in the Interest of M.M., D.L., J.L., N.L., and D.L., Children ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00153-CV
___________________________
IN THE INTEREST OF M.M., D.L., J.L., N.L., AND D.L., CHILDREN
On Appeal from the 233rd District Court
Tarrant County, Texas
Trial Court No. 233-679137-20
Before Kerr, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
J.M (Mother) and J.L. (Father) signed irrevocable affidavits relinquishing their
parental rights to their children, M.M. (Matt), D.L. (Dan), J.L. (Jane), N.L. (Nate), and
D.L. (Dave).1 Based on these affidavits and findings that termination of Mother’s and
Father’s parental rights was in the children’s best interest, the trial court terminated
Mother’s and Father’s parental rights and appointed the Department of Family and
Protective Services as the children’s permanent managing conservator.
In this ultra-accelerated appeal, 2 Father raises four issues. His first three issues
challenge the trial court’s finding that he executed an unrevoked or irrevocable
affidavit of relinquishment, and he argues in his fourth issue that his appointed trial
counsel was ineffective. Mother’s appointed appellate counsel has filed an Anders
brief. We will affirm the trial court’s termination order.
I. Background
In September 2019, the Department sued for temporary managing
conservatorship of the children to ensure their immediate safety because of “ongoing
concerns [of] physical abuse, physical neglect[,] and neglectful supervision of the
1
We refer to the children using aliases and to other family members by their
relationship to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
2
See Tex. R. Jud. Admin. 6.2(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.
F app. (requiring appellate court to dispose of appeal from judgment terminating
parental rights, so far as reasonably possible, within 180 days after notice of appeal is
filed).
2
children.” The children were removed, and the trial court signed an order appointing
the Department as the children’s temporary managing conservator. Shortly thereafter,
the Department amended its petition to seek termination of Mother’s and Father’s
parental rights.
The case was tried to the bench on May 7, 2021.3 Mother and Father were each
represented by appointed counsel. At the start of trial, the trial court bench-filed
Mother’s and Father’s irrevocable relinquishment affidavits, which the parents had
executed earlier that day.
Ramon Hodridge, a permanency specialist with Our Community Our Kids
(OCOK), 4 testified that the children were removed from the home in September
3
In late July 2020, the trial court timely signed an order extending the case’s
dismissal date to March 4, 2021, and setting the case for trial on January 26, 2021. See
Tex. Fam. Code Ann. § 263.401(a), (b). But instead of trying the case on January 26,
2021, the trial court signed an order retaining the case on its docket pursuant to the
Texas Supreme Court’s Thirty-Third Emergency Order Regarding the COVID-
19 State of Disaster, which allowed the trial court in “any [termination] case
previously retained on the court’s docket pursuant to [Family Code] Section
263.401(b) . . . [to] extend the dismissal [date] for an additional period not to exceed
180 days” from January 14, 2021, in order “to avoid risk to court staff, parties,
attorneys, jurors, and the public.” See Thirty-Third Emergency Order Regarding the COVID-
19 State of Disaster, Misc. Docket No. 21-9004, ¶3.b(ii) (Tex. Jan. 14, 2021). The trial
court thus extended the dismissal date to July 13, 2021, and set the trial for May 7,
2021. See id.
4
OCOK is a private provider of community-based care that contracts with the
Department to provide “foster care case management, kinship, and family
reunification services” in parts of the state, including Tarrant County. See Tex. Dep’t
of Family & Protective Servs., https://content.govdelivery.com/accounts/
TXDFPS/bulletins/27e68be (last visited Oct. 12, 2021); see also Tex. Fam. Code Ann.
3
2019 because of concerns about the children’s living environment, the home’s
condition, and the parents’ physically abusing the children. When the children were
brought into the Department’s care, Matt, Dan, and Jane had significant marks and
bruises all over their bodies. As a result, Mother and Father had pending criminal
charges for injury to Dan and Jane. Because of the bond conditions in their criminal
cases, the parents had not visited any of the children since late fall 2019.
