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Family Law No. 01-0882, 7/3/2003. Click here for the full text of this decision FACTS: Following a jury verdict, the trial court terminated the parental rights of Jimmy and Spring Dossey to two of their children. The court of appeals reversed the trial court’s judgment on two grounds, holding that 1. the Dosseys were deprived of a constitutional right to effective assistance of counsel due to their joint representation by an appointed attorney when there was a conflict of interest between them; and 2. the form of the jury charge violated the Dosseys’ constitutional rights. HOLDING: Reversed and remanded. The Texas Department of Protective and Regulatory Services first contends that the court of appeals erred in holding there is a constitutional right to effective assistance of counsel in parental rights termination cases. The court observes as a preliminary matter that the Dosseys did not assert in the court of appeals a constitutional right to effective assistance of counsel. Instead, the Dosseys argued that the trial court erred in failing to appoint separate counsel or grant separate trials because their interests conflicted. The court of appeals sua sponteframed this issue as whether there is a due process right to effective assistance of counsel at trial in parental rights termination cases. The court holds that a trial court must determine whether there is a substantial risk that a lawyer’s obligations to one parent would materially and adversely affect his or her obligations to the other parent when deciding whether there is a conflict of interest between parents opposing termination in a single suit. In evaluating whether there is a substantial risk of a conflict of interest before trial, the trial court should consider the available record to determine the likelihood that the parents’ positions will be adverse to each other. For example, when reviewing a record of pre-trial proceedings, the trial court may consider the department’s allegations in the petition against each parent, evidence adduced during pre-trial hearings and the parents’ statements and positions taken in the course of pre-trial proceedings. The court reviews a trial court’s determination of whether there was a conflict of interest for an abuse of discretion. The court concludes that the trial court did not abuse its discretion in denying Gerald Villarrial’s (the Dosseys’ appointed attorney) second motion for separate trials based on a conflict of interest. The department contends that the court of appeals erred in holding that the jury charge was fatally defective. The trial court submitted a jury charge with the two statutory grounds alleged against the parents in the disjunctive, and with broad-form jury questions regarding whether the parent-child relationships should be terminated. Texas Rule of Civil Procedure 277. The court of appeals held that the charge violated the Dosseys’ due-process right to have at least ten jurors agree on either or both statutory grounds supporting termination. The court has not previously extended the fundamental-error doctrine to this area of the law and is not persuaded to do so here. The court is aware of no precedent in either criminal or civil jurisprudence that informs the court of appeals’ conclusion that “core” jury charge issues in termination cases should be reviewed even when not preserved. Further, the court cannot see any reasonable, practical and consistent way of reviewing unpreserved complaints of charge error in termination cases that satisfies the narrow fundamental-error doctrine. The court concludes that the fundamental-error doctrine does not permit appellate review of the complaint of unpreserved charge error in this case. The Dosseys do not claim that Villarrial’s failure to preserve charge error constituted ineffective assistance. Indeed, the record demonstrates that Villarrial zealously acted to protect the Dosseys’ interests and that he preserved various evidentiary and sufficiency points for appellate review. Furthermore, the charge in this case follows this court’s precedent in Texas Department of Human Services v. E.B., 802 S.W.2d 647 (Tex. 1990) (op. on reh’g), tracks the statutory language of the Family Code, and comports with Texas Rules of Civil Procedure 277 and 292. Under these circumstances, the court holds that a court of appeals must not retreat from error-preservation standards to review unpreserved charge error in parental rights termination cases. The court of appeals therefore erred in reviewing the unpreserved complaint on the jury charge. OPINION: Wainwright, J., delivered the opinion of the court.

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