VALENCIA v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

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Court of Appeals of Texas,Houston (1st Dist.).

Joe Lewis VALENCIA, Appellant, v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.

No. 01-08-00345-CV.

Decided: December 22, 2009

Panel consists of Justices JENNINGS, HIGLEY, and SHARP. William Michael Thursland, Houston, TX, for Appellant. Erica L. Jackson, Assistant County Attorney, Sandra D. Hachem, Senior Assistant County Attorney, Houston, TX, for Appellee.

OPINION

Appellant, Joe Lewis Valencia, challenges the trial court's termination of his parental rights to his minor child. In three issues, Valencia contends that his court-appointed attorney's performance at trial “was so patently deficient that [he] was denied any meaningful assistance of counsel altogether” and the evidence presented against him at trial, as revealed in a five and one-half page trial transcript, is legally and factually insufficient to support the trial court's findings that he endangered the child and that termination of his parental rights is in the child's best interest.1

We reverse that portion of the decree terminating the parent-child relationship between Valencia and child.

Background

Because of the paucity of information contained in the five and one-half page reporter's record of the nonjury trial, we must rely primarily upon the pleadings and clerk's record to glean the pertinent background facts.

The clerk's record contains the November 10, 2006 affidavit of Texas Department of Family and Protective Services (“DFPS”) agent C. Heiskill, who noted therein that the minor child was born on November 7, 2006, to Sandra Lynn Flores, both the mother and the child tested positive for opiates, and Flores told Heiskill that Valencia is the father of the child and he was “in jail for robbery .” After the child was removed from Flores's custody, Heiskill located Valencia in the Harris County Jail, but she could not interview him because he was in quarantine.

In its November 8, 2006 Original Petition for Protection of a Child, for Conservatorship, and for Termination in a Suit Affecting the Parent-Child Relationship, DFPS alleged that “Rene Flores” was the child's “father,” Valencia was the child's “alleged father,” and an “unknown” man was the child's alleged father. DFPS sought a determination of Valencia's parentage, and, if “reunification with [Valencia could] not be achieved,” the termination of the parent-child relationship, if any existed, between Valencia and the child. On November 16, 2006, Valencia was served with citation in the Harris County Jail, but he did not appear at the adversary hearing later that same day because he was in jail and DFPS had not obtained a bench warrant to secure his presence.

The trial court, on May 8, 2007, appointed Donald Crane as an attorney ad litem for the “unknown father” of the child. On September 6, 2007, Sandra Flores signed an affidavit of voluntary relinquishment of her parental rights with respect to the child. That same day, Crane, now also acting as Valencia's appointed trial counsel, with the help of counsel for DFPS, filed a written “Unopposed Motion For Continuance” to bench warrant Valencia to the trial court.2 On January 3, 2008, Valencia's appointed trial counsel filed an answer on behalf of Valencia, and Valencia, who appeared in court for the first time, offered to take a paternity test.

Prior to the commencement of the nonjury trial on April 9, 2008, Valencia's trial counsel, apparently attempting to make an oral motion for continuance, informed the trial court that Valencia “is out of Harris County and in county jail.” Valencia's trial counsel asked the court for “a couple of weeks,” but the trial court denied this request. DFPS then called its only witness, DFPS Caseworker F. Washington.

After Washington introduced herself and testified that DFPS's goal for the child was “unrelated adoption,” counsel for DFPS then asked how the child came into DFPS's care. Before Washington could answer, the trial court stated:

I will take judicial notice of the contents of its file, that includes the affidavit that describes the reason the child was taken into care.

Valencia's trial counsel did not object to the trial court's action.

Washington then testified that the child had been placed in “kinship placement,” which was meeting the physical and emotional needs of the child. She explained that Valencia was in jail when the “case first started,” he was personally served in November 2006, and her first contact with Valencia was in January 2008. Washington noted that Valencia “offered to take a paternity test,” the result of which revealed that he is the father of the child, and, “since then,” he had not attempted to check on the child. Without referencing a specific time or the basis of her knowledge, Washington testified that Valencia “was living with the mother of the child.”

Washington further testified that Valencia had a “criminal record,” and DFPS, without objection from trial counsel, offered into evidence “Petitioner's Exhibit No. 1,” a packet of copies, only two of which are certified,3 of criminal complaints and judgments and sentences purportedly entered against Valencia. After counsel for DFPS read into the record the titles of several criminal offenses from the exhibit,4 she conceded that the aggravated robbery case, which she had represented that Valencia had been in jail for at the time of the child's birth, had been dismissed. However, she further stated that Valencia was “in jail right now for the assault of Sandra Flores the mother․” When asked if DFPS had any other exhibit, counsel for DFPS stated, “These are photos of his assault,” but she did not mark any photographs or exhibits or offer them into evidence. Trial counsel replied, “Judge, object, goes to the criminal side.” Although the trial court overruled trial counsel's objection, only Petitioner's Exhibit No. 1 was admitted into evidence.

Regarding what was in the child's best interest, Washington testified that Valencia had not shown that he had any relatives to care for the child and had not bonded with the child. The child had been in place with the “current care givers,” who provided a very stable environment, for fourteen months, and the child had bonded with them. Washington opined that it was in the best interest of the child to stay with the care givers. She further opined that it would not be in the child's best interest to be “returned” to Valencia. When counsel for DFPS asked Washington, how would the “emotional stability” of the child be affected “based on [the fact] that he has been in and out of jail every year for ․ at least 10 years, and if he went to jail and the child was placed with him,” Valencia's trial counsel objected to the question as calling for speculation. Although the trial court did not rule on the objection, Washington did not answer. However, Counsel for DFPS then asked Washington:

Based on over 10 years of repeated criminal history including assault of the mother, are you asking that Joe Valencia's rights be terminated and he has engaged in conduct that endangers the physical and emotional well-being of the child?