Hodridge testified that, during the case, the parents were provided with service
plans that allowed them to work services toward possible reunification with the
children. Although the parents had worked services, the Department was concerned
that they had not accepted responsibility for the children’s injuries and were not able
to meet their children’s needs, which are significant. According to Hodridge, then-
eight-year-old Nate and then-five-year-old Dave have “very significant delays and
cognitive deficiencies,” and neither boy is potty trained. The boys’ foster mother—
who was adoption motivated and able to meet the boys’ current and future
therapeutic and emotional needs—thought that the boys would never be able to be
potty trained.
Hodridge also testified that the parents had primarily physically abused the
three older children—Matt, Dan, and Jane—who also had engaged in “bouts of self-
§§ 264.151–.170 (describing and providing requirements for Department oversight of
private community-based-care system for the State of Texas).
4
inflicted harm” and had claimed that they wanted to die. 5 All three children needed
long-term counseling and care. Jane, who was 10 years old at the time of trial, had
been placed in a “therapeutic foster home.” She had “suffered a lot of trauma,” had
behavioral issues, and required “a lot of support and care.” On the day of trial, she
was being transported to a psychiatric hospital for treatment. Then-11-year-old Dan
had been placed in a residential treatment center. Dan had “a lot of anger issues and a
lot of trauma” that he was processing. The Department’s plan for Jane and Dan was
to eventually find adoptive placements for them.
Then-12-year-old Matt was in a long-term foster home that was not adoption
motivated. But the foster home was meeting Matt’s needs and ensuring that Matt
received needed therapy. And although the Department’s goal for Matt was adoption,
Hodridge understood that Matt “feels good” in his current foster home, which could
be a “long-term plan” for Matt if the Department’s adoption plan did not work out.
Hodridge testified that both parents had signed affidavits relinquishing their
parental rights to the children, that he believed that termination was in the children’s
best interest, and that the parents had made the right decision in relinquishing their
parental rights. He asked the trial court to appoint the Department as the children’s
permanent managing conservator pending the children’s adoption.
5
The Department was also concerned that the three older children had been
sexually abused.
5
Hodridge confirmed that because the parents had not seen the children for
months, the Department had agreed that the parents could have a one-time goodbye
visit with the children over Zoom if the parents’ criminal bond conditions were
changed to allow it. See generally Tex. Fam. Code Ann. § 161.2061 (“Terms Regarding
Limited Post-Termination Contact”). Hodridge further confirmed that because the
parents had voluntarily relinquished their parental rights, the Department had agreed
that while it was the children’s permanent managing conservator, it would provide the
parents with a brief monthly update on the children along with a photograph of each
child. See generally id. Hodridge clarified that these “offers” and “agreements” were
because the children had continued to say that they missed Mother and “weren’t
promised in lieu [sic] of a relinquishment of some kind.”
Neither Mother nor Father testified or offered any evidence. Regarding
Mother’s relinquishment affidavit, Mother’s attorney stated,
My client has reviewed the relinquishment at various time[s] and she’s
understood what it meant. . . . [S]he understands that she’s relinquishing
as to all five children and that she’s doing it voluntarily and it would be
in the best interest of the children.
Father’s attorney asked the court to accept Father’s relinquishment and stated that she
had had a lengthy discussion with Father about the relinquishment, that Father
understood the affidavit’s terms, that Father had signed the affidavit knowingly and
voluntarily, and that Father was “not given anything or promised anything in
exchange for his signature.”
