In the Interest of J.E.P., a Child v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00386-CV

IN THE INTEREST OF J.E.P., A CHILD

From the County Court at Law
Hill County, Texas
Trial Court No. CV597-22CCL

MEMORANDUM OPINION

Following a jury trial in this parental-rights termination case, Father raises issues

concerning the trial court’s jurisdiction, jury charge error, and ineffective assistance of

counsel. We affirm.

Background

At trial, the jury heard evidence that the Department of Family and Protective

Services (“the Department”) first became involved in J.E.P.’s life in 2014 when J.E.P.’s

meconium tested positive for a controlled substance at birth. J.E.P.’s mother’s rights were

terminated and Father was given custody of J.E.P. In 2019, the Department initiated

another case with Father and J.E.P. because Father was arrested for possession of
marijuana and had made calls to law enforcement reporting that he was seeing people in

his attic. After Father completed services, the case was dismissed. In 2021, Father was

detained under an emergency detention order, and he continued to report seeing people

in his attic. The Department initiated another case and petitioned for J.E.P.’s removal due

to Father testing positive for methamphetamine, cocaine, and marijuana upon arrival at

the hospital. Father eventually completed services and was appointed joint managing

conservator with J.E.P.’s aunt, B.W.

The instant case was initiated when the Department received a report that J.E.P.

was seen at a football game with dried blood around her nose and mouth and told

someone that Father hit her with a belt whenever he was mad. J.E.P. did not make any

allegations of abuse when the Department interviewed her. However, J.E.P. reported

sometimes being scared in her home because Father was seeing people that no one else

could see. She reported to the Department that because Father was seeing people in the

house, he would walk around with a crossbow, a bat, and a slingshot. The Department

also had concerns with J.E.P.’s hygiene. When Father drug tested for the Department as

part of its investigation, he was positive on his hair test for cocaine and marijuana. J.E.P.

was subsequently removed.

While this case was pending, Father was arrested for disorderly conduct when a

neighbor reported that he was driving around in his vehicle while pointing his crossbow

out the window. Upon contact with one of the responding law enforcement officers,

In the Interest of J.E.P., a Child Page 2
Father requested assistance with the people in his attic. When Father testified at trial, he

admitted that he had discharged his crossbow in his attic at “[w]hat looked like people,”

and that he had shot someone in the attic with a black-powder pistol. Father also stated

that he had done everything required for J.E.P. to be returned to his care, except that he

did not complete psychological treatment.

The jury found that Father committed acts in violation of Sections 161.001(b)(1)(D),

161.001(b)(1)(E), 161.001(b)(1)(O), and 161.003, and that termination of the parent-child

relationship was in J.E.P.’s best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D),

161.001(b)(1)(E), 161.001(b)(1)(O), 161.001(b)(2), 161.003. The trial court’s judgment

included each termination ground found by the jury and found that termination was in

J.E.P.’s best interest. See id. at §§ 161.001(b)(1), 161.001(b)(2), 161.003.

Jurisdiction

In his first issue, Father asserts that the trial court did not have jurisdiction to

render the final order in this suit because the 74th District Court of McLennan County had

continuing, exclusive jurisdiction over J.E.P. that was never transferred to the County

Court at Law of Hill County. We disagree.

Texas Family Code Chapter 155 addresses how a court acquires continuing,

exclusive jurisdiction over a child in suits affecting the parent-child relationship and how

jurisdiction may be properly acquired by another court. See TEX. FAM. CODE ANN. §§

155.001–.301. Section 155.103(a) specifically provides that a court shall acquire

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jurisdiction over a suit affecting the parent-child relationship if it has been, correctly or

incorrectly, informed by the vital statistics unit that the child has not been the subject of

a suit and the petition states that no other court has continuing, exclusive jurisdiction

over the child. Id. at § 155.103(a).

In its original petition in this case, filed on December 16, 2022, the Department

alleged that the County Court at Law of Hill County had jurisdiction of the suit, and that

it believed no other court had continuing, exclusive jurisdiction over the child.

Furthermore, the clerk's record contains a letter from the Texas Vital Statistics Section of

the Department of State Health Services, dated December 20, 2022, certifying that J.E.P.

"has not been the subject of a suit affecting the parent-child relationship in which a

judgment was entered on or after January 1, 1974." Accordingly, the Family Code

expressly permitted the County Court at Law of Hill County to rely on the vital statistics

information and assume jurisdiction over this suit. Id. If another court previously had

continuing, exclusive jurisdiction over J.E.P., it lost jurisdiction when the County Court

at Law of Hill County rendered a final order, even if it was based on incorrect information

received from the vital statistics unit that there was no court of continuing, exclusive

jurisdiction. Id. at § 155.004(a)(3). We overrule Father’s first issue.

