In re D.T. (2021): Ineffective-Assistance Claims With a Hired Lawyer

The short answer

In In re D.T., the Supreme Court of Texas held that a parent who opposes a government-initiated suit to end parental rights may claim on appeal that her lawyer was ineffective, meaning the representation was "so grossly deficient as to render proceedings fundamentally unfair" In re D.T., 625 S.W.3d 62 (Tex. 2021), whether the lawyer was appointed or hired In re D.T., 625 S.W.3d 62 (Tex. 2021). The mother's claim failed under the Strickland test, so the Court affirmed the termination In re D.T., 625 S.W.3d 62 (Tex. 2021).

What the case was about

The Department intervened shortly after D.T. was born in late 2016 In re D.T., 625 S.W.3d 62 (Tex. 2021). It sought an order under Family Code chapter 264 requiring the mother to complete a service plan In re D.T., 625 S.W.3d 62 (Tex. 2021). (For how court-ordered services work today, see Court-Ordered Services in Texas CPS Cases (Family Code §264.203).) After D.T.'s infant sibling died, D.T. was removed again In re D.T., 625 S.W.3d 62 (Tex. 2021).

The trial court had found the mother indigent and appointed a lawyer. About six months before trial, she hired a new lawyer In re D.T., 625 S.W.3d 62 (Tex. 2021). A jury unanimously found grounds for termination and that it was in D.T.'s best interest In re D.T., 625 S.W.3d 62 (Tex. 2021). Her hired lawyer filed a notice of appeal, but not a motion for new trial or any other step to preserve a challenge to the evidence. A month later, he was suspended from practicing law In re D.T., 625 S.W.3d 62 (Tex. 2021).

On appeal, the court of appeals would not reach her evidence challenge because it was not preserved In re D.T., 625 S.W.3d 62 (Tex. 2021). It also held she could not claim ineffective assistance because her lawyer was hired, not appointed In re D.T., 625 S.W.3d 62 (Tex. 2021).

What the court decided

Justice Huddle wrote the opinion of the Court for five justices. Justice Boyd wrote a concurrence joined by Chief Justice Hecht and Justice Lehrmann In re D.T., 625 S.W.3d 62 (Tex. 2021).

Where the right comes from. In In re M.S. (2003), the Court recognized that indigent parents in government-initiated termination suits have a right to effective appointed counsel In re D.T., 625 S.W.3d 62 (Tex. 2021). It reasoned that the statutory right to appointed counsel in section 107.013(a) "embodies the right to effective counsel" In re D.T., 625 S.W.3d 62 (Tex. 2021). In D.T., the Court read subsection (a-1)(1), which tells courts to inform unrepresented parents of the right to a lawyer. It said that rule "applies without regard to indigency" and gives all parents opposing these suits the right to counsel In re D.T., 625 S.W.3d 62 (Tex. 2021).

The holding. A parent opposing a government-initiated termination suit may claim ineffective assistance on appeal "regardless of whether the parent's counsel was appointed or retained" In re D.T., 625 S.W.3d 62 (Tex. 2021). The court of appeals erred by refusing to consider the claim In re D.T., 625 S.W.3d 62 (Tex. 2021).

Why the claim still failed. A parent must meet both parts of the Strickland test, which M.S. adopted from criminal law In re D.T., 625 S.W.3d 62 (Tex. 2021). Courts give "great deference" to a lawyer's choices. Conduct counts as ineffective only when it was "so outrageous that no competent attorney would have engaged in it" In re D.T., 625 S.W.3d 62 (Tex. 2021). The complaints about witness lists were not gross deficiencies and caused no prejudice In re D.T., 625 S.W.3d 62 (Tex. 2021). When no motion for new trial is filed, courts presume it was considered and rejected, and nothing in the record rebutted that In re D.T., 625 S.W.3d 62 (Tex. 2021). So the Court affirmed In re D.T., 625 S.W.3d 62 (Tex. 2021).

The concurrence. Justice Boyd agreed with the result but not with recognizing a right to effective hired counsel In re D.T., 625 S.W.3d 62 (Tex. 2021). He said the Family Code "cannot reasonably be construed as providing that right," and called that part of the opinion "unnecessary dictum" In re D.T., 625 S.W.3d 62 (Tex. 2021). The majority replied that "deciding the question presented by a petition is a holding, not dicta" In re D.T., 625 S.W.3d 62 (Tex. 2021).

In the court's words

"Termination of parental rights is traumatic, permanent, and irrevocable."

In plain English: the stakes in these cases are as high as they get, quoted here from M.S. In re D.T., 625 S.W.3d 62 (Tex. 2021).

Deciding the question presented by a petition is a holding, not dicta.

In plain English: the majority meant its ruling on hired lawyers to be binding In re D.T., 625 S.W.3d 62 (Tex. 2021).

Why it matters for Texas families

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). If a parent has no lawyer at the first court appearance, the court must tell the parent about "the right to be represented by an attorney" Tex. Fam. Code §107.013(a-1). D.T. read these rules to mean a parent with a hired lawyer can also raise an ineffective-assistance claim In re D.T., 625 S.W.3d 62 (Tex. 2021). See Your Right to a Lawyer in a Texas CPS Case.

The bar for these claims is high, because courts give "great deference" to a lawyer's choices In re D.T., 625 S.W.3d 62 (Tex. 2021). If you are worried about how your case is being handled, ask about it early. This is legal information, not legal advice.

Related

• Your Right to a Lawyer in a Texas CPS Case
• In re B.L.D. (2003): One Lawyer for Two Parents, and Objecting at Trial
• In re J.F.C. (2002): How Appeals Courts Test the Evidence in Termination Cases
• In re C.J.C. (2020): The Fit-Parent Presumption in Modification Cases
• Lassiter v. Department of Social Services (1981): Is There a Right to a Free Lawyer in a Termination Case?