6
The children’s guardian ad litem also urged the trial court to accept the parents’
relinquishment affidavits and urged that termination was in the children’s best
interest:
The two younger children probably will not be able to function in
society when they are adults. They will require full-time care for the rest
of their lives. It was really a blessing that their first foster home and the
foster home that they continue to be in . . . have stepped up and created
a schedule and structure for these boys and have really nurtured them in
a way that they have never had before, and so I’m so thankful that they
are going to be in a foster home that will ultimately adopt them and
provide them a home and the love and support that children truly need
and deserve. The older three children in this case suffered terribly at the
hands of their parents. The reports that they have talked about, the
conditions of the home, the language that they were subjected to, the
physical punishment and discipline and abuse that they suffered at the
hands of both of their parents and their grandparents is something that
no parent would ever want to see a child go through, or any adult would
want a child to go through. Because of this abuse, when they are placed
in a home that wants to provide them structure and discipline and love,
many of the negative aspects of abuse come out. They tell them they
want to die. They were unloved and feel they are worthy of love. And
when you see the effects of that, based upon their hospitalizations and
their need for medication and they are continuing to need therapy. The
oldest child, [Matt], is in a really amazing foster home. She is not a foster
mom who adopts boys, but she is a single woman who is from LA and
only takes older boys aged 11 to 18, and she has done wonders with
them. She’s done wonders with [Matt]. He feels loved, he feels
appreciated, and he knows the rules. He’s doing well in school[,] and he’s
really found a place where he knows that he’s accepted and loved. [Dan]
has been in and out of foster homes, and I hope that we find a place for
him that is similar that is for [Matt]. [Jane] previously had a very good
foster home that she made some threats of harm to other children which
required her to go someplace else. She is now in a therapeutic foster
home, actually a foster home with lots of years of experience. She’s only
been there a couple of weeks, but based upon an outburst that occurred
on Wednesday night, they thought that her medication needed to be
looked at and that she needs to go to a doctor and she went to a
psychiatric hospital actually this morning. I do believe that these children
7
will find a place where they are loved and nurtured[,] and I do believe
that these terminations are in their best interest. I will be grateful for a
relationship that they might have in the future with their parents after
termination, and they do have visits when they are able to and they are
available. . . . So I ask the Court to accept the parents’ wishes today to
grant the termination and hopeful adoption of the younger two and help
in finding placement in the future.
At the trial’s conclusion, the trial court found by clear and convincing evidence
that termination of Mother’s and Father’s parental rights to the children was in the
children’s best interest and that the Department had established by clear and
convincing evidence that each parent had executed an irrevocable affidavit of
relinquishment. See id. § 161.001(b)(1)(K), (b)(2). Based on these findings, the trial
court signed an order terminating Mother’s and Father’s parental rights to the children
and appointing the Department as the children’s permanent managing conservator.
The termination order also provided that the parents could have “one good-bye visit
with all of the children at the same time via Zoom, if [the parents’] criminal bond
conditions are modified to allow for such a visit” and that the Department would
provide the parents a brief monthly update on each child and a picture of each child
via email while the Department was that child’s permanent managing conservator. See
id. § 161.2061.
Neither parent moved for a new trial or filed any other postjudgment motions.
Mother and Father timely filed separate notices of appeal.
8
II. Father’s Appeal
Central to Father’s four appellate issues is a statement made about an earlier
case listed in the parents’ CPS case history in the affidavit supporting the
Department’s live termination petition in this case: “Case was called in due to
concerns that [Mother] and [Father] were leaving the children in the car[e] of
[Babysitter] who watches porn in the living room and has displayed sexually deviant
behavior. [Babysitter] is diagnosed [as] mildly retarded, as is [Father].”6 [Emphasis added.]
