Reversed and Remanded and Opinion Filed January 15, 2014 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

_______________________________ 

No. 05-13-00692-CV 

_______________________________ 

IN THE INTEREST OF N.L.T., A CHILD 

On Appeal from the 256th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DF04-10316-Z 

No. 05-13-00693-CV 

IN THE INTEREST OF M.T., A CHILD 

On Appeal from the 302nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DF06-08087-U 

OPINION 

Before Justices Francis and Lang-Miers, and Chief Justice Thomas, Ret.1 

Opinion by Chief Justice Thomas 

In September 1987, sixteen-year-old S.T. (Mother), unrepresented by counsel, had a 

default judgment rendered against her terminating her parental rights to her ten-month-old 

daughter. More than twenty-five years later, the Texas Department of Family and Protective 

Services relied on that default judgment as the sole substantive ground for terminating Mother’s 

 1

 The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas – Dallas, Retired, sitting by 

assignment. 
 –2– 

parental rights to her two children, N.L.T. and M.T. The cases were consolidated for trial before 

the court. The trial court found in the Department’s favor and terminated Mother’s parental 

rights. 

Among other things on appeal, Mother argues she received ineffective assistance when 

her appointed counsel failed to challenge the statute under which her parental rights were 

terminated as an unconstitutional retroactive law as applied to her. After reviewing the record 

and for reasons set out below, we agree with Mother. Accordingly, we reverse the trial court’s 

judgments and remand for a new trial. 

BACKGROUND

In December 2009, the Department received several referrals that N.L.T. and M.T., ages 

six and four respectively, were living in unsanitary and unstable conditions with Mother, who 

had been diagnosed as bipolar with schizophrenic features. According to the referrals, Mother 

was not taking her medications and was “exhibiting increasing signs of paranoia and mental 

instability.” After investigating, the Department took custody of the children and filed a suit 

affecting the parent-child relationship. The parties ultimately reached an agreement to appoint a 

maternal aunt as sole managing conservator of the children and to give Mother supervised 

visitation. The trial court rendered an order in December 2010 adopting the terms of the parties’ 

agreement. Sometime thereafter, Mother moved in with the aunt and the children. 

In March 2012, the Department removed the children from the aunt’s custody when it 

discovered the aunt was physically abusing and starving M.T. At the time of the removal, 

Mother was a patient in Green Oaks Hospital. The Department moved for conservatorship of 

both children and sought to terminate Mother’s parental rights if reunification could not be 
 –3– 

achieved.2

 As grounds for termination, the petition alleged eighteen of the twenty statutory 

substantive grounds set out in section 161.001(1) of the Texas Family Code: (A), (B), (C), (D), 

(E), (F), (G), (I), (J), (K), (L), (M), (N), (O), (P), (Q), (R), and (S). See TEX. FAM. CODE ANN.

§ 161.001(1) (West Supp. 2013). At trial, however, the State abandoned all grounds for 

termination except subsection (M), which authorized the trial court to terminate the parent-child 

relationship if it found by clear and convincing evidence that the parent “had his or her parentchild relationship terminated with respect to another child based on a finding that the parent’s 

conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law 

of another state” and that termination was in the child’s best interest. Id. § 161.001(1)(M), (2). 

Grounds (D) and (E) allow termination of parental rights when a parent has engaged in conduct 

or placed a child with another who engaged in conduct that endangered the child’s physical or 

emotional well-being. See id. § 161.001(1)(D), (E). 

Briefly, the evidence at trial and at the new-trial hearing in these cases showed Mother 

gave birth to a baby girl in October 1986 when she was sixteen and using cocaine. She admitted 

the child was born with cocaine in her system. When the child developed respiratory problems 

in January 1987, Mother took the child to the hospital, and the doctors found burns on the child’s 

back that Mother could not explain. The doctors referred the child to the Department, and 

Mother’s parental rights to the child were terminated in September 1987. In the termination 

decree, the trial court found Mother had “knowingly placed and knowingly allowed the child to 

remain in conditions and surroundings which endanger the physical and emotional well-being of 

the child, and has engaged in conduct . . . which endangers the physical and emotional wellbeing of the child.” Mother testified at the trial in this case that the child was not burned; rather, 

 2

 The rights of the biological fathers were also terminated but are not issues in these appeals. 
 –4– 

she explained the child had “so much cocaine in her system, the stuff had to come out [of] her 

system [and] left marks on both side[s] of her” body. 

