does not reflect when Appellant's counsel withdrew. We cannot conclude that the trial court abused its discretion when it determined that Appellant's complaint about the delay in the appointment of counsel was frivolous.
Appellant next complains of ineffective assistance of counsel at trial. At the hearing on her motion for new trial, Appellant testified that she had asked her trial counsel to call four witnesses to testify on her behalf, but her trial counsel called none of them. Appellant summarized for the trial court the testimony she expected the uncalled witnesses would provide. She also testified that trial counsel failed to offer a physical exhibit and Appellant's family photographs into evidence.
To establish ineffective assistance of counsel, a party must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. In re M.S., 115 S.W.3d 534, 545 (Tex. 2003). With respect to whether counsel's performance in a particular case is deficient, a court must take into account all of the circumstances surrounding the case, and must primarily focus on whether counsel performed in a reasonably effective manner. Id. In this process, a court must give great deference to counsel's performance, indulging a strong presumption that counsel's conduct fails within the wide range of reasonable professional assistance, including the possibility that counsel's actions are strategic. Id. It is only when the conduct was so outrageous that no competent attorney would have engaged in it that the challenged conduct will constitute ineffective assistance. Id.
We have reviewed Appellant's testimony from the new trial hearing in light of the supreme court's guidelines in In re M.S. Appellant testified that trial counsel ignored her request to call the following witnesses to testify at trial: a police officer who would have testified that he declined to arrest Appellant for child abandonment; a friend who "would have testified positively in regard to [Appellant's] parenting abilities;" a psychologist who performed a psychological evaluation on Appellant; and a psychologist who performed a developmental assessment of K.D. Even assuming that her witnesses would have testified as Appellant claims, we cannot conclude that the trial court abused its discretion by determining that Appellant's claim of ineffective assistance was frivolous.
Appellant next argues that "[a]fter the record is reviewed, there may be factual and legal sufficiency issues." What those sufficiency issues might be is not apparent from the record of the frivolousness hearing. We are sensitive to Appellant's dilemma in raising sufficiency issues without benefit of a full trial record. But because Appellant is entitled only to a free record of the frivolousness hearing, it was incumbent upon her to make a record complete enough to demonstrate the existence of sufficiency issues. We note that the trial court allowed Appellant to introduce whatever evidence she wished at the hearing, to summarize the testimony of absent witnesses, and to rehash facts that were presented to the jury at trial. We also note that Appellant's trial counsel was in the courtroom at the frivolousness hearing. On the record before us, we cannot say that the trial court abused its discretion in concluding that Appellant's legal and factual sufficiency complaints are frivolous.
Next, Appellant challenges the constitutionality of the parental rights termination process as a whole. The basis of the constitutional challenge is not clear; review of counsel's argument at the frivolousness hearing does not make it any clearer. We find no abuse of discretion in the trial court's conclusion that Appellant's constitutional challenge, as presented, is frivolous.
Finally, Appellant argues that "[o]ther possible issues that might come up after review of the record are jury selection, charge error, evidentiary rulings and arguments of counsel." The record of the frivolousness hearing reflects no basis for these complaints. We repeat that it was incumbent upon Appellant to demonstrate any such errors at the frivolousness hearing. She failed to do so, and we cannot say that the trial court abused its discretion in concluding that these potential complaints are frivolous.
In summary, we find that the trial court did not abuse its discretion by concluding that Appellant's appeal is frivolous. We overrule Appellant's third issue.
IV. Conclusion
Having overruled all of Appellant's issues, we affirm the judgment of the trial court. See Tex.R.App.P. 43.2(a).