Although Father did not alert the trial court to this diagnosis at trial or otherwise
bring it to the trial court’s attention, he argues in his first three issues that the trial
court erred by finding that he had executed an unrevoked or irrevocable affidavit
relinquishing his parental rights because (1) the evidence was legally and factually
insufficient to support that finding; (2) the trial court was not “made aware of Father’s
diagnosis of mental retardation” and “how that might affect his ability to execute such
an affidavit on the day of trial”; and (3) the evidence “seemed to suggest that the
affidavit was obtained in exchange for something else of value—specifically, updates
6
We recognize that “retarded” and “retardation” are now considered pejorative
terms. See, e.g., Why the R-Word is the R-Slur, Special Olympics,
https://www.specialolympics.org/stories/impact/why-the-r-word-is-the-r-slur (last
visited Oct. 13, 2021). We will not use those terms to describe Father’s intellectual
disability unless we are quoting directly from the parties’ briefs or the record. See Hall
v. Florida, 572 U.S. 701, 704, 134 S. Ct. 1986, 1990 (2014) (using the term “intellectual
disability” instead of “mental retardation” and noting the change in terminology has
been approved by and is used in the Diagnostic and Statistical Manual of Mental
Disorders (DSM)).
9
and photos of his children.” In his fourth issue, Father complains that his appointed
trial counsel was ineffective because she failed to bring Father’s mild intellectual
disability to the trial court’s attention and failed to object to the Department’s leading
questions. We first address Father’s three relinquishment-affidavit issues.
A. Relinquishment
1. Standard of review and applicable law
For a trial court to terminate a parent–child relationship, the Department must
prove two elements by clear and convincing evidence: (1) that the parent’s actions
satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that
termination is in the child’s best interest. Id. § 161.001(b); In re E.N.C., 384 S.W.3d
796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and
convincing if it “will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code
Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Similarly, in
reviewing the evidence for factual sufficiency, we determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
Department proved the statutory grounds for termination and that the termination of
10
the parent–child relationship would be in the children’s best interest. Tex. Fam. Code
Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
Relevant here, a trial court may order termination of the parent–child
relationship if the court finds by clear and convincing evidence that termination is in
the child’s best interest and that the parent has voluntarily executed “an unrevoked or
irrevocable affidavit of relinquishment of parental rights.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(K), (b)(2); see In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014)
(“[I]mplicit in section [161.001(b)(1)(K)] is the requirement that the affidavit of
parental rights be voluntarily executed.”). An affidavit is executed voluntarily when it
is executed knowingly and intelligently. See K.M.L., 443 S.W.3d at 113; see also Vela v.
Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000) (“Since an affidavit of
relinquishment waives rights of constitutional magnitude, it must be made voluntarily,
knowingly, intelligently, and with full awareness of the legal consequences.” (citation
omitted)), pet. denied, 53 S.W.3d 684 (Tex. 2001). An involuntarily executed affidavit is
a complete defense to a termination suit based on Section 161.001(b)(1)(K). See
K.M.L., 443 S.W.3d at 113; see also In re C.E., No. 02-14-00054-CV, 2014 WL 3866159,
at *5 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.) (per curiam) (mem. op.).
Evidence that an affidavit of voluntary relinquishment was signed, notarized,
witnessed, and executed in compliance with Family Code Section 161.103 is prima
facie evidence of its validity. In re D.R.L.M., 84 S.W.3d 281, 296 (Tex. App.—Fort
Worth 2002, pets. denied). Once the proponent of the affidavit has met that burden,
11
the burden then shifts to the affidavit’s opponent to establish by a preponderance of
the evidence that the affidavit was executed as a result of fraud, duress, or coercion.
See id.; Vela, 17 S.W.3d at 757–58; see also Tex. Fam. Code Ann. § 161.211(c). A direct
attack on a judgment terminating parental rights based on an unrevoked affidavit of
relinquishment “is limited to issues relating to fraud, duress, or coercion in the
execution of the affidavit.” Tex. Fam. Code Ann. § 161.211(c); see In re M.M.,
538 S.W.3d 540, 541 (Tex. 2017); In re K.S.L., 538 S.W.3d 107, 110–12 (Tex. 2017).
2. Analysis
Here, Father admits—and we agree—that his irrevocable relinquishment
affidavit complied with Section 161.103’s requirements. See generally Tex. Fam. Code
Ann. § 161.103. Such compliance is prima facie evidence of the affidavit’s validity. See