Without objection from trial counsel, Washington answered, “Yes.” When asked if he had any cross-examination, trial counsel responded, “No questions, Judge.”

The trial court subsequently granted DFPS's petition and entered its Decree For Termination on the ground that Valencia had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers pursuant to § 161.001(1)(E) of the Texas Family Code.”5

As conceded by DFPS, the certified copies of documents contained in Petitioner's Exhibit No. 1 reveal that the case against Valencia for the offense of Aggravated Robbery was dismissed on March 26, 2007. Moreover, although a certified copy of a criminal information, apparently filed on March 29, 2008, accused Valencia of the misdemeanor offense of “Assault-Family Member,” nothing indicated that, as of the date that the trial court entered its decree, he had been convicted of the offense.

On April 24, 2008, trial counsel filed a Motion for New Trial and Statement of Appellate Points, a Request for Findings of Fact and Conclusions of Law, and a Notice of Appeal. The record does not contain findings of fact and conclusions of law, nor does it show that trial counsel ever filed a notice of past due findings of fact and conclusions of law. See Tex.R. Civ. P. 297. In his new trial motion, trial counsel contended that his “oral motion for continuance to allow [Valencia] to be brought over from the Harris County Jail should have been granted” as he was “within walking distance of the courtroom,” the trial “court could have ordered all parties to mediation to narrow the issues for trial,” a new trial would “not unduly burden” the trial court, a new trial was in the best interest of the child, and justice would not “properly be served” without a new trial.

In his Statement of Appellate Points, trial counsel contended that the trial court had erred in denying Valencia access to the court because, as “an inmate at the Harris County, Jail,” he was “available upon request of the court”; the evidence is legally and factually insufficient to support the trial court's finding that termination of Valencia's parental rights was in the best interest of the child; the trial of the case, in the absence of Valencia, “deprived him of his due process pursuant to the 5th and 14th Amendments to the U.S. Constitution, and Article 1, Sections 13 and 19 of the Texas Constitution” and “his right to equal protection of the laws pursuant to the 5th and 14th Amendments to the U.S. Constitution, and Article 1, Sections 3, 3a, 13, and 19 of the Texas Constitution”; and his appellate points were not frivolous because termination of Valencia's parental rights affected his “constitutionally protected fundamental right to parent.” The trial court, after a hearing held on May 6, 2008, denied Valencia's new trial motion, appointed Valencia's trial counsel as his appellate counsel, and found Valencia's appeal “frivolous.”

Appellate counsel subsequently filed in this Court his appellant's brief, in which he argued, in a single issue, that the trial court erred in “determining [Valencia's] appeal to be frivolous because Valencia's “fundamental right to parent is constitutionally protected.” Because the record was incomplete, this Court ordered the court reporter to prepare a record of the May 6, 2008 hearing. After the court reporter responded that the record of the May 6, 2008 hearing could not be located, this Court ordered the court reporter to supplement the record with all recorded testimony and evidence admitted at the April 9, 2008 nonjury trial. After allowing appellate counsel an opportunity to review the supplemented record and file an amended brief, he filed a “Waiver of Opportunity to File a Supplemental Brief.”

After reviewing the clerk's record and the five and one-half page trial transcript, this Court concluded that Valencia's appeal is not frivolous because Valencia had an arguable basis for challenging the legal and factual sufficiency of the evidence supporting the trial court's finding that Valencia had endangered the child and for challenging the effectiveness of trial counsel. This Court struck the brief of Valencia's appellate counsel, abated the appeal, and remanded the case to the trial court for the appointment of new appellate counsel. We ordered Valencia to file full briefing on the pertinent issues and, if appropriate, an issue challenging the effectiveness of trial counsel's assistance.

Constructive Denial of Counsel

In his first issue, Valencia argues that because trial counsel's performance “did not simply consist of errors, omissions or poor trial strategy” and “was so patently deficient,” Valencia “was denied any meaningful assistance of counsel altogether” and prejudice to his defense must be “presumed.” See Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984); United States v. Cronic, 466 U.S. 648, 654-55, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984).

We first note that the Texas Supreme Court has held that “an ineffective assistance of counsel claim can be raised on appeal despite the failure to include it in a statement of points.” In re J.O.A., 283 S.W.3d 336, 339 (Tex.2009). Thus, Valencia may raise this issue for the first time on appeal notwithstanding the fact that trial counsel failed to assert it in his statement of appellate points as required by statute. Id.; see Tex. Fam.Code Ann. § 263.405(i) (Vernon 2008) (“The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of points on which the party intends to appeal or in a statement combined with a motion for new trial.”).

Standard of Review

The Texas Family Code requires the appointment of counsel to represent an indigent parent who responds in opposition to a suit filed by a governmental entity in which termination of the parent-child relationship is requested.6 Tex. Fam.Code Ann. § 107.013(a)(1) (Vernon Supp.2009). The Texas Supreme Court has held that this statutory right to counsel “embodies the right to effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex.2003). In doing so, the court emphasized that “ ‘[i]t would be a useless gesture on the one hand to recognize the importance of counsel in termination proceedings, as evidenced by the statutory right to appointed counsel, and, on the other hand, not require that counsel perform effectively.’ “ Id. (quoting In re K.L., 91 S.W.3d 1, 11 (Tex.App.-Fort Worth 2002, no pet.). Accordingly, the court concluded that the appropriate standard of review to apply in evaluating claims of ineffective assistance of counsel in civil parental-rights termination cases is the standard set forth by the United States Supreme Court for criminal cases in Strickland v. Washington. Id.

