Reported / Citable
Background
The Texas Department of Family and Protective Services initiated proceedings in Denton County’s 367th District Court to terminate the parental rights of a mother to her two children, S.K. and A.K. A jury found clear and convincing evidence supporting three statutory predicate grounds under Texas Family Code § 161.001(b)(1): creating an endangering environment (subsection D), engaging in endangering conduct (subsection E), and using a controlled substance while failing to complete a court-ordered substance-abuse treatment program (subsection O). The jury also made the requisite best-interest finding. The father’s parental rights were separately terminated, and he did not appeal.
Mother did not challenge the sufficiency of the evidence underlying the jury’s termination findings. Instead, she raised two procedural and constitutional challenges on appeal: first, that the jury charge contained an improper non-statutory definition of “endanger” that amounted to a direct comment on the evidence; and second, that her appointed trial counsel was constitutionally ineffective for failing to investigate or contest the drug-test results that formed the evidentiary backbone of the State’s case.
The Court’s Holding
The Second Court of Appeals affirmed the termination order on both issues. On the jury-charge claim, the court held that Mother waived any error by failing to object to the charge at trial. Although Mother urged the court to adopt a special preservation exception for parental-rights cases to better protect constitutional parental interests, the court declined, noting that the Texas Supreme Court had already squarely foreclosed that argument in In re A.F., 113 S.W.3d 363 (Tex. 2003), and In re B.L.D., 113 S.W.3d 340 (Tex. 2003), holding that preservation rules apply fully in termination cases and that due process does not require appellate review of unpreserved charge error.
On the ineffective-assistance claim, the court applied the two-prong Strickland test and found that Mother could not satisfy the deficient-performance prong. Mother argued that trial counsel should have challenged the drug-test results by invoking the forensic-analyst and laboratory licensing requirements enacted by Senate Bill 1287 of the 84th Texas Legislature, codified at Article 38.01 and Article 38.35 of the Texas Code of Criminal Procedure. The court held that those statutes apply exclusively to criminal actions and expressly exclude civil and administrative litigation. Because a parental-rights-termination proceeding is a civil matter, any objection grounded in the criminal forensic-licensing scheme would have been frivolous and properly overruled. Counsel cannot be faulted for declining to make a meritless objection, and Mother pointed to no other legal theory supporting exclusion of the drug-test evidence.
Key Takeaways
- Jury-charge complaints in parental-rights-termination cases must be preserved by timely objection at trial; Texas courts will not craft a special exception to preservation rules even given the constitutional weight of parental rights.
- Texas’s forensic-analyst and laboratory licensing scheme under Articles 38.01 and 38.35 of the Code of Criminal Procedure applies only to criminal actions — it does not govern drug-test evidence offered in civil parental-termination proceedings, even when the underlying conduct could carry criminal implications.
- A parental-termination ineffective-assistance claim fails at the deficiency prong when the only argued basis for objection would have been legally frivolous; trial counsel is not required to make unavailing objections.
- The civil versus criminal character of a proceeding is determined by the nature of the litigation itself, not by the presence of embedded criminal-law questions or facts.
Why It Matters
This decision reinforces that standard civil preservation rules apply with full force in parental-termination jury trials, foreclosing after-the-fact appellate correction of charge errors that skilled counsel could have raised below. For practitioners representing parents in termination proceedings, the case is a pointed reminder that charge review must occur before the jury retires — not on appeal.
The court’s analysis of the forensic-licensing statutes also provides useful guidance for both family-law and criminal-defense practitioners: the accreditation and licensing requirements of Articles 38.01 and 38.35 are tools for criminal litigation only. Attorneys handling civil child-protective cases who seek to challenge drug-testing methodology must look to evidentiary rules, expert-qualification standards, and civil discovery rather than the criminal forensic-science framework.