With regard to N.L.T. and M.T., the children the subject of this suit, the Department 

stipulated at trial that Mother “had no fault at all in the current removal.” However, the 

Department presented evidence that since 2009, Mother voluntarily admitted herself to Green 

Oaks on five separate occasions when she was stressed or upset and needed time “to gather [her] 

thoughts.” Mother testified she suffered a nervous breakdown in 1992 when her father died and 

again in 2010. Medical testimony showed Mother was diagnosed with schizoaffective and 

bipolar disorders, but she denied the need for antipsychotic medication and declined 

prescriptions for those symptoms. The month before trial, Mother tested positive for use of 

cocaine and benzoylecgonine. She admitted regular use of marijuana but denied using cocaine 

after 1990. She said her ex-boyfriend was a cocaine dealer and the cocaine got in her hair and on 

her “hands and stuff like that” because of her association with him. 

The evidence also showed that M.T. was diagnosed with autism, but Mother believed his 

behavior was related to a hearing problem. She said M.T. was diagnosed with mental retardation 

and “autistic ways” but not “per say [sic] autistic.” However, she testified that she planned to 

send M.T. to a school for autistic children because “[t]hey keep saying that he’s autistic[.]” The 

evidence showed that M.T.’s behavior had improved considerably after being placed in a foster 

home experienced with autistic children. 

N.L.T. was in the foster home with M.T. for six months but was removed “for a variety 

of behaviors” described as “red flags.” In particular, N.L.T. was “acting out” sexually towards 

the boys in the home, wrote “sexually explicit things” on her bedroom furniture, and smeared 

feces on the wall of her bedroom and on her sheets. Ultimately, she was placed in Timberlawn 

Hospital, where it was determined she “was having signs of schizophrenia” and needed a “more 
 –5– 

structured environment.” At the time of trial, N.L.T. was at a treatment facility, where she was 

taking psychotropic medications and receiving intense therapy. There was no time frame for her 

release from the facility because it depended on her improvement. 

Finally, Mother’s criminal history presented in evidence at trial included convictions for 

aggravated robbery and credit card abuse in 1987, theft and escape in 1990, aggravated assault 

on a correctional officer in 1992, disorderly conduct in 2005, and felony theft in 2011. 

CONSTITUTIONALITY OF SUBSECTION (M) AS APPLIED TO MOTHER 

In her first issue, Mother argues the trial court’s application of family code section 

161.001(1)(M) to her, by using the 1987 termination of her parental rights to her first child as the 

ground for terminating her rights to her children in 2013, violated the Texas Constitution’s 

prohibition against retroactive laws. The State argues Mother did not present this issue below 

and, consequently, it is not preserved for our review. 

We agree the as-applied constitutional issue was not preserved by trial counsel. Mother 

does not cite the record where she raised the issue below and, in fact, argues her trial counsel was 

ineffective because she did not raise the issue in the trial court. As a general rule, a party must 

raise an issue below to preserve it for review on appeal. See TEX. R. APP. P. 33.1. This rule 

applies to constitutional issues. See In re S.A.S., 200 S.W.3d 823, 826 (Tex. App.—Beaumont 

2006, pet. denied). Consequently, we conclude Mother did not preserve this issue for our review. 

However, in her second issue, Mother argues trial counsel was ineffective for failing to 

raise the issue of the constitutionality of subsection (M). The State contends this also was not 

preserved, but we disagree. Mother’s motion for new trial raised the issue of the constitutionality 

of subsection (M) under her ineffective assistance of counsel claim, and we will address the 

constitutionality issue under that claim. 
 –6– 

Applicable Law and Standard of Review 

An indigent parent is entitled to appointed counsel in parental rights termination cases, 

and that statutory right “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 250, 

253–54 (Tex. 2010). In evaluating the effectiveness of counsel in such cases, the Texas Supreme 

Court has adopted the Strickland test that sets standards for effective assistance in criminal cases. 