In Strickland, the United States Supreme Court pursuant to the Sixth Amendment, like the Texas Supreme Court pursuant to Family Code section 107.013(a)(1), expressly recognized:

That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

466 U.S. at 685, 104 S.Ct. at 2063 (emphasis added). Recognizing the difference between cases in which an accused has been denied the right to counsel and cases in which counsel for an accused has failed “to render ‘adequate legal assistance,’ “ the Supreme Court “elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases” and adopted a two-prong test. 466 U.S. at 686, 104 S.Ct. at 2064. In regard to a criminal defendant's claim of “actual ineffective assistance of counsel” based on the errors and omissions of his attorney, the defendant must show that (1) his attorney's performance was deficient and fell below an objective standard of reasonableness and (2) the deficient performance prejudiced his defense. 466 U.S. at 684-87, 104 S.Ct. at 2063-64.

However, the Supreme Court, in Strickland, expressly recognized that “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Id. at 692, 104 S.Ct. at 2067. In Cronic, the Supreme Court further expounded on the principle that prejudice is presumed “if the accused is denied counsel at a critical stage of his trial [or] ․ if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” 466 U.S. at 659, 104 S.Ct. at 2047 (emphasis added). The Supreme Court explained:

The [Sixth] Amendment requires not merely the provision of counsel to the accused, but “Assistance,” which is to be “for his defence.” ․ If no actual “Assistance” “for” the accused's “defence” is provided, then the constitutional guarantee has been violated. To hold otherwise “could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment .”

Id. at 654-55, 104 S.Ct. at 2044 (internal citations omitted). Accordingly, prejudice is presumed in circumstances that make it “unlikely that the defendant could have received the effective assistance of counsel.” See id. at 666, 104 S.Ct. at 2051. Why? Because the guarantee has been violated. Id. at 654, 104 S.Ct. at 2044.

In the “potted plant” presumed-prejudice case, the United States Court of Appeals for the Fifth Circuit noted that a “constructive denial of counsel occurs when the defendant is deprived of the guiding hand of counsel.” Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir.1997) (internal citations omitted). The court explained that if “the defendant complain[s] of counsel's errors, omissions, or strategic blunders in the context of an active adversarial representation,” then the Strickland two-prong deficient performance standard applies. Id. at 1229. The “critical question in assessing a ․ right to counsel claim is whether the [defendant] asserts that he received incompetent counsel, or none at all.” Id. at 1230. If such an argument is made, the rule is that “a constructive denial of counsel occurs when a criminal defendant must navigate a critical stage of the proceedings against him without the aid of an attorney dedicated to the protection of his client's rights under our adversarial system of justice,” or when counsel “[abandons] the defense of his client at a critical stage of the ․ proceedings.” Id. (Emphasis added).

Presumed Prejudice

In support of his argument that he received no meaningful assistance of counsel in the trial court and that prejudice to his defense must be legally presumed, Valencia emphasizes the shocking brevity of the transcript, less than six pages long, of his parental-rights termination trial and that trial counsel:

1. failed to bench warrant Valencia to trial, and failed to put his motion for continuance, based on his need to secure Valencia's presence at trial, in writing or to verify it;

2. failed to object when the trial court took judicial notice of the contents of DFPS's file;

3. failed to object to the introduction into evidence of Petitioner's Exhibit No. 1, which contained numerous unauthenticated copies of purported criminal records;

4. made the invalid objection “goes to the criminal side”;

5. failed to cross-examine Washington or to call any witnesses or offer any evidence in Valencia's behalf; and

6. failed to include in his statement of appellate points a challenge to the legal and factual sufficiency of the evidence supporting the trial court's finding that Valencia had endangered the child.

Based on these fundamental failures to act as an advocate on his behalf, Valencia asserts that trial counsel's representation “was so outrageous that it went beyond incompetent and can be rightly characterized as inert.”

We acknowledge that if a parent in a parental-rights termination case actually receives some meaningful assistance from his counsel, then the Strickland two-prong test provides the construct for analyzing the assistance provided. However, the record in this case compels us to conclude that Valencia received no meaningful assistance during the critical pre-trial and trial phases of his parental-rights termination proceeding. Valencia makes the threshold argument for triggering presumed prejudice analysis identified in Childress that he received no assistance, that is, “[i]n effect Appellant was not represented by counsel at trial.” See 103 F.3d at 1230. In Childress, the defendant outlined a list of the failures of his counsel who (1) never investigated the facts, (2) never discussed the applicable law with Childress, and (3) never advised him of the rights he would surrender by pleading guilty. Id. That Valencia has provided a list of failures does not negate his claim that he received no assistance of counsel. Rather, the magnitude of the failures makes his point that he was constructively denied counsel. Accordingly, we analyze his issue as a constructive denial of counsel/presumed prejudice issue rather than a deficient performance/prejudice issue. This analysis is in line with the Strickland standard adopted by the Texas Supreme Court in In re M.S. Again, the United States Supreme Court, in Strickland, expressly acknowledged that when an accused has been actually or constructively denied the assistance of counsel, prejudice to his defense is legally presumed. See Strickland, 455 U.S. at 692, 104 S.Ct. at 2067.

