in the Interest of C.L., a Child

IN THE
TENTH COURT OF APPEALS
No. 10-11-00228-CV
IN THE INTEREST OF C.L., A CHILD
From the 220th District Court
Bosque County, Texas
Trial Court No. 10-06-19610-BCFM
MEMORANDUM OPINION
Jacob R. appeals from a judgment terminating his parental rights based on an
irrevocable affidavit of relinquishment of parental rights. TEX. FAM. CODE ANN. §
161.103 (West 2011). Jacob complains that the evidence was legally and factually
insufficient for the trial court to have found that the affidavit was voluntary and that he
received ineffective assistance of counsel. Because we find no error, we affirm the
judgment of the trial court.
Procedural History
Jacob’s child was removed from his mother’s care by the Department of Family
and Protective Services due to abuse and neglect. Jacob was in prison at the time of
removal and throughout the case. Jacob was bench warranted from prison to attend a
permanency hearing approximately two weeks before a jury trial on the issue of
termination of parental rights. That day, Jacob was given several hours to consider
whether he wanted to sign an affidavit of relinquishment of his parental rights or to
have a jury decide on termination. During that time, he met with his mother, the
mother of his child, and the proposed adoptive father as well as his attorney and
ultimately decided to sign the affidavit in exchange for the adoptive parents agreeing to
send Jacob semi-annual photos and updates on the child. The jury trial that was
scheduled for approximately two weeks later was subsequently waived by Jacob and
his attorney with the agreement of all of the parties. At the final hearing, Jacob’s
attorney announced that Jacob wanted to withdraw his affidavit and proceed to trial at
a later date. A hearing was conducted at which Jacob testified. After hearing Jacob’s
testimony, the trial court denied Jacob’s request to withdraw his affidavit and
terminated his rights based on the affidavit.
Jacob’s trial attorney withdrew and his appellate counsel timely filed his
statement of points and a motion for new trial alleging legal and factual insufficiency as
to the voluntariness of the affidavit of relinquishment and ineffective assistance of
counsel. After a hearing at which Jacob’s trial counsel testified, the trial court denied
his motion for new trial but found that Jacob’s points of error were not frivolous.
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Voluntariness of Affidavit of Relinquishment
In his first and second issues, Jacob complains that the evidence was legally and
factually insufficient for the trial court to have determined that his affidavit of
relinquishment of parental rights was executed voluntarily. He further contends that
the current standards set forth in the family code for challenging an affidavit should not
be followed. See TEX. FAM. CODE ANN. § 161.211(c) (West 2011). This process places the
burden for establishing that an affidavit was not voluntarily executed on the
relinquishing parent if the affidavit was properly executed. Rather, Jacob contends that
due process requires that the burden of proof to establish the voluntariness of the
affidavit should remain with the proponent of the affidavit, which in this case is the
Department.
In support of this contention, Jacob relies on a dissenting opinion from a Justice
on the Texas Supreme Court that argues that because the termination of parental rights
is of constitutional dimension that due process requires that the proponent of an
affidavit of relinquishment should bear the burden of establishing that it was indeed
voluntary. See In re L.M.I., 119 S.W.3d 707, 716 (Tex. 2003) (Owen, J., concurring and
dissenting). Jacob further contends that at least two courts of appeals have concluded
that the standard set forth in that dissent regarding a different standard has merit
although neither court adopted that standard because the result would have been the
same under either standard. See In re R.B., 225 S.W.3d 798, 805 (Tex. App.—Fort Worth
In the Interest of C.L. Page 3
2007, no pet.); In re N.P.T., 169 S.W.3d 677, 680 (Tex. App.—Dallas 2005, pet. denied).
However, we note that since those opinions were issued the Fort Worth Court of
Appeals sitting en banc has expressly declined altering the standard based on the dissent
in L.M.I. See In re D.E.H., 301 S.W.3d 825, 830 n.4 (Tex. App.—Fort Worth 2009, pet.
denied). We also decline to alter the existing standards and burdens of proof as Jacob
suggests.
Standard of Review to Attack an Affidavit of Relinquishment
An involuntarily executed affidavit is a complete defense to a termination decree.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000, pet. denied). Because an
affidavit of relinquishment waives a constitutional right, it must be made voluntarily,
knowingly, intelligently, and with full awareness of its legal consequences. Id. Initially,
the proponent of the affidavit has the burden to establish by clear and convincing
evidence that the affidavit was executed according to the terms of section 161.103 of the
Family Code. TEX. FAM. CODE ANN. § 161.103 (West 2008); Vela, 17 S.W.3d at 758. Once
the proponent has met that burden, the burden then shifts to the affiant to establish by a
preponderance of the evidence that the affidavit was involuntarily executed as a result
of fraud, duress, or coercion. Monroe v. Alternatives in Motion, 234 S.W.3d 56, 62 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); Vela, 17 S.W.3d at 758; see also TEX. FAM. CODE
ANN. § 161.211(c) (West 2008) (stating that attack of termination order “based on an
In the Interest of C.L. Page 4
unrevoked affidavit of relinquishment of parental rights . . . is limited to issues relating
to fraud, duress, or coercion in the execution of the affidavit”).