See In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984)). 

Under Strickland, to prevail on a claim of ineffective assistance of counsel, an appellant 

must show that trial counsel’s performance was deficient and that this deficiency prejudiced the 

defense. Id. (citing Strickland, 466 U.S. at 687–88). Both prongs of the inquiry must be 

established. Id. The Strickland standard requires a showing that counsel’s errors were serious 

enough to deprive the appellant of a fair trial whose result is reliable. Strickland, 466 U.S. at 

687. 

In evaluating a claim in a particular case, we consider all of the circumstances 

surrounding the case, and must primarily focus on whether counsel performed in a “reasonably 

effective manner.” In re M.S., 115 S.W.3d at 545. In doing so, we must indulge in the 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance. Id. Counsel’s performance falls below acceptable levels when the “representation is 

so grossly deficient as to render the proceedings fundamentally unfair . . . .” Id. (quoting Brewer 

v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). 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. While a single error will not typically result in a finding 

of ineffective assistance of counsel, an egregious error may satisfy the Strickland prongs on its 

own. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). 
 –7– 

Because Mother presented her ineffective assistance of counsel claim in a motion for new 

trial, which the trial court orally denied after a hearing, we analyze the issue as a challenge to the 

denial of her motion for new trial. Walker v. Dep’t of Family & Protective Servs., 312 S.W.3d 

608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). We apply the Strickland test 

through an abuse of discretion standard and reverse only if the trial court’s decision is arbitrary 

or unreasonable, viewing the evidence in the light most favorable to the ruling Id. We give 

almost total deference to the trial court’s determination of historical facts that are supported by 

the record. Id. But, a trial court has no discretion in determining what the law is and abuses its 

discretion if it interprets or applies the law incorrectly. In re Dep’t of Family & Protective 

Servs., 273 S.W.3d 637, 642–43 (Tex. 2009) (orig. proceeding). 

Discussion 

The plain wording of subsection (M) authorizes termination of parental rights if a parent 

has had her rights to another child terminated previously based on a finding that the parent’s 

conduct violated subsection (D) or (E) and a finding that termination is in the best interest of the 

child. TEX. FAM. CODE ANN. § 161.001(1)(M), (2). It is undisputed that subsection (M) did not 

exist when Mother’s rights to her other child were terminated in 1987.3

 To support her argument 

that subsection (M) is unconstitutional as applied to her, Mother relies on the prohibition against 

retroactive laws in the Texas Constitution, which states that “[n]o bill of attainder, ex post facto 

law, retroactive law, or any law impairing the obligation of contracts, shall be made.” TEX.

CONST. art. 1, § 16. The Department concedes the statute “looks backward” and retroactivity 

 3

 Subsection (M) was enacted in 1989. See Act of May 24, 1989, 71st Leg., R.S., ch. 808, § 1, 1989 Tex. Gen. Laws 3673, 3674 (current 

version at TEX. FAM. CODE ANN. § 161.001(1)(M)). 
 –8– 

“seems to be implicit in the statute,” but it argues the best interest of the child is “a recognized 

exception” to the prohibition against unconstitutional retroactive laws. 

A retroactive law literally means a law that acts on things which are past. Subaru of Am., 

Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002). But mere retroactivity is 

not sufficient to invalidate a statute. Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 139 

(Tex. 2010). Most statutes operate to change existing conditions, and not every retroactive law is 

unconstitutional. Id.

In Robinson, the supreme court engaged in a lengthy analysis of retroactive laws, 

observing that the presumption against retroactivity has “two fundamental” objectives: (1) it 

protects the people’s reasonable, settled expectations, and (2) it protects against abuses of 

legislative power. Id. Although the court recognized that no bright-line test for unconstitutional 

retroactivity is possible, it stated that, in determining whether a statute is unconstitutionally 

retroactive, we must consider three factors in light of the prohibition’s dual objectives: (1) the 

nature and strength of the public interest served by the statute as evidenced by the Legislature’s 

factual findings, (2) the nature of the prior right impaired by the statute, and (3) the extent of the 

impairment. Id. at 145. As reasoned by the court: 

The perceived public advantage of a retroactive law is not simply to be balanced 

against its relatively small impact on private interests, or the prohibition would be 

deprived of most of its force. There must be a compelling public interest to 

overcome the heavy presumption against retroactive laws. To be sure, courts 

must be mindful that statutes are not to be set aside lightly. . . . But courts must 

also be careful to enforce the constitutional prohibition to safeguard its objectives. 