In his new trial motion, trial counsel, himself, affirmatively represented to the trial court that on the date of trial, Valencia was “within walking distance of the courtroom” and his “oral motion for continuance to allow [Valencia] to be brought over from the Harris County Jail should have been granted.” Yet, trial counsel's only effort to secure Valencia's presence at a trial in which his constitutionally protected parental rights were at stake was to state to the trial court, “To bring to your attention, he is out of Harris County and in county jail. We're asking for a couple of weeks.”

Although trial counsel, as revealed in his new trial motion, knew that Valencia was in the Harris County Jail, he did not clearly articulate this fact to the trial court on the trial date and did nothing to timely and properly secure Valencia's presence in court by either obtaining a bench warrant prior to trial or filing a written and verified motion for continuance. See Tex.R. Civ. P. 251. In fact, it is apparent from the face of the record that trial counsel did not even know how to secure Valencia's presence for trial. By failing to secure Valencia's presence at trial, trial counsel completely deprived Valencia of his right to testify on his own behalf and to assist trial counsel in presenting a defense, including the ability to assist trial counsel in cross-examining Washington, the only witness presented against Valencia.

Moreover, by idly sitting by and doing nothing, trial counsel essentially relieved DFPS of meeting its burden of proof. This is clearly revealed in the sparse five and one-half page trial transcript. When the trial court, sua sponte, took judicial notice of the contents of DFPS's file, Valencia's trial counsel failed to object or to do anything to require that DFPS present properly admissible evidence to establish its allegation that Valencia had endangered the child. When DFPS offered into evidence Petitioner's Exhibit No. 1, the packet of copies of purported criminal records, trial counsel, again, failed to object. The only properly certified copies concern the aggravated robbery case, which had been dismissed, and the misdemeanor assault case, which was still pending at the time the trial court entered its decree. See Tex. Gov't Code Ann. § 406.013; Tex.R. Evid. 901(7), 902(4). When counsel for DFPS stated, without any authenticating testimony, “These are photos of [Valencia's] assault,” trial counsel apparently could not articulate a proper objection, but rather made the nonsensical objection “goes to the criminal side.” And when given the opportunity to cross-examine Washington, the only witness that DFPS presented at trial, trial counsel responded, “No questions judge.”

Trial counsel's post-judgment representation was also essentially inert. Although he went through the formality of filing his Request for Findings of Fact and Conclusions of Law, he failed to timely file a notice of past due findings of fact after the trial court failed to enter any findings. See Tex.R. Civ. P. 297. In his Motion for New Trial and Statement of Appellate Points, trial counsel made a number of inexplicable contentions. For example, he contended that the trial court erred in denying his “oral motion for continuance” and the trial court, apparently sua sponte, “could have ordered all parties to mediation.”

Although trial counsel contended that the evidence presented at trial is legally and factually insufficient to support the trial court's finding that termination of Valencia's parental rights is in the child's best interest, he failed, after a trial that lasted only a few minutes, to challenge the legal and factual sufficiency of the evidence to support the trial court's findings that Valencia had actually “endangered” the child. This is truly remarkable given that the record conclusively shows that Valencia was not determined to be the child's father until after he had volunteered to submit to paternity testing and he had never had possession of the child. It is all the more remarkable given that the only “evidence” offered by DFPS on the issue of endangerment consisted of copies, mostly uncertified, of criminal records purportedly showing that Valencia had, (1) prior to the child's birth, been convicted of several misdemeanor and state jail felony offenses; (2) at the time of the child's birth, was in jail pending trial for the offense of aggravated robbery, a case which was later dismissed; and (3) after the child's birth, stood accused of the misdemeanor offense of assaulting Flores, who was no longer the child's mother because her parental rights had already been terminated.7

DFPS, citing Strickland's general and more often utilized two-prong analysis for analyzing deficient-performance claims, argues that because there is no evidence in the record to show trial counsel's strategy or other reasoning behind his acts and omissions, there is no basis upon which to conclude that his representation was ineffective. However, as noted above, the United States Supreme Court, in Strickland, expressly explained that the “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” 466 U.S. at 692, 104 S.Ct. at 2067. Here, the sparse record amply demonstrates that trial counsel wholly failed to provide Valencia any meaningful assistance of counsel. In fact, it clearly reveals that trial counsel did not know how to secure his client's presence in court, made no effort to provide a defense, did not know how to preserve error, and effectively acquiesced in the termination of Valencia's parental rights based upon scant and mostly inadmissible evidence.

Again, “the right to the assistance of counsel ․ envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland, 466 U .S. at 685, 104 S.Ct at 2063. The right to counsel, thus, “encompasses the right to have an advocate for one's cause.” Childress, 103 F.3d at 1228.

The United States Supreme Court has “dispensed with the Strickland prejudice inquiry in cases of actual or constructive denial of counsel,” “when a defendant can establish that counsel was not merely incompetent but inert.” Id. Constructive denial, such as when counsel “entirely fails to subject the prosecution's case to meaningful adversarial testing,” is the difference between “shoddy representation” and “no representation at all.” Id. at 1229; Cronic, 466 U.S. at 659, 104 S.Ct. at 2047; Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir.1998); see also Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir.2000).

We note that prejudice has been presumed where defense counsel repeatedly slept in trial while evidence was being introduced against the defendant. Burdine v. Johnson, 262 F.3d 336, 338 (5th Cir.2001). Prejudice has also been presumed where an appointed lawyer “never investigated the facts, never discussed the applicable law with [the defendant], and never advised him of the rights he would surrender by pleading guilty.” Childress, 103 F.3d at 1223. In Childress, the court presumed prejudice because it found that trial counsel took a “potted plant approach” to representing Childress; that is, “counsel's role was essentially passive.” Id. at 1226 (emphasis added).

