Ineffective assistance of counsel - May the claim be raised for the first time on appeal in a termination-of-parental-rights case?

Unfortunately, the Texas Supreme Court won't tell whether a complaint about lousy lawyering in a proceeding resulting in termination of the parent-child relationship may be made in the court of appeals, where right to appeal had been forfeited by counsel's failure to timely file statement of points in the trial court to satisfy statutory requirements for termination appeals.

SUPREMELY UNHELPFUL

For the second time this year, the Supremes have issued a (non) opinion declining review in a SAPCR case and going on the record with their express refusal to decide the merits of an issue of constitutional importance raised by the case:

In Interest of GB, No. 08-0380 (Tex. Aug. 29, 2008)(per curiam) (termination, ineffective counsel)
IN THE INTEREST OF G.B., P.B., N.B., AND V.R., CHILDREN; from Washington County; 1st district
(01-07-00699-CV, ___ SW3d ___, 04-03-08) Per Curiam Opinion

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PER CURIAM OPINION

The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding whether Texas Family Code section 263.405(i) prohibits an appellate court from considering an ineffective assistance of counsel claim that was raised for the first time on appeal.

OPINION DELIVERED: August 29, 2008

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ON PETITION FOR REVIEW FROM THE HOUSTON COURT OF APPEALS FOR THE FIRST DISTRICT:

Bernia v. Department of Family and Protective Services (Tex.App. - Houston [1st Dist.] 2008) (termination of parental rights, ineffective counsel) ("Because Bermea could not have prevailed on her legal and factual sufficiency arguments, we cannot say that the result of the proceeding would have been any different if she had had effective counsel. Therefore, Bermea did not suffer any harm from her counsel's deficient conduct.")