In re M.S., No. 02-18-00379-CV, 2019 WL 1768993, at *6 (Tex. App.—Fort Worth
Apr. 22, 2019, pets. denied) (mem. op.); In re B.H., No. 02-15-00155-CV,
2015 WL 5893626, at *3 (Tex. App.—Fort Worth Oct. 8, 2015, no pet.) (mem. op.).
The burden thus shifted to Father to prove by a preponderance of the evidence that
the affidavit was executed as a result of fraud, duress, or coercion, see D.R.L.M.,
84 S.W.3d at 296, and he is limited to those grounds on appeal, see Tex. Fam. Code
Ann. § 161.211(c). See generally K.S.L., 538 S.W.3d at 115 (noting that Section
161.211(c)’s fraud, duress, and coercion grounds are “directed at whether the parent’s
waiver of parental rights was knowing and voluntary”).
12
Coercion occurs if someone is compelled to perform an act by force or threat.
In re D.E.H., 301 S.W.3d 825, 828 (Tex. App.—Fort Worth 2009, pet. denied) (op. on
reh’g). Duress occurs when, due to some kind of threat, a person is incapable of
exercising free agency and unable to withhold consent. Id. at 829. Fraud may be
committed through active misrepresentation or passive silence and is an act, omission,
or concealment in breach of a legal duty, trust, or confidence justly imposed, when the
breach causes injury to another, or the taking of an undue and unconscientious
advantage. Id. The burden of proving such wrongdoing is on the party opposing the
affidavit. Id. at 830.
In support of his first two issues, Father argues that he did not execute the
relinquishment affidavit knowingly and intelligently because he had been diagnosed
with a mild intellectual disability, a diagnosis that he asserts the Department judicially
admitted by including it in the affidavit supporting its live termination petition.7 “A
judicial admission is an unequivocal assertion of fact that, once made, relieves the
opposing party of its burden of proving the admitted fact and bars the admitting party
from disputing that fact.” Lenoir v. U.T. Physicians, 491 S.W.3d 68, 73 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied) (op. on reh’g). “A judicial admission must be a
clear, deliberate, and unequivocal statement.” Horizon/CMS Healthcare Corp. v. Auld,
7
As further evidence of his disability, Father also points to his indigency
affidavit, which lists Social Security Disability as his only income source.
13
34 S.W.3d 887, 905 (Tex. 2000) (quoting Regency Advantage Ltd. P’ship v. Bingo Idea-
Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996)).
Here, Father did not bring the Department’s alleged judicial admission to the
trial court’s attention or otherwise alert the trial court to his mild intellectual disability.
He likewise did not object to the affidavit or to testimony regarding his having
executed it, and his attorney asked the trial court to accept the relinquishment. As
noted, Hodridge testified that both parents had signed relinquishment affidavits and
that the parents had had an opportunity to discuss those affidavits with their
attorneys. Father’s trial counsel urged the trial court to accept Father’s affidavit,
stating that
I’d ask the Court [to] accept the relinquishment of my client,
[Father]. We were set to begin the trial at nine o’clock and it’s now 10:15.
The hour prior to this, I spent discussing the relinquishment and its
effect with my client. I believe that after our lengthy discussion, he did understand
the terms of the document and the legal effects of the document. He signed it in the
presence of two witnesses and it was notarized. Additionally, the
notary . . . was also able to ask him questions to ensure that he signed it knowingly
and voluntarily. . . . He knew that we were here today to begin trial. He
knew that he had that option and made the decision that he would rather
sign the relinquishment and have termination based on that
relinquishment alone and no other reason. [Emphases added.]
In his relinquishment affidavit, Father averred (among other things) that he had
been informed of and understood his parental rights; that he understood that by
naming the Department as managing conservator, he was giving up all parental rights
to the children and granting them to the Department; that he “freely, voluntarily, and
14
permanently g[a]ve and relinquish[ed] to the Department all parental rights and
duties”; and that he understood that the affidavit was irrevocable.