Viewing the entire record before us, we are compelled to hold that Valencia received no meaningful assistance of counsel and was denied an advocate for his cause. There can be no reasonable trial strategy that would call for offering virtually no defense for a parent faced with termination of his fundamental parental rights based upon scant and mostly inadmissible evidence. See In re J.O.A., 283 S.W.3d at 342 (parent has fundamental liberty interest in maintaining custody and control of his child). Trial counsel idly sat by, doing nothing to ensure Valencia a fair hearing, and he essentially allowed DFPS to terminate Valencia's parental rights without having to prove its case.

In Cronic, the Supreme Court explained that the right to the effective assistance of counsel “is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing.” 466 U.S. at 656, 104 S.Ct. at 2045. The Supreme Court went on to say, “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Id. at 659, 104 S.Ct. 2047.

Taken as a whole, trial counsel's performance can only be seen as, at best, passive, and, at worst, acquiescing in DFPS's efforts to terminate Valencia's parental rights. Trial counsel utterly failed to subject DFPS's case to any meaningful adversarial testing such that the process itself was presumptively unreliable. This case serves as an example of when the narrow presumed prejudice exception discussed in Strickland and expounded upon in Cronic applies. Because Valencia received no meaningful assistance of counsel and was effectively denied an advocate for his cause, we are further compelled to presume prejudice to his defense. See id. The adversary process of the termination of Valencia's parental rights was presumptively unreliable. See id.

We sustain Valencia's first issue.8

Legal Sufficiency

Having sustained his first issue, we now address the merits of Valencia's second issue. See In re J.O.A., 283 S.W.3d at 339. In his second issue, Valencia argues that the evidence is legally and factually insufficient to support termination of his parental rights under section 161.001(1)(E) because there is no evidence in the record that he “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger [ed] the physical or emotional well being of the child.” He asserts that “[t]he record is completely silent as to ․ what acts or omissions [he] committed which endangered the child.” He notes that although Heiskill, in her affidavit, testified that Flores and the child had tested positive for opiates at the child's birth, nothing in Heiskill's testimony implicated Valencia. He also asserts that the trial court improperly took judicial notice of facts which were subject to dispute and there is no evidence that the “individual(s) identified in the criminal records was actually appellant.”

Standard of Review

A parent's right to “the companionship, care, custody, and management” of his children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982). The United States Supreme Court has emphasized that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). Likewise, the Texas Supreme Court has also concluded that “this natural parental right” is “essential,” “a basic civil right of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Consequently, termination proceedings must be strictly scrutinized. Id.

Because termination “is complete, final, irrevocable, and divests for all time that natural right ․ the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights.” Id. (citing Santosky, 455 U.S. at 747, 102 S.Ct. at 1391; Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984)). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex.2002). Because the standard of proof is “clear and convincing,” the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C ., 96 S.W.3d at 264-66.

Instead, in conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which the State bore the burden of proof. See id. at 266. In viewing the evidence in the light most favorable to the judgment, we “must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so,” and we “should disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (citing In re J.F.C., 96 S.W.3d at 256).

However, a fact finder may not reasonably infer an ultimate fact from meager circumstantial evidence, none more probable than another. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997). To be legitimate or permissible, an inference must be deduced as a logical consequence of the facts presented in evidence, and there must be a logical and rational connection between the facts in evidence and the fact to be inferred. United States v. Michelena-Orovio, 702 F.2d 496, 504 (5th Cir.), aff'd on reh'g, 719 F.2d 738 (5th Cir.1983) (en banc). With regard to the sufficiency of evidence in circumstantial evidence cases, one inference cannot be based upon another inference to reach a conclusion. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.2003). Such stacking is not considered evidence. Id.

In proceedings to terminate the parent-child relationship brought under section 161.001, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under subsection (1) of section 161.001 and that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon Supp.2009). Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

Endangerment

Here, the trial court found that Valencia had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger [ed] the physical or emotional well-being of the child.” See Tex. Fam.Code Ann. § 161.001(1)(E). In support of this finding, DFPS relied solely on Petitioner's Exhibit No. 1, the pack of copies, only two of which are certified, of criminal complaints and judgments and sentences purportedly made and entered against Valencia. DFPS offered no other testimony from its only witness, Washington, or any other evidence to support the trial court's finding. In sum, the only evidence offered to show that Valencia had endangered the child was that (1) prior to the child's birth, he had been convicted of several misdemeanor and state jail felony offenses; (2) at the time of the child's birth, he was in jail pending trial for the offense of aggravated robbery, a case which was later dismissed; and (3) after the child's birth, he stood accused of the misdemeanor offense of assaulting Flores, who was no longer the child's mother because her parental rights had already been terminated.

Disregarding the fact that the uncertified criminal history records were inadmissible,9 we recognize that intentional criminal activity which exposes a parent to incarceration may be relevant to establish a course of conduct endangering the emotional and physical well being of the parent's children. See Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 806 (Tex.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.) (evidence of father's commission of numerous robberies was admitted). However, to support the trial court's finding, the record must contain clear and convincing legally sufficient evidence that Valencia had engaged in “endangering” conduct. “Endanger” means to expose to loss or injury; to jeopardize; it consists of conduct that is more than a threat of metaphysical injury or the possible ill effects of a less than ideal family environment although the children need not suffer actual physical injury to constitute endangerment. Boyd, 727 S.W.2d at 533. Endangerment can occur through both the acts and omissions of a parent. In re R.D., 955 S.W.2d 364, 367 (Tex.App.-San Antonio 1997, pet. denied).

