Opinion
No. 10-07-00200-CV
Concurring opinion delivered and filed June 27, 2007.
Appeal from the 82nd District Court Robertson County, Texas, Trial Court No. 05-07-17,283-CV.
CONCURRING OPINION
I concur in the Court's disposition of this appeal. However, I continue to question whether subsection 263.405(i), as applied to termination cases involving an indigent parent whose appointed appellate counsel is not the same as appointed trial counsel, passes constitutional muster because it can operate to deprive appellate review of any issues under its accelerated timetable. See In re E.A.R., 201 S.W.3d 813, 816-18 (Tex.App.-Waco 2006, no pet.) (Vance, J., concurring).
I have also remarked that parental-rights termination cases are the "death-penalty" of civil law. In re K.G.M., 171 S.W.3d 502, 506 (Tex.App.-Waco 2005, no pet.) (Vance, J., concurring). The proceedings in these cases should be strictly scrutinized, and the involuntary termination statutes are strictly construed in favor of the parent. Id. (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)).
T.F.'s two issues in her untimely statement of points are: (1) the trial court abused its discretion by failing to dismiss this case when the dismissal date passed; and (2) the trial court abused its discretion in extending the dismissal date when no evidence existed supporting a finding of extraordinary circumstances. T.F., through her appointed appellate counsel, asserts that her statement of points was untimely in part because trial counsel did not return repeated phone calls in advance of the various appellate deadlines.
This circumstance raises at least the possibility of an ineffective-assistance-of-counsel claim relating to the untimely statement of points, and at least one court has held that an ineffective-assistance-of-counsel claim need not be in a statement of points. Doe v. Brazoria County Child Prot. Serv's., — S.W.3d —, —, 2007 WL 93394, at *11 (Tex.App.-Houston [1st Dist.] Jan. 16, 2007, no pet. h.); but see In re J.F.R., 2007 WL 685640, at *2 (Tex.App.-Beaumont Mar. 8, 2007, no pet. h.) (mem. op.) (appellant must present ineffective-assistance claim in statement of points, either in a separate instrument or part of motion for new trial); In re J.H., 2007 WL 172105, *1 (Tex.App.-Tyler, Jan. 24, 2007, no pet.) (mem. op.) (same); In re A.H.L., III, 214 S.W.3d 45, 54 (Tex.App.-El Paso, Oct. 26, 2006, pet. denied) (same); In re D.A.R., 201 S.W.3d 229, 230-31 (Tex.App.-Fort Worth 2006, no pet.) (same).
Logically, an ineffective-assistance claim based on the untimeliness of the statement of points could not be required in a timely statement of points.
Recognizing that our courts of appeals are following a strict interpretation of the statute, I reluctantly concur. Cf. Pool v. Texas Dep't Fam. Prot. Serv's., — S.W.3d — — 2007 WL 624556, at *2 (Tex.App.-Houston [1st Dist.] Mar. 1, 2007, no pet. h.) (impliedly recognizing existence of ineffective-assistance claim for trial counsel's failure to file timely statement of points).