Jury Charge Error

In Father’s second issue, he claims that the trial court erred by failing to instruct

the jury on Texas Family Code Section 161.004. See id. at § 161.004. We disagree.

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RELEVANT LAW

A party objecting to a charge must point out distinctly the objectionable matter

and the grounds of the objection. See TEX. R. CIV. P. 274. Any complaint as to an

instruction, on account of any defect, omission, or fault in pleading is waived unless

specifically included in the objections. Id. All objections to the jury charge that are not

presented to the court in writing or dictated to the court reporter in the presence of the

court and opposing counsel before the charge is read to the jury are waived. See id. at R.

272; see also TEX. R. APP. P. 33.1.

In civil appeals, the fundamental-error doctrine is a narrow and limited exception

to the procedural rules requiring parties to preserve error regarding their appellate

complaints. See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). We recently noted that in

civil cases, the fundamental-error doctrine has been found to apply in the following

situations:

(1) when the record shows on its face that the court rendering the judgment lacked
jurisdiction of the subject matter;

(2) when the alleged error occurs in a juvenile delinquency case and falls within a
category of error as to which preservation of error is not required; or,

(3) when the error directly and adversely affects the interest of the public
generally, as that interest is declared by a Texas statute or the Texas
Constitution.

In re T.B., 641 S.W.3d 535, 537 (Tex. App.—Waco 2022, pet. denied).

In the Interest of J.E.P., a Child Page 5
DISCUSSION

Father admits, and the record demonstrates, that this issue was not preserved for

appellate review. Father voiced no objections to the jury charge and did not offer any

requested instructions at trial. However, he argues that he overcomes the bar to appellate

review of unpreserved jury charge error because the omission of the Section 161.004

instruction should fall into the third category of recognized fundamental-error review in

civil cases. Father argues that when evidence relevant to termination under Section

161.004 is admitted at trial, it is error for the trial court not to instruct the jury on Section

161.004, even if that ground is not pled by the Department and the instruction is not

requested by any party.

Courts have consistently enforced procedural preservation rules regarding alleged

jury charge error in termination cases. See, e.g., In re J.F.C., 96 S.W.3d 256, 274-75 (Tex.

2002) (refusing to use fundamental-error review to circumvent Texas Rule of Civil

Procedure 279 when a party failed to object to the omission of an element of a claim); In

re J.M.H., No. 05-22-00167-CV, 2022 Tex. App. LEXIS 5482, 2022 WL 3040670, at *12-14

(Tex. App.—Dallas Aug. 2, 2022, pet. denied) (mem. op.) (explaining that failure to

submit a requested instruction according to the procedures outlined in Texas Rule of Civil

Procedure 278 precluded reversal). In addressing unpreserved jury charge error in a

termination case, the Supreme Court of Texas stated:

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In sum, we have not previously extended the fundamental-error doctrine
to this area of the law, and we are not persuaded to do so here. We are
aware of no precedent in either our criminal or civil jurisprudence that
informs the court of appeals' conclusion that "core" jury charge issues in
termination cases should be reviewed even when not preserved. Further,
we cannot see any reasonable, practical, and consistent way
of reviewing unpreserved complaints of charge error in termination cases
that satisfies our narrow fundamental-error doctrine.

B.L.D., 113 S.W.3d at 351. Father failed to preserve his complaint for our review, and the

error alleged by Father does not fall within the narrow scope of the fundamental-error

doctrine.

Accordingly, we overrule Father’s second issue.

Ineffective Assistance of Counsel

In his third issue, Father asserts that his trial attorney was ineffective for three

reasons: (1) failing to raise the jurisdictional issue asserted in his first issue on appeal; (2)

failing to object to the omission of an instruction on Section 161.004 in the jury charge,

and (3) failing to object to evidence that Father committed an act under Section 161.001

before a prior order denying termination of his rights. We disagree.

RELEVANT LAW

To prevail on an ineffective assistance of counsel claim in a termination case, the

appellant must satisfy both prongs of the test articulated by the United States Supreme

Court in Strickland v. Washington. In re D.T., 625 S.W.3d 62, 73 (Tex. 2021). It requires:

First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
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errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.

Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Our analysis under the first

prong must “take into account all of the circumstances surrounding the case” and

“indulge ‘a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance’ including the possibility that counsel’s actions are

strategic.” Id. at 73-74. It is only when "the conduct was so outrageous that no competent

attorney would have engaged in it," that the challenged conduct will

constitute ineffective assistance. Id. at 74-75. Under the second prong, an appellant must

show a reasonable probability that the proceeding would have turned out differently

without the deficient performance. Strickland, 466 U.S. at 694.

