Parental Rights Arguments Could Not Be Raised for First Time on Appeal; Ineffective Assistance Might Be Pressed Later Under Rule 60(b)
The juvenile court held a hearing on whether to terminate the father’s rights in his children. The father failed to appear at the hearing but, through his appointed counsel, moved to dismiss the proceeding for lack of notice. The court denied that motion and “relieved the father’s counsel of any further obligation to represent the father at the hearing.” Two days later, the court entered orders terminating the father’s parental rights. No post-judgment motion was filed, and the father appealed.
The Court of Civil Appeals affirmed the juvenile court. The appellate court first affirmed the lower court’s refusal to continue the hearing, and then turned to the father’s two “substantive arguments”: first, that the juvenile court had erred in dismissing his appointed counsel; and, second, that the lower court had wrongly terminated his parental rights. The Court of Civil Appeals held that neither issue was properly preserved. The father had made neither argument to the juvenile court, either at the hearing or by post-judgment motion. These contentions were thus rebuffed by the “oft-quoted and long-standing rule . . . that an appellate court may not consider an issue raised for the first time on appeal.” The issues were not “properly preserved,” did not “reflect any adverse ruling . . . preserved for appellate review,” and so, on direct appeal, could only attract a “summary affirmance.”
The father’s complaint about the dismissal of his lawyer, however, came in for further analysis. The Court of Civil Appeals explained that this contention might still be pressed — indeed, “would more properly be raised as” — an “ineffective-assistance-of-counsel argument” by a future motion under Rule 60(b). “[O]ur Supreme Court has explicitly endorsed the use of a Rule 60(b) motion as a valid method for challenging a termination judgment based upon claimed ineffective assistance of counsel.” Under Rule 60(b), then, the father could still “present[] a deprivation-of-counsel argument to the juvenile court so as to establish a record on which to base a possible future appeal.”
In this appeal, however, the judgment of the juvenile court was affirmed.