In support of his third issue, Father contends that given his diagnosis and the
fact that, when he executed the relinquishment affidavit, he had not had any visitation
with his children in 20 months because of his criminal case’s bond conditions, he was
forced to sign the affidavit by means of fraud, duress, or coercion because he signed
the affidavit in exchange for the Department’s promise to provide pictures and
updates about the children.8 In support of this argument, Father points to the
following exchange during trial:
[The Department:] Okay. And did the [D]epartment, because the parents
have relinquished, agree to provide a brief monthly update of the
children and a picture while the children are in the permanent managing
conservatorship of the Department
[Hodridge:] That is correct.
But Hodridge later clarified that the Department’s agreement to provide the
parents with post-termination contact was not conditioned on the parents’
relinquishing their rights to the children:
[The Department:] The reason why the Department is providing those
pictures and information is that, while these children have suffered
8
We note that in conformity with the Family Code, the parents’ affidavits do
not provide for conditional post-termination contact. See Tex. Fam. Code Ann.
§ 161.103(h) (“The [relinquishment] affidavit may not contain terms for limited post-
termination contact between the child and the parent whose parental rights are to be
relinquished as a condition of the relinquishment of parental rights.”).
15
tremendous abuse at the hands of their parents, they have continued to
say that they miss their mother?
[Hodridge:] That is correct.
Q. And that they have continued to ask about their mother especially; is
that correct?
A. That is correct.
Q. And based upon those expressed items from the children, we have
created a plan; is that correct?
A. That is correct.
Q. And those offers and those agreements are not based upon the fact --
they weren’t promised in lieu [sic] of a relinquishment of some kind;[9] is
that correct?
A. That is correct.
And when Father’s trial counsel asked the court to accept Father’s relinquishment
affidavit, Father’s counsel confirmed Hodridge’s testimony: “[Father] was not given
anything or promised anything in exchange for his signature.”
9
Father points out that “[t]echnically speaking, [this] statement does not directly
contradict [Hodridge’s earlier] statement, as the definition of ‘in lieu’ implies a
replacement, not an exchange” but acknowledges that “this could be the result of an
inartful misspeak . . . as this was a leading question and not in the words of the
witness.” Even so, Father maintains that
this statement meant to, and should be considered as having, directly
contradicted the earlier testimony, rendering both suspect, or it does not
directly contradict it and it should be taken as established that the affidavit
signed just moments prior to trial was done so in exchange for a promise to
provide pictures and updates.
We disagree with this assessment. From the statement’s context, “in lieu” is “an
inartful misspeak.”
16
We thus conclude that although the Department agreed that the parents could
have a goodbye visit with the children over Zoom and that the Department would
provide updates to the parents while it was the children’s conservator and these
agreements were set out in the termination order,10 the evidence shows that these
agreements for post-termination contact were not conditioned on the parents’
relinquishment. And to the extent that Father is claiming that he felt pressured, was
emotionally upset, or was under stress when signing the affidavit, these feelings and
emotions do not rise to the level of duress or coercion. See, e.g., M.S.,
2019 WL 1768993, at *8 (citing cases).
In conclusion, assuming that the Department’s statement regarding Father’s
diagnosis is a judicial admission that Father had been diagnosed as mildly intellectually
disabled, Father did not bring the admission to the trial court’s attention or otherwise
alert the trial court that he may have lacked the capacity to knowingly and intelligently
sign the affidavit. Moreover, Father presented no evidence regarding the nature and
extent of his disability or its effect (if any) on his capacity to knowingly and
intelligently execute a relinquishment affidavit. Considering Father’s counsel’s
statements, 11 Hodridge’s testimony, and the relinquishment affidavit itself, Father has
10
The Family Code permits a trial court to provide for limited post-termination
contact in cases in which the parent has signed a voluntary relinquishment affidavit.
See id. § 161.2061.