Evidence of a parent's past conduct, including a criminal history, may be relevant and admissible if it shows a conscious course of conduct and instability occurring both “before and after a child's birth.” Avery v. State, 963 S.W.2d 550, 553 (Tex. App .-Houston [1st Dist.] 1997, no writ). However, the Texas Supreme Court has explained that

Mere imprisonment will not, standing alone, constitute engaging in conduct that endangers the physical or emotional well-being of a child․ [I]f the evidence, including imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under [section 160.001(1)(E) ] 10 is supportable.

Boyd, 727 S.W.2d at 531 (emphasis added). For example, a trial court would not err in admitting evidence of a parent's “lengthy criminal record” involving narcotics abuse in a case in which the parent had “not altered her behavior.” Avery, 963 S.W.2d at 553. However, the termination of parental rights should not be used as punishment in addition to imprisonment for the commission of criminal offenses. In re C.T.E., 95 S.W.3d 462, 466 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

Here, Washington did testify that Valencia had a “repeated criminal history,” but DFPS offered no evidence to establish that Valencia's incarceration for misdemeanors and state jail felonies, none of which involved narcotics, and all of which resulted from offenses committed prior to the child's birth, had the effect of endangering the child. In fact, Valencia had, at the time of trial, last been convicted of an offense on September 23, 2004, more than two years prior to the child's birth. Washington, in response to a leading question, merely made the conclusory assertion that because he had such a criminal history, Valencia had engaged in conduct that endangered the physical and emotional well-being of the child. Again, such evidence of incarceration alone will not support a reasonable inference, i.e., “an inference ․ deduced as a logical consequence of the facts presented,” of actual endangerment. See Michelena-Orovio, 702 F.2d at 504. Boyd clearly requires other evidence, something more than “mere imprisonment,” to establish a course of conduct which has the effect of endangering the physical or emotional well-being of a child in violation of section 160.001(1)(E). 727 S.W.2d at 531.

It is true that Valencia was in the Harris County Jail at the time of the child's birth. However, the case for which he was being held was, as conceded by DFPS, dismissed. Also, although Petitioner's Exhibit No. 1 shows that Valencia, on the date of trial, stood accused of the misdemeanor offense of assaulting Flores, nothing in the record indicates that, as of the date the trial court entered its decree, he had been convicted of the offense .11 In regards to the reference of DFPS's counsel to “photos of his assault,” the record shows that no photographs were marked as exhibits nor admitted into evidence.

In support of its argument that a history of incarceration for criminal offenses alone can support a finding of endangerment, DFPS relies on In re J.T.G., 121 S.W.3d 117, 113 (Tex.App.-Fort Worth 2003, no pet.), In re C.H., 89 S.W.3d 17, 28 (Tex.2002), In re M.R., 243 S.W.3d 807, 819 (Tex.App.-Fort Worth 2007, no pet.), In re S.D., 980 S.W.2d 758, 763 (Tex.App.-San Antonio 1998, pet. denied), In re T.D.C., 91 S.W.3d 865, 873, 880 (Tex.App.-Fort Worth 2002, pet. denied) and In re U.P., 105 S.W.3d 222, 236 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). However, in cases in which such a criminal history is relied upon to support a finding of endangerment, including the cases relied upon by DFPS, there is always, consistent with Boyd, other evidence presented that puts the criminal history in the context of a pattern of endangering conduct. See In re J.T.G. 121 S.W.3d at 133 (criminal history of parent plus evidence of violence in front of child; parent was abused as child; and parent abused narcotics and alcohol); In re C.H., 89 S.W.3d at 21 (parent testified about extensive criminal history, and psychologist testified ten year prison sentence would impede parent's ability to parent); In re M.R., 243 S.W.3d at 819 (criminal history plus testimony that parent used narcotics in front of child and parent's incarceration affected ability to take care of child); In re S.D., 980 S.W.2d at 763 (criminal record plus testimony that parent abused narcotics and alcohol and had inability to support family); In re U.P., 105 S.W.3d at 236 (criminal history plus expert testimony about impact on child and testimony about parent's use of narcotics); see also Padilla v. Dep't of Family and Protective Servs., No. 01-07-00313-CV, 2008 WL 525750 (Tex.App.-Houston [1st Dist.] Feb. 28, 2008, no pet.) (memo op.) (criminal history plus testimony as to multiple prior referrals with DFPS); Callahan v. Brazoria County Children's Protective Servs. Unit, No. 01-01-00916-CV, 2003 WL 21299952 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (memo op.) (criminal history plus psychiatrist's testimony that father had propensity for violence and anti-social personality disorder, mother's testimony about father's violence towards family, and father's testimony about marijuana use); Robinson v. Tex. Dep't. of Protective and Regulatory Servs., 89 S.W.3d 679, 682-83 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (criminal history plus parent's testimony that she had long history of narcotics abuse before and after birth of children and father's testimony that children were afraid of mother); In re S.F ., 32 S.W.3d 318, 321 (Tex.App.-San Antonio 2000, no pet.) (extensive criminal history plus caseworker's testimony about parent's marijuana use and discipline problems while incarcerated and the effect this had on child); Allred, 615 S.W.2d at 806 (criminal history plus father beat mother after he learned she was pregnant and threatened to throw mother down stairs to cause miscarriage).

These cases illustrate that the mere fact that Valencia had a criminal history prior to the birth of the child is not legally sufficient, on its own, to support a finding under section 161.001(1)(E). Again, Boyd is clear that “if the evidence, including imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under [section 160.001(1)(E) ] is supportable.” 727 S.W.2d at 531 (emphasis added).