Jacob does not argue that the affidavit was not executed substantially in
accordance with the terms of the Family Code, and agrees that under the current
standard, the burden then shifted to him to prove by a preponderance of the evidence
that the affidavit was not voluntarily signed because of issues relating to fraud, duress,
or coercion in the execution of the affidavit. See TEX. FAM. CODE ANN. § 161.211(c) (West
2008). We agree that the Department met its burden to establish that the affidavit was
executed in accordance with section 161.103. Therefore, we will address Jacob’s
sufficiency issues based on the burden that was shifted to Jacob.
Legal and Factual Sufficiency
In a legal sufficiency review of a finding terminating parental rights, we review
all of the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was
true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In a factual sufficiency review of a
finding terminating parental rights, our inquiry is whether the evidence is such that a
fact-finder could reasonably form a firm belief or conviction about the truth of the
petitioner’s allegations. Id.
However, because the issue before us is not based on the clear and convincing
standard for terminations, but rather a preponderance of the evidence, we will use the
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standards for that burden of proof. In reviewing the legal sufficiency of the evidence
supporting the voluntariness of Jacob’s affidavit, we first examine the record for
evidence that supports the finding of voluntariness while ignoring all evidence to the
contrary. See Vela, 17 S.W.3d at 759. Next, if there is no evidence to support the finding,
then we examine the entire record to see if the involuntariness of Jacob’s affidavit was
established as a matter of law. See id.
Our factual sufficiency review considers all of the evidence, both supporting and
contrary to the fact at issue. Plas-Tex, Inc. v U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.
1989). Because Jacob bore the burden of proof on the issue of involuntariness, we will
only reverse if we find that the finding of voluntariness is against the great weight and
preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
In order to reverse on a factual sufficiency point, we must be convinced that the finding
of voluntariness was clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986).
At the beginning of the final hearing, it was made known for the first time that
Jacob wanted to withdraw his affidavit of relinquishment. The trial court allowed Jacob
to testify regarding the reasons for wanting to withdraw the affidavit. Jacob testified
that he had not taken his prescribed medications of Zoloft and Tegretol for two days
prior to the execution of the affidavit, he was not thinking clearly that day, and felt
pressured to sign the affidavit by the child’s mother and his past, which included his
In the Interest of C.L. Page 6
current incarceration. Further, he indicated that he had changed his mind because the
adoptive parents had made an agreement with the mother for visitation if certain
conditions were met, which he had just found out about and did not agree with. He did
not attempt to tell anyone, including his family that visited him in the jail or his
attorney, that he had changed his mind until the day of the final hearing. This was also
the first time that Jacob’s attorney was told of his lack of medication.
Offered into evidence was a letter dated the same day of the final hearing which
Jacob had written and given to the adoptive parents, which stated that Jacob hoped that
they would give his son “the best life that yall (sic) can.” He further stated that if his
son asked about him when he is older to let the child know that he did what was best
for him. At the end he asked them to take birthday pictures.
On appeal, Jacob’s primary contention is that his affidavit was involuntary
because he had not taken his medications for the two days prior to its execution and
therefore, was not thinking clearly. However, as of the date of the final hearing two
weeks later, Jacob still was not taking his medication and admitted that he was thinking
more clearly the day that he executed the affidavit than he was at the time of the final
hearing. There was no testimony regarding the effects of Jacob not taking his
medication or in what way he was affected beyond not thinking clearly that was any
different from the day of the execution of the affidavit and the day of the final hearing.
Jacob does not argue that the affidavit was involuntary because of fraud, duress, or
In the Interest of C.L. Page 7
coercion and acknowledges the difficulty of him establishing as a matter of law that the
affidavit was involuntary if the burden shifted to him pursuant to the statutory scheme
set forth in section 161.211(c). See TEX. FAM. CODE ANN. § 161.211(c) (West 2011).
We find that, using the appropriate standards and considering all of the
evidence1 that Jacob failed to meet his burden that the affidavit was executed
involuntarily. While Jacob testified that he felt pressured to sign the affidavit, there was
no testimony regarding overreaching or fraud, and nothing to rise to the level of
coercion. Indeed, it appears that Jacob was bothered by the fact that the mother of the
child was to have greater contact than he was and so he changed his mind the day of
the hearing rather than having involuntarily executed the affidavit two weeks prior.