Id. at 145–46. 

Nature of Prior Right Impaired and Extent of Impairment 

Using the standards set out above, we begin, as the supreme court did, by first 

considering the nature of the rights claimed by Mother and subsection (M)’s impact on them. 

See id. at 147. 
 –9– 

Mother argues it is undisputed that her right “in the care, custody, and control of [her] 

children is perhaps the oldest of the fundamental liberty interests recognized.” The supreme 

court has agreed that a parent’s right to rear her child is “fundamental,” “one of constitutional 

dimensions,” and “far more precious than any property right[.]” See id. at 145 (citations 

omitted); In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). And it has recognized that a termination 

proceeding “seeks not merely to infringe that fundamental liberty interest, but to end it.” In re 

J.F.C., 96 S.W.3d at 273 (quoting Santosky v. Kramer, 455 U.S. 745, 759 (1982)). Consequently, 

the court has stated that “the private interest in a parental termination case [is] ‘a commanding 

one.’” Id. (quoting Santosky, 455 U.S. at 759). Termination of the parental relationship “is 

complete, final, irrevocable. It divests for all time the parent and child of all legal rights, 

privileges, duties, and powers with respect to each other.” Wiley v. Spratlan, 543 S.W.2d 349, 

352 (Tex. 1976). 

The Department concedes that Mother’s “interest in her children [is] a strong right and 

termination acts to impair that interest,” but it does not engage in any analysis beyond its 

argument that “in light of the facts of the case, the application of subsection (M) [is] not 

unconstitutionally retroactive.” It argues “subsection (M) is not taken in a vacuum, [and] it is the 

existence of the acts which caused the original termination coupled with a continuing pattern of 

endangering conduct that supports the termination.” At oral argument, the Department argued 

we must also consider evidence related to the best interest of the children when determining the 

constitutionality of subsection (M). The Department has not cited any case to support this 

argument. 

The law is settled that in proceedings to terminate the parent-child relationship brought 

under section 161.001 of the family code, the petitioner must establish one ground listed under 

subdivision (1) of the statute and must also prove that termination is in the best interest of the 
 –10– 

child. TEX. FAM. CODE ANN. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). In other 

words, the state agency seeking termination must prove both that the parent engaged in conduct 

proscribed by the statute and best interest. Both elements must be established; termination may 

not be based solely on the best interest of the child as determined by the trier of fact. See Tex. 

Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 

Thus, to the extent the State argues evidence on best interest of the children can somehow 

be used to correct any constitutional infirmities on the substantive ground, we cannot agree. To 

do so would allow the State to use best interest impermissibly to perform “double duty” when 

terminating parental rights. In summary, we conclude that subsection (M) significantly impacts 

Mother’s fundamental right to raise her children. 

Nature of Public Interest

We next consider the nature of the public interest and the extent to which subsection (M) 

serves that interest. Although we have no legislative findings regarding subsection (M), Mother 

cites a bill analysis reflecting that the statute was “primarily aimed at protecting newborn 

children of known child abusers” and “would allow a court to take a child away from a parent 

already judged to be a child abuser or murderer, terminate parental rights, and allow that child to 

be adopted into a safer environment.” See House Comm. on Judicial Affairs, Bill Analysis, Tex. 

H.B. 581, 71st Leg., R.S. (1989). Mother argues because her children were not newborns, the 

Department’s interest is served by the numerous other provisions of section 161.001(1) and its 

interest in subsection (M) as applied to her is slight at best. 

The Department counters by asserting the public’s general interest in protecting children. 

