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Smith v. Texas Department of Protective and Regulatory Services9/11/2003
motion for new trial. The Department argues that a motion for new trial is a prerequisite to bringing a factual sufficiency complaint on appeal, even in cases involving termination of parental rights.
A motion for new trial is a prerequisite to preserve a factual sufficiency of the evidence complaint. Tex. R. Civ. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991); see also In re M.S., No. 02-0509, Tex. LEXIS 108, at *37 (July 3, 2003); In re A.F., No. 02-1167, Tex. LEXIS 119, at *2 (July 3, 2003) (parties preserved factual sufficiency complaint by filing motion for new trial). Whether a motion for new trial is required to preserve factual sufficiency complaints in cases involving termination of parental rights, however, is an issue that has divided the appellate courts. See In re J.F.C., 96 S.W.3d 256, 276 n.71 (Tex. 2002) (expressing no opinion on the appellate courts' holdings on the issue). Recently, the supreme court held that the right to counsel for indigent persons in parental-rights termination cases includes the right to effective assistance of counsel. In re M.S., Tex. LEXIS 108, at *27. In considering whether counsel is ineffective for failure to preserve a factual sufficiency complaint by filing a motion for new trial, the court opined that the State's interest "in maintaining the familial bond versus its interest in maintaining procedural integrity weighs in favor of permitting a factual sufficiency review when counsel unjustifiably fails to" file a motion for new trial. Id. at *43. When evidence fails clearly and convincingly to establish that parental rights should be terminated, the court recognized that a serious risk of erroneous deprivation of parental rights exists, and the procedural rule governing factual sufficiency preservation "must give way to constitutional due process considerations." Id. at *43-44. Although the supreme court discussed the rule governing factual sufficiency preservation in the context of the right to effective assistance of counsel, we believe those principles aptly apply in this case.
It is undisputed that appellants failed to file a motion for new trial in this case, and we are not presented with an ineffective assistance of counsel claim. Thus, unlike the supreme court in In re M.S., we do not address whether appellants' counsel was unjustified in failing to file a motion for new trial. The record reveals, however, that the Smiths did file a statement of points on which they intended to appeal, in which they included their allegation that the evidence was factually insufficient to support the jury's verdict. See Tex. Fam. Code Ann. § 263.405(b) (West 2002).
While the statement is not a motion for new trial, it did apprise the trial court of the Smiths' factual sufficiency complaint. Following the filing of this statement, the trial court was required to hold a hearing no later than the thirtieth day after it signed its final judgment to determine whether it should grant a new trial; this is so, even though the Smiths did not file a motion for new trial. See id. § 263.405(d). Given the supreme court's recent pronouncement regarding the importance of achieving a just and accurate decision in termination of parental rights cases and the Smiths' filing of a statement of points they intended to appeal, including a factual sufficiency point, we will review the Smiths' factual sufficiency complaint.
Standard of review
The natural right existing between a parent and child is of constitutional dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The United States Supreme Court has characterized the right to raise one's child as essential--a basic civil right far more precious than property rights. St
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