Although DFPS, at trial, relied only on Valencia's criminal history to support its section 161.001(1)(E) allegation, DFPS on appeal now asserts that Valencia also engaged in endangering conduct by his failure to take “swift and appropriate actions in support of [the child] during the pendency of the case or to secure reunification,” “his apathetic attitude,” and “his failure to take any action to check on the child or initiate visits before or after [he took the paternity test].” However, Valencia was in the Harris County Jail in November 2006 at the time the child was born and when DFPS removed the child from Flores's care two days later. It is clear that Valencia's incarceration pending trial on a case which was later dismissed does not constitute endangering conduct. Valencia had had no contact with the child and, because he was in jail, he could not take “swift and appropriate actions in support of [the child]” or appear in court on November 16, 2006, the date of the first adversary hearing and the date that he was served with DFPS's petition. He simply had no time to retain counsel between the time that he was served while in jail at 8:40 a.m. and the time of the first adversary hearing at 1:00 p.m. Neither could he appear and request the appointment of counsel because DFPS did not bench warrant him to secure his presence at the hearing.

The record shows that DFPS created a family service plan for Valencia in January 2007 even though his parentage had not yet been established. As per the plan, Washington was to play an active role in assessing Valencia's progress against the plan; however, there is no evidence in the record that Valencia ever received a copy of the plan or that Washington engaged Valencia in any way regarding the plan. In fact, the record shows that Washington first met Valencia at a hearing one year later in January 2008 when Valencia first appeared in the case and offered to take a paternity test. We conclude that Washington had no basis of knowledge to comment on whether Valencia's history of incarceration prior to the child's birth constituted a course of conduct which endangered the child. Moreover, Valencia was not positively determined to be the child's father until the results of the paternity test were known in February 2008, two months before his parental rights were terminated.

In sum, the only evidence offered by DFPS on the issue of endangerment consisted of copies, mostly uncertified, of criminal records purportedly showing that Valencia had, (1) prior to the child's birth, been convicted of several misdemeanor and state jail felony offenses; (2) at the time of the child's birth, was in jail pending trial for the offense of aggravated robbery, a case which was later dismissed; and (3) after the child's birth, stood accused of the misdemeanor offense of assaulting Flores, who was no longer the child's mother because her parental rights had already been terminated. Moreover, the record conclusively establishes that Valencia was not determined to be the child's father until after he volunteered to take a paternity test and he had never had possession of the child.

Viewing all of the evidence in the light most favorable to the trial court's finding, we cannot say that the trial court could have reasonably formed a firm belief or conviction that Valencia had engaged in a course of conduct that endangered the physical and emotional well-being of the child. Accordingly, we hold that the evidence is legally insufficient to support the trial court's finding that Valencia, based on his prior history of incarceration for criminal offenses, actually endangered the child. See Boyd, 727 S.W.2d at 531.

We sustain Valencia's second issue.

Conclusion

We reverse the trial court's judgment terminating Valencia's parental rights and render judgment in favor of Valencia.

FOOTNOTES

1.  See Tex. Fam.Code Ann. § 161.001(1)(E) (Vernon Supp.2009).

2.  The motion, which is typed, reads in pertinent part as follows:1. This Motion is brought by the Harris County Attorney's Office on behalf of the Department of Family and Protective Services, who asks the Court, pursuant to Rule 251, Texas Rules of Civil Procedure, to grant a continuance for the trial; of this cause. As grounds for the requested continuance Movant alleges:1.1. Additional time is needed to bench warrant the alleged father, Joe Lewis Valencia.․The motion contains a signature space which clearly reads:Respectfully submitted,MIKE STAFFORDHARRIS COUNTY ATTORNEYSPN# [ ․ ]_Susan FillionAttorney for Petitioner, Department of Familyand Protective Services2525 Murworth Drive, Suite 300Houston, TX 77054-1603․Although not signed by her, the signature space also contains the State Bar number and telephone number of Fillion. Stafford and Fillion's information is lined through, and, next to this information appears, in handwriting, trial counsel's signature, name, and information.

3.  See Tex. Gov't Code Ann. § 51.301 (Vernon Supp.2009), § 406.013 (Vernon 2005); Tex R. Evid. 901(7), 902(4).

4.  The uncertified copies of criminal complaints and judgments and sentences in Petitioner's Exhibit 1 purport to establish that Valencia, was convicted of the following offenses: (1) on April 4, 1997, the offense of Unauthorized Use of a Motor Vehicle, punished as a misdemeanor with a sentence of 180 days confinement in the Harris County Jail; (2) on November 11, 1997, the offense of Theft From a Person, punished as a misdemeanor with a sentence of one year confinement in the Harris County Jail; (3) on April 22, 1998, the offense of Driving While Intoxicated, a misdemeanor, with a sentence of 60 days in the Harris County Jail; (4) on February 14, 2000, the offense of Evading Arrest, a misdemeanor, with a sentence of 60 days in the Harris County Jail; (5) on May 30, 2000, the offense of Assault, a misdemeanor, with a sentence of 90 days in the Harris County Jail; (6) on June 25, 2002, the offense of Driving While Intoxicated, a misdemeanor, with a sentence of 90 days in the Harris County Jail; (7) on September 19, 2003, of offense of Unauthorized Use of a Motor Vehicle, a state jail felony, with a sentence of 180 days in a state jail; and (8) on September 23, 2004, the offense of Theft, a state jail felony, with a sentence of 14 months in a state jail.

5.  See Tex. Fam.Code. Ann. § 161.001(1)(E) (“The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence ․ that the parent has ․ engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.”).