11
Although Father’s counsel’s unsworn statements in support of the
relinquishment affidavit “do not constitute evidence in the formal sense,” the trial
17
failed to show on this record that his relinquishment resulted from fraud, duress, or
coercion, and thus the evidence was sufficient to allow the trial court to form a firm
belief or conviction that Father’s affidavit was voluntary. 12 See B.H.,
2015 WL 5893626, at *5. We overrule Father’s first three issues.
B. Ineffective Assistance of Counsel
In his fourth issue, Father complains that his appointed trial counsel was
ineffective because she failed to bring Father’s “mental retardation” to the trial court’s
attention and failed to object to leading questions.
1. Applicable law
Parents have the right to effective assistance of counsel in termination cases.
In re J.O.A., 283 S.W.3d 336, 341, 343 (Tex. 2009); In re M.S., 115 S.W.3d 534,
544 (Tex. 2003). We review ineffective-assistance claims under the Strickland standard.
J.O.A., 283 S.W.3d at 343; M.S., 115 S.W.3d at 549; see Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To establish ineffective assistance
court was entitled to rely on counsel’s representations regarding Father’s execution of
the relinquishment affidavit given the ethical canons’ requirement of candor to the
court. In re D.J.L., No. 14-16-00342-CV, 2016 WL 6108341, at *5 (Tex. App.—
Houston [14th Dist.] Oct. 18, 2016, no pet.) (mem. op.); see United States Gov’t v.
Marks, 949 S.W.2d 320, 326–27 (Tex. 1997).
Because we conclude that the evidence was sufficient to support termination
12
based on Father’s relinquishment affidavit, we do not address the Department’s
argument that Father is estopped from challenging the sufficiency of the evidence
supporting termination under the invited-error doctrine. See D.J.L.,
2016 WL 6108341, at *3; D.R.L.M., 84 S.W.3d at 295.
18
under Strickland, Father must show both (1) that his trial counsel’s performance was
deficient and (2) that his trial counsel’s deficient performance prejudiced his case. See
M.S., 115 S.W.3d at 545 (“Under Strickland, the defendant, to establish an ineffective
assistance claim, must successfully show both prongs of the inquiry.”).
With respect to whether counsel’s performance in a particular case is deficient,
we must consider all the circumstances surrounding the case and must primarily focus
on whether counsel performed in a “reasonably effective” manner. Id. at 545. In this
process, we must give great deference to counsel’s performance, indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance, including the possibility that counsel’s actions are strategic. Id.
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.
Likewise, even if the parent can show that his trial counsel’s performance was
deficient, he must still show that the deficient performance caused harm—that is, a
reasonable probability exists that, but for counsel’s unprofessional error or errors, the
proceeding’s result would have been different. Id. at 549–50. Put differently, the
parent must show that counsel’s errors were so serious as to deprive him of a fair trial,
defined as a trial whose result is reliable. In re H.R.M., 209 S.W.3d 105, 111 (Tex.
2006).
An ineffective-assistance-of-counsel allegation in a termination proceeding
must be firmly founded in the record, and the record must affirmatively demonstrate
19
the alleged ineffectiveness and the resulting harm. In re L.G.R., 498 S.W.3d 195,
209 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “We may not speculate to
find trial counsel ineffective when the record is silent regarding counsel’s reasons for
h[er] actions.” In re F.L.H. IV, No. 04-17-00425-CV, 2017 WL 6597829, at *15 (Tex.
App.—San Antonio Dec. 27, 2017, pet. denied) (mem. op.) (quoting Walker v. Tex.
Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.]
2009, pet. denied)).
2. Analysis
Father complains that his trial counsel failed to alert the trial court to his mild
intellectual disability and that his trial counsel should have objected to the
Department’s “carefully phrased, leading questions.” Again, in determining whether
Father’s counsel was “reasonably effective,” we afford great deference to counsel’s
performance, indulging “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” M.S., 115 S.W.3d at 545 (quoting
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Here, Father’s counsel asked the trial
court to accept Father’s relinquishment affidavit and stated that she had discussed it
with Father and believed that after their lengthy discussion, he understood the
affidavit’s terms and its legal effects. In the absence of any evidence regarding the
exact nature and extent of Father’s mild intellectual disability, we indulge a
20
presumption that counsel’s representation of Father leading up to trial13 and her
discussion with him immediately before trial included a determination that Father’s
mild intellectual disability did not affect his capacity to sign a relinquishment affidavit.
