In re B.L.D. (2003): One Lawyer for Two Parents, and Objecting at Trial

The short answer

In In re B.L.D., the Supreme Court of Texas decided two things. First, when one appointed lawyer represents both parents, the trial court must ask whether there is a "substantial risk" that the lawyer's duties to one parent would "materially and adversely affect" the other In re B.L.D., 113 S.W.3d 340 (Tex. 2003). Second, as a general rule, due process does not require appeals courts to review complaints about the jury charge that were never raised at trial In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

What the case was about

A toddler was seriously scalded in the kitchen sink. The Department immediately removed both of the family's children and filed suit In re B.L.D., 113 S.W.3d 340 (Tex. 2003). The trial court later returned the children while the parents worked a reunification plan, then ordered them removed again in February 1999 on a finding of immediate danger In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

The parents' hired lawyer withdrew because they could no longer pay him. The court appointed one lawyer for both parents In re B.L.D., 113 S.W.3d 340 (Tex. 2003). That lawyer asked for separate trials, citing "a potential for conflict of interest," and the court said no In re B.L.D., 113 S.W.3d 340 (Tex. 2003). No one objected to the form of the jury charge (the jury's instructions and questions). The jury voted 10-2 to terminate both parents' rights In re B.L.D., 113 S.W.3d 340 (Tex. 2003). A divided court of appeals reversed on both issues In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

What the court decided

Justice Wainwright wrote the opinion of the Court In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

One lawyer, two parents. The Court said indigent parents have a statutory right to counsel, and parents sued in the same case "are entitled to nonconflicted counsel" In re B.L.D., 113 S.W.3d 340 (Tex. 2003). The statute then allowed one lawyer for both parents if the court found their interests were not in conflict In re B.L.D., 113 S.W.3d 340 (Tex. 2003). The test is whether there is a substantial risk that the lawyer's duties to one parent would materially and adversely affect the other In re B.L.D., 113 S.W.3d 340 (Tex. 2003). A potential for conflict "may always be present," so the question is whether there is an actual conflict In re B.L.D., 113 S.W.3d 340 (Tex. 2003). Here the evidence showed the parents' interests "were aligned," and the trial court did not err In re B.L.D., 113 S.W.3d 340 (Tex. 2003). The Court also noted that clients may waive a conflict and keep one lawyer after full disclosure and consent In re B.L.D., 113 S.W.3d 340 (Tex. 2003). It did not decide the constitutional question the court of appeals raised on its own In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

Objecting at trial. Under Texas rules, failing to object to the jury charge at trial waives the complaint on appeal In re B.L.D., 113 S.W.3d 340 (Tex. 2003). Objecting gives the trial judge a chance to fix the error In re B.L.D., 113 S.W.3d 340 (Tex. 2003). The Court refused to use the "fundamental-error" doctrine to review the charge here In re B.L.D., 113 S.W.3d 340 (Tex. 2003). Using the due process framework from the U.S. Supreme Court's Lassiter decision, it held that as a general rule due process does not require review of unpreserved charge error In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

A door left open. The Court said a different balance of interests in a given case "could require" review of an unpreserved complaint In re B.L.D., 113 S.W.3d 340 (Tex. 2003). It pointed to In re M.S., decided the same day. That case held that appointed counsel's unjustified failure to preserve a sufficiency challenge could, in some circumstances, violate due process. It also decided that the statutory right to counsel includes a right to effective assistance In re B.L.D., 113 S.W.3d 340 (Tex. 2003). These parents did not claim their lawyer was ineffective In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

The Court reversed and sent the case back to the court of appeals for its remaining issues In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

In the court's words

In Texas, indigent parents have a statutory right to counsel in termination cases.

In plain English: in these cases, Texas law provides a lawyer for a parent who cannot afford one, under the conditions the statute sets In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

We acknowledge that a potential for conflicts of interest between parents challenging termination may always be present.

In plain English: some chance of conflict is always there, so the court looks for an actual conflict In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

Under our procedural rules, the failure to raise a complaint at trial to a jury charge waives review of that complaint on appeal.

In plain English: raise problems with the jury's instructions before the jury decides In re B.L.D., 113 S.W.3d 340 (Tex. 2003).

Why it matters for Texas families

The statute B.L.D. applied has changed. Today, in a suit by a governmental entity seeking termination or a conservator, the court must appoint an attorney ad litem for an indigent parent who responds in opposition Tex. Fam. Code §107.013(a). One attorney ad litem may represent both parents only if their interests are not in conflict and there is no history or pattern of family violence by one parent against the other parent, a spouse, or a child of the parties Tex. Fam. Code §107.013(b). See Your Right to a Lawyer in a Texas CPS Case.

If you share a lawyer with the other parent and your goals differ, it may help to raise that with your lawyer early. For how the Court later treated claims that a parent's lawyer was ineffective, see In re D.T. (2021): Ineffective-Assistance Claims With a Hired Lawyer. This is legal information, not legal advice.

Related

• In re J.F.C. (2002): How Appeals Courts Test the Evidence in Termination Cases
• In re D.T. (2021): Ineffective-Assistance Claims With a Hired Lawyer
• Your Right to a Lawyer in a Texas CPS Case
• Lassiter v. Department of Social Services (1981): Is There a Right to a Free Lawyer in a Termination Case?
• Santosky v. Kramer (1982): The Proof Needed to End Parental Rights