DISCUSSION

Jurisdiction

As previously addressed in our analysis of Father’s first issue, the trial court

acquired jurisdiction over this suit pursuant to Texas Family Code Section 155.103(a). See

TEX. FAM. CODE ANN. § 155.103(a). Counsel’s performance was not deficient for failing to

question the trial court’s jurisdiction.

Failure to Object to Evidence Pre-Dating Prior Final Order

Father argues that, because the Department did not plead Texas Family Code

Section 161.004 as a ground for termination, trial counsel was ineffective for failing to

object to evidence of Father’s acts and omissions preceding May 11, 2022, when he states

that a prior final order denying termination of his relationship to J.E.P. was rendered. See

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TEX. FAM. CODE ANN. § 161.004. Though details of prior termination cases involving

Father’s parental rights to J.E.P. were discussed throughout the trial, a prior final order

denying termination of Father’s rights to J.E.P. is not in the record.1

Regardless, in an ineffective-assistance analysis, an appellant bears the burden to

overcome the presumption that, under the circumstances, the challenged conduct might

be considered sound trial strategy. Strickland, 466 U.S. at 689. Father has failed to

overcome this presumption. The record supports that trial counsel used evidence of

Father’s history to make the point that “it’s not like the issues that [Father] struggled with

in this case, struggling with now, are things that weren’t there prior to that […] there’s a

history here, and despite that, everybody was on board with [J.E.P.] going back home to

[Father].” Father’s history – and the Department’s history of allowing J.E.P. to maintain

her relationship with Father – appeared to be central to trial counsel’s strategy at trial.

That Father’s appellate counsel might have chosen a different strategy had he served as

trial counsel does not render trial counsel’s strategy unreasonable. We do not find that

trial counsel’s performance was deficient for failing to object to evidence of Father’s acts

and omissions prior to May 11, 2022.

Failure to Object to Omission of Section 161.004 Instruction in Jury Charge

Father argues that trial counsel was ineffective for failing to object to the omission

of a Section 161.004 instruction in the jury charge because “[i]t resulted in the jury being

1Father’s appellate counsel filed a motion requesting to supplement the appellate record with documents
purportedly filed in the prior termination cases to support his claims, which this Court denied. In his brief
and through a separate motion, appellate counsel re-urges his motion to supplement the record. We deny
Father’s motion to reconsider his motion to supplement the record with these documents. See TEX. R. APP.
P. 34.1.

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able to consider all of [Father’s] prior acts or omissions.” See TEX. FAM. CODE. ANN. §

161.004. As discussed above, Father has not overcome the presumption that the

challenged conduct might be considered sound trial strategy. Further, the Department

did not plead Section 161.004 as a ground for termination. See id. We cannot say it was

necessarily unreasonable for trial counsel to fail to request inclusion of an additional

statutory ground for termination against his client.

Even assuming that trial counsel’s performance was deficient, Father has failed to

demonstrate a reasonable probability that the proceeding would have turned out

differently had the jury instruction been included. Section 161.004 is not the exclusive

means to terminate a parent’s rights to a child after rendition of a final order denying

termination of those rights. In re H.L.H., No. 10-16-00254-CV, 2018 Tex. App. LEXIS 1887,

2018 WL 1321750, at *45 (Tex. App.—Waco Mar. 14, 2018, no pet.) (mem. op.). Here, the

jury found that Father’s rights to J.E.P. should be terminated under Section 161.003 and

under multiple grounds in Section 161.001(b)(1). See TEX. FAM. CODE ANN. §§

161.001(b)(1), 161.003. On appeal, Father does not challenge the sufficiency of evidence

of his acts and omissions after May 11, 2022 to support those grounds. Further, at least

one of those grounds is based on evidence of Father’s acts or omissions after May 11, 2022

– Father’s failure to comply with the Family Service Plan under Section 161.001(b)(1)(O)

in the instant case by not completing psychological treatment. see In re J.S.S., 594 S.W.3d

493, 503 (Tex. App.—Waco 2019, pet. denied) (noting that only one predicate violation

finding is necessary for termination of parental rights when there is also a finding that

termination is in the child’s best interest).

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Accordingly, we overrule Father’s third issue on appeal.

Conclusion

Having overruled all of Father’s issues on appeal, we affirm the trial court’s

judgment.2

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed May 23, 2024
[CV06]

2 All pending motions are dismissed as moot.

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