It argues subsection (M) allows the Department “to act before a child is actually harmed when a 

parent has had her rights previously terminated for harming another child.” The Department’s 

argument, however, ignores the fact it relied on Mother’s conduct more than twenty-five years 
 –11– 

ago as the sole substantive ground to terminate her rights to N.L.T. and M.T., and not when the 

children were newborns, but when they were eight and nine years old. And the Department 

stipulated that Mother’s conduct now was not the basis for the removal of N.L.T. and M.T. 

While we agree the safety and welfare of children are significant interests that need 

protection, those interests are weakened when, as here, the termination is based on conduct that 

occurred more than a quarter of a century ago. As Robinson explained, “[e]lementary 

considerations of fairness dictate that individuals should have an opportunity to know what the 

law is and to conform their conduct accordingly[.]” Robinson, 335 S.W.3d at 139 (quoting 

Landgraf v. USI Film Prods., 511 U.S. 244, 265–66 (1994)). At the time Mother’s parental 

rights to her first child were terminated, subsection (M) had not been enacted. And, there was 

nothing she could do to conform her conduct to the statute once it was enacted. Moreover, it is 

difficult to imagine that Mother could have expected such a result. 

The supreme court recognized 

that an important reason for the constitutional prohibition against retroactive laws 

is to preempt this weighing of interests absent compelling reasons. Indeed, it is 

precisely because retroactive rectification of perceived injustice seems so 

reasonable and even necessary, especially when there are few to complain, that 

the constitution prohibits it. 

Id., 335 S.W.3d at 150. We conclude the Department’s reliance on subsection (M) as the sole 

ground for termination in this case is an unconstitutional retroactive application of the law as 

applied to Mother. The Department’s argument that we must consider the current circumstances 

in our analysis would result in a “weighing of interests absent compelling reasons” and we 

decline to do so. We conclude the public interest in applying subsection (M) to the facts of this 

case are slight. 

Considering the Robinson factors in light of the dual objectives in prohibiting retroactive 

laws, we conclude that subsection (M) is unconstitutionally retroactive as applied to Mother. 
 –12– 

Consequently, trial counsel was deficient in failing to raise the issue at trial. Because subsection 

(M) was the only ground relied upon for termination, we further conclude counsel’s failure to 

raise the issue was prejudicial. We sustain the second issue. Our disposition of the second issue 

makes it unnecessary to discuss any of the other issues raised in Mother’s brief. 

We reverse the trial court’s judgments terminating Mother’s rights to N.L.T. and M.T. 

and remand for a new trial to commence no later than 180 days after the mandate is issued by 

this Court. See TEX. R. APP. P. 28.4. 

130692F.P05 

 

/Linda Thomas/ 

LINDA THOMAS 

CHIEF JUSTICE, Retired 
 –13– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF N. L. T., A CHILD 

No. 05-13-00692-CV 

 On Appeal from the 256th Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. DF04-10316-Z. 

Opinion delivered by Chief Justice Thomas, 

Ret.; Justices Francis and Lang-Miers 

participating. 

 In accordance with this Court’s opinion of this date, the trial court’s April 29, 2013 

Decree of Termination is REVERSED and this cause is REMANDED to the trial court for a 

new trial to commence no later than 180 days after the mandate is issued by this Court. See TEX.

R. APP. P. 28.4. 

Judgment entered this January 15, 2014 

 

/Linda Thomas/ 

LINDA THOMAS 

CHIEF JUSTICE, RET. 
 –14– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF M.T., A CHILD 

No. 05-13-00693-CV 

 On Appeal from the 302nd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. DF06-08087-U. 

Opinion delivered by Chief Justice Thomas, 

Ret.; Justices Francis and Lang-Miers 

participating. 

 In accordance with this Court’s opinion of this date, the trial court’s April 29, 2013 

Decree of Termination is REVERSED and this cause is REMANDED to the trial court for a 

new trial to commence no later than 180 days after the mandate is issued by this Court. See TEX.

R. APP. P. 28.4. 

Judgment entered January 15, 2014 

/Linda Thomas/ 

LINDA THOMAS 

CHIEF JUSTICE, RET.