Constitutional problem with Family Code ยง 263.405?

In the interest of RDG and In the interest of TDM (Published Memos): Texas Family Code § 263.405 may be unconstitutional to the extent that it requires indigent parents whose rights have been terminated to state their grounds for appeal before they get the trial court record.  I say “may” be unconstitutional because, after the parents here got the record, they didn’t find any appellate points they had missed.  The Tyler court dismissed the appeals for that reason.  The Tyler court did not decide the constitutional question.  But the tea leaves in these companion decisions make for interesting reading.  This issue has ramifications for the FLDS proceedings.

Background: Say that a husband beats his wife and is convicted of assault.  He appeals that conviction.  While his appeal is pending, the wife is thrown in jail, and her efforts to divorce the bum are held in limbo.  Outrageous, isn’t it?  That could never happen, could it?

Well, when a parent’s rights are terminated by the Texas Department of Family and Protective Services, it is the kid who is stuck in foster care — unable to be adopted because of the chance, however remote, that a long and seemingly incomprehensible legal process will give her back to her parents.  Technically, the parent’s rights have been “terminated” at the trial level.  In reality, the parent can use the appeals process to exercise considerable control over the child.

That doesn’t sit well with the Texas Legislature.  Over the past several sessions, they’ve adopted measures to shift the balance away from the parent’s right to appeal, and towards the kid’s ability to move on.  See hereherehere, and here.  For the most part, those measures are combined in Texas Family Code § 263.405.  As always, it’s up to the courts to hash out the details of new statutes …

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