We find that the evidence was legally and factually sufficient for the trial court to have
found that the affidavits were executed voluntarily. We overrule issues one and two.
Ineffective Assistance of Counsel
Jacob complains in his third issue that he received ineffective assistance of
counsel because his trial counsel failed to inquire into his mental health history and
how that might have hindered his ability to voluntarily execute the affidavit of
relinquishment. He raised this issue in his motion for new trial, and his trial counsel
testified at that hearing.
1 Jacob contended that our review of the sufficiency of the evidence should be restricted to the testimony
from the final hearing and the affidavit of relinquishment itself. Although the hearing on the day the
affidavit was executed and the motion for new trial are before us, we have considered only the final
hearing transcript and the exhibits from that hearing as those are sufficient for us to dispose of Jacob’s
sufficiency issues.
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In analyzing the effectiveness of counsel in a parental-rights termination case, we
follow the two-pronged standard set forth by the United States Supreme Court in
Strickland v. Washington to determine whether an attorney’s representation was so
inadequate to violate the right to effective assistance of counsel. In the Interest of M.S.,
115 S.W.3d 534, 545 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)). To show ineffective assistance of counsel in a termination
case, the appellant must show (1) that counsel’s assistance fell below an objective
standard of reasonableness and (2) that counsel’s deficient assistance, if any, prejudiced
the parent. Id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). To show prejudice,
the appellant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In this context, “*a+ reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
Additionally, we do not review these claims of trial error in a vacuum. Rather,
we must examine the entire record in order to determine whether the error caused an
improper judgment. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069 (in determining
whether prejudice resulted from the deficient performance of counsel, “a court . . . must
consider the totality of the evidence before the judge or jury”); TEX. R. APP. P. 44.1
(reversible error in a civil case requires the court of appeals to conclude that the error
complained of probably caused the rendition of an improper judgment or probably
In the Interest of C.L. Page 9
prevented the appellant from properly presenting the case to the court of appeals). The
judgment at issue is the termination of Jacob’s parental rights; therefore, it was Jacob’s
burden to establish that but for his trial counsel’s deficient performance, the trial court
would not have terminated his parental rights on any proper theory.
Jacob argues that his trial counsel should have noticed that he had a history of
mental health issues based on his responses in the medical history report that was
attached to the affidavit of relinquishment. On that document, he lists depression as a
form of mental illness from which he, his grandmother, aunt, and father have suffered.
He indicated that his mother, grandmother, and aunt suffer from bi-polar disorder but
did not indicate that he was bi-polar. Jacob contends that this disclosure should have
alerted his attorney to his mental health issues or that his attorney should have
questioned him prior to the execution of the affidavit to determine if there was any
reason he would not be voluntarily signing the affidavit.
At the hearing on the motion for new trial, Jacob’s trial counsel testified that the
first time he knew of Jacob’s not taking prescription medications was at the final
hearing. He had spent a good deal of time with Jacob the day he signed the affidavit
and had visited him at the prison several months prior to that date when Jacob was
taking his medications. His demeanor was not any different between the two visits.
While his trial counsel stated that he did not inquire as to Jacob’s medical condition the
day he executed the affidavits, he did indicate that he had reviewed the affidavits with
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Jacob and that he was able to converse with Jacob about the case and never had any
doubts as to his competency.
Additionally, Jacob testified at a hearing on the day that he signed the affidavit
that he had decided to sign the affidavit and that he understood that it was irrevocable.
Part of the agreement for him signing the affidavit was that voluntary relinquishment
would be the only ground on which the Department would seek termination at the final
hearing and he indicated that he understood that agreement. He testified that
termination and adoption was in his child’s best interest, and that he and the proposed
adoptive father had agreed that he would receive letters and photos twice a year but
would not be allowed to write back.
There is nothing in the record besides Jacob’s testimony at the final hearing that
he was not thinking clearly to indicate that he was affected in any way by the lack of
medication. At all other times he appeared to understand the proceedings, understood
the deal he had made with the Department and the adoptive parents, but changed his
mind prior to the final hearing. We also note that the Department had alleged seven
separate grounds for the termination of his parental rights and if the trial court had
found Jacob’s affidavit to be involuntarily executed, the Department could have sought
termination on any of the other six grounds because the agreement not to terminate on
any other ground would no longer be enforceable. We hold that Jacob has not met his
burden to establish that, but for his counsel’s errors, if any, that the result of the trial
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would have been different based on the affidavit of relinquishment or the other
grounds alleged in the Department’s pleadings. We overrule issue three.
Conclusion
Having overruled Jacob’s issues, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 16, 2011
[CV06]
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