6.  Although not argued by Valencia, we note that this Court has further recognized that a parent has a constitutional right to counsel in a such cases. Bermea v. Tex. Dep't Family and Protective Servs., 265 S.W.3d 34, 39 (Tex.App.-Houston [1st Dist.] 2008, pet. denied); In re J.M.S., 43 S.W.3d 60, 63 (Tex.App.-Houston [1st Dist.] 2001, no pet.). In so doing, we emphasizedThe United States Supreme Court has unanimously held that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” ․ It also unanimously held that “[f]ew consequences of judicial action are so grave as the severance of natural family ties.” ․ For these reasons, the United States Supreme Court places termination of parental rights cases in the same category as criminal cases and analogizes a parent losing parental rights to a “defendant resisting criminal conviction” because both seek “to be spared from the State's devastatingly adverse action.”In re J.M.S., 43 S.W.3d at 63 (quoting M.L.B., 519 U.S. 102, 103, 117 S.Ct. 555, 565, 136 L.Ed.2d 473 (1996)); see also Bermea, 265 S.W.3d at 39.

7.  We note that after this Court had reviewed the five and one-half page trial transcript and afforded Valencia's original appellate counsel (who was also his trial counsel) the opportunity to file an amended brief on behalf of Valencia, he, again inexplicably, filed a “Waiver of Opportunity to File a Supplemental Brief.”

8.  In post-submission briefing, DFPS argues that Valencia had no right to statutory appointed counsel until after the termination proceeding ended because he did not “respond in opposition” when he was served on November 16, 2006, file an affidavit of indigency, and seek appointment of counsel. See Tex. Fam.Code Ann. § 107.013. DFPS further argues that Valencia cannot bring an ineffective assistance of counsel claim because he had no statutorily appointed counsel, rather he retained trial counsel as his counsel. However, when trial counsel first acted on behalf of Valencia by filing the September 6, 2007 motion for continuance with the help of DFPS, the record does not show that he had ever met Valencia. An attorney may not unilaterally create an attorney-client relationship with a person; that person must take some express or implied act to retain counsel, the least of which should be consulting with the attorney. See Span Enterprises v. Wood, 274 S.W.3d 854, 858 (Tex.App.-Houston [1st Dist.] 2008, no pet.). We conclude that trial counsel could have only acted as Valencia's counsel if the trial court had appointed him, despite the requirements of the Family Code. We further note that the record shows that DFPS actually assisted trial counsel, who was obviously acting as Valencia's appointed counsel, seek the September 6, 2007 continuance to obtain a bench warrant for Valencia to appear in court. Finally, whether trial counsel was appointed or retained, Valencia still was entitled to representation “necessary to ensure that the trial [was] fair.” Strickland, 466 U.S. at 685, 104 S.Ct. at 2063.

9.  Criminal history records are public records that must be authenticated before they are admissible. See Hull v. State, 172 S.W.3d 186, 189-90 (Tex.App.-Dallas 2005, pet ref'd); Carlock v. State, 99 S.W.3d 288, 295 (Tex.App.-Texarkana 2003, no pet.). The requirement of authentication is a “condition precedent to admissibility.” Tex R. Evid. 901(a). Authentication of a public record requires evidence that a purported public record is from the public office where items of that nature are kept. Tex.R. Evid. 901(b)(7). A public record can be self-authenticating if the document (1) bears “a seal purporting to be that of ․ any State ․ and any signature purporting to be an attestation or execution or (2) purports “to bear the signature in the official capacity of an officer or employee of [the State], having no seal, if a public officer having a seal and having official duties in the [State] of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.” Tex.R. Evid. 902(1)-(2). In Carlock, uncertified copies of existing judgments of the defendant's alleged prior convictions were inadmissible because the defendant's parole officer was unable to provide the proof necessary for authentication that the judgments were from the public office responsible for maintaining those records. 99 S.W.3d at 295.Here, none of the copies of documents offered by DFPS to prove that Valencia had previously been convicted of several misdemeanors and state jail felonies was authenticated. Washington, like the parole officer in Carlock, could not have authenticated the records. Thus, the unauthenticated criminal history records were inadmissible. However, because trial counsel did not object to their admission, we consider Petitioner's Exhibit No. 1 in our sufficiency review. See Tex.R. Evid. 802 (“Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”); Tear v. State, 74 S.W.3d 555, 559 (Tex.App.-Dallas 2002, pet. ref'd) (When reviewing legal sufficiency, courts “look to all the evidence in the record, including admissible and inadmissible evidence, and direct and circumstantial evidence.”); see also Farley v. Farley, 731 S.W.2d 733, 734 (Tex.App.-Dallas 1987, no writ) (applying rule 802 and explaining that unauthenticated judgment of another state's court, which would be hearsay, was not denied probative value when admitted without objection).

10.  Boyd references section 15.02(1)(E), the predecessor to Texas Family Code section 161.001(1)(E).

11.  At oral argument, this Court invited briefing on the issues as to whether it could take judicial notice of whether Valencia was or was not subsequently convicted of this offense and whether we could consider any such information in deciding the issues presented. After considering the arguments of the parties, we conclude that we may not take judicial notice of a conviction that was not in existence at the time of trial. See Brown v. Brown, 236 S.W.3d 343, 349 (Tex.App.-Houston [1st Dist.] 2007, no pet.). We note that in conducting our analysis, we are bound by the record containing the evidence that was before the trial court at the time it entered its decree. See Univ. of Tex. v. Morris, 162 Tex. 60, 344 S.W.2d 426, 429 (Tex.1961); Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

TERRY JENNINGS, Justice.

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