Valencia v. DFPS (pdf) (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Jennings)
(
termination of father's parental rights based on prior criminal conduct reversed, ineffective assistance of
counsel)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Jennings    
Before Justices Jennings, Higley and Sharp  
01-08-00345-CV  Joe Lewis Valencia v. Department of Family and Protective Services   
Appeal from 313th District Court of Harris County
Trial Court Judge:  Hon. Pat Shelton

O P I N I O N

    The Texas Department of Family and Protective Services (“DFPS”) filed a motion for en banc rehearing. We
withdraw our December 22, 2009 opinion, substitute this opinion in its place, and vacate our December 22,
2009 judgment. We dismiss the motion for en banc rehearing as moot. See City of Houston v. Buttitta, 274 S.W.
3d 850, 851 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

    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 had endangered the child and that termination of his parental rights is
in the child’s best interest. Footnote

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

    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. Footnote 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,
Footnote 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, Footnote 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 the “emotional stability” of the child would 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.” Footnote

    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. Footnote 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 he 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 (1984); United States v. Cronic, 466 U.S. 648, 654–55,
104 S. Ct. 2039, 2044 (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. Footnote 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 supreme 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 on 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 the 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, 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 (Vernon 2005); 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 submitted 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 had already agreed to relinquish
her parental rights. Footnote

    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,
the record 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. Footnote

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 (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 (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 DFPS 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

    We note that in order to terminate the parent-child relationship on the ground that a parent has “knowingly
engaged in criminal conduct,” DFPS must prove that the criminal conduct has resulted in the parent’s:

     (i) conviction of an offense; and

    (ii)     confinement or imprisonment and inability to care for the child for not less than two years from the
date of [DFPS’s] filing [of its] petition.

Tex. Fam. Code Ann. § 161.001(1)(Q) (emphasis added). Here, however, DFPS did not allege that Valencia
had “knowingly engaged in criminal conduct.” Rather, DFPS alleged and 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 id. § 161.001(1)(E) (emphasis added). In support of this
finding, DFPS relied solely on Petitioner’s Exhibit No. 1, the packet 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 had already agreed to relinquish her parental rights.

    Setting aside the statutory requirements of section 161.001(1)(Q) and disregarding the fact that the
uncertified criminal history records were inadmissible, Footnote we recognize that intentional criminal activity
that 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 relevant). 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). Imprisonment is a “factor to be considered
. . . on the issue of endangerment.” Boyd, 727 S.W.2d at 533. 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)] Footnote is supportable.

Id. 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).

    In Boyd, the trial court entered a decree terminating Boyd’s parental rights based on a finding that he had
engaged in conduct or knowingly placed his child with persons who had engaged in conduct that endangered
the child. Boyd, 727 S.W.3d at 532. The supreme court expressly disapproved of the intermediate court of
appeals’ definition of “danger” and its holding that danger cannot be inferred from parental misconduct. Id. at
533. The gist of Boyd is that to constitute endangerment, it need not be shown that a parent’s conduct was
directed at the child or that the child actually suffered an injury. Id.

    The evidence presented at trial showed that Boyd had been arrested and jailed for the then first degree
felony offense of burglary two days before the child’s birth; after Boyd was paroled, he lived with the child for
five months; he intermittently held three different jobs while out on parole; and, within four months, Boyd was
again convicted of another burglary offense and sentenced to five years in prison. Id. At the time the child was
taken by DFPS, he had emotional problems, which included sleep disorders, dietary issues, bed-wetting
problems, and temper tantrums. Id. The supreme court did not hold that this evidence was legally sufficient to
support the trial court’s finding that Boyd had endangered the child; rather, it remanded the case to the court of
appeals to consider the issue. Id. at 534. However, the court of appeals did not issue a new opinion on remand.

    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. Unlike Boyd, Valencia was not, after the birth of his child, convicted of a first degree
felony and sentenced to five years in prison. See id. at 533. In fact, Valencia had, at the time of trial, last been
convicted of a state jail felony offense on September 23, 2004, more than two years prior to the child’s birth.
Here, Washington, in response to a leading question, merely made the conclusory assertion that because he
had a “repeated criminal history,” Valencia had engaged in conduct that endangered the physical and
emotional well-being of the child. DFPS did not adduce any evidence to explain how Valencia’s criminal history
had endangered 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 that 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. He was not sentenced to prison as was Boyd.
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. Footnote In regard 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.

    DFPS, disregarding the statutory requirements of section 161.001(1)(Q), argues that a history of
incarceration for criminal offenses alone can support a finding of endangerment under 161.001(1)(E). In
support of its argument, DFPS relies on 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 J.T.G., 121 S.W.3d 117, 113 (Tex. App.—Fort Worth 2003, no
pet.), In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), In re T.D.C., 91 S.W.
3d 865, 873, 880 (Tex. App.—Fort Worth 2002, pet. denied), and In re S.D., 980 S.W.2d 758, 763 (Tex. App.—
San Antonio 1998, 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
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); 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); Allred, 615 S.W.2d at 806 (criminal history plus evidence that father beat
mother after he learned she was pregnant and threatened to throw mother down stairs to cause miscarriage);
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 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 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); 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); and 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). Footnote

    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).

    For example, in In re J.N.R., this Court held that the evidence was legally sufficient to support the trial court’s
finding that a father had endangered his child, when, while on parole and participating in a DFPS family service
plan, the father, “after knowing that his parental rights were in jeopardy . . . continued to engage in criminal
activity that resulted in his being jailed.” 982 S.W.2d 137, 142 (Tex. App.—Houston [1st Dist.] 1998, no pet.),
overruled on other grounds, In re C.H.,

89 S.W.3d 17 (Tex. 2002). After the father was released from prison and placed on parole, he became an
active parent in his child’s life for five months. Id. at 140. The father, working with DFPS, agreed to and signed
a family service plan, which “required him to stay out of jail, participate in his parole tasks, develop his
relationship with [the child], and maintain his employment.” Id. The father failed to comply with his agreement
when he was arrested on three separate occasions while on parole. Id. at 142. At the time of his last arrest, he
was outside the area to which he was restricted under the terms of his parole, and, understandably, his parole
officer testified that he was seeking a revocation of the father’s parole. Id. Accordingly, we concluded that this
evidence showed that the father, while on parole and after agreeing to the requirements of the family service
plan, “continued to engage in conduct that would endanger the emotional well-being of the child.” Footnote Id.

    In this case, the record shows that DFPS created a family service plan for Valencia in January 2007 prior to
the establishment of his parentage. 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 even agreed to the plan. Nor is there any evidence 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. Here, unlike
in In re J.N.R., there is no evidence that Valencia’s criminal history constituted a course of endangering conduct.

    DFPS now additionally contends on appeal that Valencia engaged in endangering conduct through 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]”; whereas, at trial, DFPS relied only on Valencia’s criminal
history to support the trial court’s finding under section 161.001(1)(E). 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 alone
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.

    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 had already agreed to relinquish
her parental rights. Moreover, the record conclusively establishes that Valencia 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. See Tex. Fam. Code Ann. §
161.001(1)(E). 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 that portion of the trial court’s decree terminating Valencia’s parental rights to the child and we
render judgment that his parental rights to the child are not terminated.

                                                                  Terry Jennings

                                                                  Justice

Panel consists of Justices Jennings, Higley, and Sharp.