Constitutional problem with Family Code § 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 here, here, here, 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 ...
Texas Family Code § 263.405 requires parents whose rights are terminated in a DFPS proceeding to file a list of appellate points within 15 days after the order of termination. For indigent parents, that's a problem. It means that they must designate their grounds for appeal before they are found indigent by the court, and hence, before they get a free copy of the trial court record. By statute, the indigency hearing takes place 30 days after the order of termination. At that time, the trial court considers the parent's claim of indigency, and also considers whether the list of appellate points is "non-frivolous." The parent only gets a free copy of the record if they are indigent and their appellate issues are "non-frivolous."
In these companion cases, indigent parents alleged that sequence is unconstitutional. How can they know what to appeal without the record? Especially if the appeal is taken over by a new attorney who wasn't present at trial.
They may have a point. In the words of the Tyler court:
"[A]n indigent parent cannot obtain a free record until the trial court finds her appeal is not frivolous, a finding made after reviewing her points for appeal, which require assessment of the record to formulate. ... It appears that application of the statute ordinarily creates such a conundrum ...." [emphasis added]
That language notwithstanding, the Tyler court held that these appeals presented hypothetical questions. The parents here didn't show harm because (even after they got and reviewed the record) they didn't show that there were points to be found in the record that were left off of their lists. Under the doctrine of ripeness, courts are in the business of resolving actual disputes, not imaginary ones. Since these parents couldn't show how they'd been harmed, there wasn't an actual dispute for the Tyler court to resolve. The appeals were dismissed without expressly deciding the constitutional issue.
FLDS implications: It's pretty easy to see a day coming when a mother in an FLDS case asserts indigency and appeals the termination of her parental rights. The FLDS cases are enough of a challenge on their own without Family Code § 263.405 coming into play. Perhaps that's why the Supreme Court of Texas recently requested full briefing in two parental termination cases -- better to grab this bull by the horns now than to let it become an issue in the FLDS cases. It may be too late to head this off. But it's worth a try. If I'm guessing right about this, expect quick action on the two cases below. Keep in mind that the same appellate attorneys who are representing the CPS arm of DFPS in the mandamus over Judge Walther's decision are working on these appeals as well.
In one, the Eastland Court of Appeals had issued a decision enforcing Family Code § 263.405. The parents in that case didn't file the required statement of appellate issues. So the Eastland court denied their appeal. The docket before the Texas Supreme Court is here.
In addition, the Texas Supreme Court requested full briefing on an appeal of a Tyler decision. In July of 2007, the Tyler court decided In the interest of BG, et al. It was a 2006 case out of Angelina County being brought by a parent whose rights had been terminated in a DFPS proceeding. The trial court denied the parent a free record. It's unclear whether the trial court decided that the parent was not indigent, or whether the trial court decided that the parent was bringing a frivolous appeal. Either way, the parent complains that the denial of a free record violates his constitutional rights. Apparently, BG's constitutional claim is more of a direct challenge to the trial court's decision on indigency/frivolousness than it is a challenge to the sequence in the Family Code. Be that as it may, BG did not urge that constitutional claim at the indigency/frivolousness hearing. So the Tyler court ruled that the complaint had been waived. The docket before the Texas Supreme Court is here.
So here we are in 2008, with BG and BG's siblings still in limbo as their father appeals the 2006 termination of his parental rights.