And given that Father was asking the trial court to accept the relinquishment of his
parental rights, it made strategic sense for his attorney not to object to the
Department’s questions. See id. On this record, we cannot say that trial counsel’s
conduct was so outrageous that no competent attorney would have engaged in it. See
id.Because Father has failed to satisfy the first Strickland prong (deficient
performance), we need not consider the second prong (prejudice). See Strickland,
466 U.S. at 697, 104 S. Ct. at 2069. Accordingly, we overrule Father’s fourth and final
issue.
III. Mother’s Appeal
Mother’s appointed appellate counsel has filed a brief asserting that Mother’s
appeal is frivolous. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396,
1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003,
order) (holding that Anders procedures apply in parental-rights-termination cases), disp.
on merits, No. 2-01-349-CV, 2003 WL 2006583, at *2–3 (Tex. App.—Fort Worth May
By the time of trial, Father’s trial counsel had represented Father for over a
13
year. The trial court appointed Father’s trial counsel as substitute counsel after it was
discovered that Father’s original appointed counsel had a legal or ethical conflict that
left her “unable to handle th[e] case.”
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1, 2003, no pet.) (per curiam) (mem. op.). The brief meets Anders’s requirements by
presenting a professional evaluation of the record and demonstrating why there are no
arguable grounds to be advanced on appeal. Mother’s counsel provided Mother with a
copy of the Anders brief and informed her of her right to request the record and to file
a pro se response. We also informed Mother of those rights. At Mother’s request, we
provided her with a copy of the appellate record, and she has filed a response and a
supplemental response. The Department has declined to file a response.
In assessing the correctness of a compliant Anders brief’s conclusion that an
appeal from a judgment terminating parental rights is frivolous, we must
independently examine the appellate record to determine if any arguable grounds for
appeal exist. In re C.J., No. 02-18-00219-CV, 2018 WL 4496240, at *1 (Tex. App.—
Fort Worth Sept. 20, 2018, no pet.) (mem. op.); see also Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—
Fort Worth 1995, no pet.). We also consider the Anders brief itself and any pro se
response. In re K.M., No. 02-18-00073-CV, 2018 WL 3288591, at *10 (Tex. App.—
Fort Worth July 5, 2018, pet. denied) (mem. op.); see In re Schulman, 252 S.W.3d 403,
408–09 (Tex. Crim. App. 2008) (orig. proceeding).
We have carefully reviewed counsel’s brief, the appellate record, and Mother’s
responses. Finding no reversible error, we agree with counsel that Mother’s appeal is
without merit. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); In re
22
D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). We will thus affirm
the trial court’s order terminating Mother’s parental rights to the children.
Mother’s counsel did not file a motion to withdraw, and the record does not
show good cause for withdrawal independent from counsel’s conclusion that the
appeal is frivolous. See In re P.M., 520 S.W.3d 24, 27–28 (Tex. 2016) (order); In re C.J.,
501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets. denied). Accordingly,
Mother’s counsel remains appointed in this appeal through proceedings in the
supreme court 14 unless otherwise relieved from his duties for good cause in
accordance with Family Code Section 107.016(2)(C). See P.M., 520 S.W.3d at 27–28;
see also Tex. Fam. Code Ann. § 107.016(2)(C).
IV. Conclusion
Having overruled Father’s four issues and having determined that Mother’s
appeal is without merit, we affirm the trial court’s termination order.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: October 21, 2021
14
Mother’s counsel noted in his brief that he would move to withdraw as
appellate counsel in the supreme court.
23