COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-339-CV
IN THE INTEREST OF X.P., A CHILD
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
This is an appeal from an order terminating appellant’s parental rights
based on an irrevocable affidavit of voluntary relinquishment. We affirm.
II. Background
On October 12, 2005, the Texas Department of Family and Protective
Services (TDFPS) filed a petition to terminate appellant’s parental rights to his
1
… See T EX. R. A PP. P. 47.4.
child X.P.2 On September 7, 2006, appellant signed an irrevocable affidavit of
voluntary relinquishment of parental rights (the Affidavit) in which he swore
that termination of the parent-child relationship between appellant and X.P. was
in X.P.’s best interest; relinquished all of his parental rights and duties to X.P.;
consented to placing X.P. for adoption; and waived citation, notice, hearing,
and notice of entry of decree.3
A trial on the merits of the termination was held on September 7, 2006.
Appellant, having waived citation and notice, was not present at trial. The trial
court took judicial notice of the Affidavit and then heard testimony from two
witnesses—X.P.’s mother and X.P.’s child protective services’s case worker
Courtney Thompson. X.P.’s mother testified that she observed appellant
execute the Affidavit and believed that appellant thought it was in X.P.’s best
interest that appellant’s brother adopt X.P. pursuant to TDFPS’s service plan
because it was “the best place” for X.P.4 Thompson testified that appellant had
engaged in multiple criminal activities; was believed to be “mentally unstable”;
was currently incarcerated for assaulting X.P.’s aunt; and had been incarcerated
2
… TDFPS also filed a petition to terminate X.P.’s mother’s parental rights
to X.P. and to a second child, A.N. Appellant is not A.N.’s father.
3
… See T EX. F AM. C ODE A NN. § 161.103 (Vernon Supp. 2008) (setting
forth requirements of an affidavit of voluntary relinquishment of parental rights).
4
… TDFPS also sought to place A.N. with appellant’s brother D.P.
2
“off and on” for the past ten years rendering appellant “unavailable” to parent
X.P. No controverting evidence was presented.
On September 11, 2006, the trial court entered a written order of
termination finding, in relevant part, that appellant had voluntarily executed the
Affidavit and that termination of the parent-child relationship between appellant
and X.P. was in X.P.’s best interest. Subsequently, appellant’s trial counsel
timely filed a notice of appeal.
On October 5, 2006, the trial court held a hearing pursuant to family code
section 263.405(d)(3) to determine whether any appeal from the termination
order was frivolous. 5 Appellant’s trial counsel filed a motion to withdraw and
a brief in which he argued that any appeal was frivolous because the Affidavit
was executed in compliance with the statutory requirements of family code
section 161.103 and because there was no evidence to support a claim that
appellant executed the Affidavit involuntarily. TDPFS agreed, and it also argued
that any appeal was frivolous because appellant had failed to file a statement
of points and, therefore, preserved no issues for appellate review. After the
hearing, the trial court granted the motion to withdraw and later signed an order
finding that appellant’s appeal was frivolous.
5
… See T EX. F AM. C ODE A NN. § 263.405 (d)(3) (Vernon Supp. 2008).
3
III. Issues Presented
Appellant challenges the trial court’s frivolousness determination
contending that he received ineffective or no assistance of counsel after the
termination trial because trial counsel withdrew from representation without
filing a statement of points and did not undertake any investigation of the facts
supporting a contest to the voluntariness of the Affidavit.6 In addition, to the
extent the trial court’s frivolousness finding has any “impact” on our review of
the merits of his ineffective assistance of counsel complaint, appellant contends
that the trial court abused its discretion in finding any appeal from the
termination order was frivolous. Appellant also contends that family code
sections 263.405(b)(2), 263.405(d)(3) and 263.405(g) violate the separation
of powers doctrine to the extent they prevent him from raising his ineffective
assistance claim for the first time on appeal.
IV. Ineffective Assistance of Counsel
Appellant asserts that his trial counsel’s performance was deficient
because trial counsel failed to file a statement of points within fifteen days of
the date the trial court signed its final order as required by section
6
… Appellant also complains that trial counsel was ineffective for not
filing an affidavit of indigence, but he recognizes in his appellate brief that this
failure was “subsequently corrected on appeal.” Accordingly, we will not
address this complaint.
4
263.405(b)(2) and, therefore, pursuant to section 263.405(i), appellant is
precluded from raising an issue for appellate review.7 Appellant claims that, but
for trial counsel’s deficient performance, there existed a reasonable probability
that the trial court would have found his appeal non-frivolous. Appellant further
claims that due to trial counsel’s deficient performance, appellant’s appeal was
“irrevocably crippled.”
In a suit in which termination of the parent-child relationship is sought,
the appropriate standard of review for effective assistance of counsel is the
same standard set forth by the United States Supreme Court in Strickland v.
Washington.8 The Strickland standard is well-established, fairly straightforward,
and places a sufficiently high burden on the movant to establish that counsel’s
performance was deficient and that the deficient performance prejudiced the
complaining party.9
7
… See T EX. F AM. C ODE A NN. § 263.405(i) (Vernon Supp. 2008) (providing
that an “appellate court may not consider any issue that was not specifically
presented to the trial court in a timely filed statement of points”).
8
… 466 U.S. 668, 104 S. Ct. 2052 (1984); In re M.S., 115 S.W.3d 534,
545 (Tex. 2003) (adopting Strickland standard in parental rights termination
proceedings).
9
… M.S., 115 S.W.3d at 545 (quoting L.W. v. Dep’t of Children &
Families, 812 So.2d 551 (Fla. Dist. Ct. App. 2002).
5
With respect to whether counsel’s performance in a particular case is
deficient, we must take into account all of the circumstances surrounding the
case and focus primarily on whether counsel performed in a “reasonably
effective manner”; that is, whether the errors made by counsel were so serious
that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment.10 Counsel’s performance falls below acceptable levels of
performance when the representation is so grossly deficient as to render the
proceedings “fundamentally unfair.” 11 In making this determination, we must
give great deference to counsel’s performance and we should find ineffective
assistance of counsel only in those situations where the challenged conduct
was “so outrageous that no competent attorney would have engaged in it.” 12
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial; a trial whose
result is reliable.13 In other words, appellant must show that there is a
10
… M.S., 115 S.W.3d at 545 (quoting Strickland, 466 U.S. at 687, 104
S. Ct. at 2064).
11
… Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim App. 1983); see
M.S., 115 S.W.3d at 545.
12
… M.S., 115 S.W.3d at 545 (quoting Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001).
13
… Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
6
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.14 The record must affirmatively
demonstrate counsel’s ineffectiveness. 15 With the Strickland guidelines in mind,
we consider appellant’s complaint about counsel’s conduct.
With regard to appellant’s contention that trial counsel was ineffective
because trial counsel’s failure to timely file a statement of points precluded
appellant from raising an issue for appellate review, this court has held that
section 263.405(i) is an unconstitutional violation of the separation of powers
provision of the Texas Constitution.16 Thus, even assuming trial counsel’s
performance was deficient, appellant is capable of obtaining appellate review
of non-frivolous, properly preserved issues not filed in a statement of points.
He has, therefore, not been deprived of a meaningful appeal in this court.
Appellant also argues that trial counsel was ineffective because, without
a statement of points, the trial court had no issues to consider in making its
14
… Id. at 694, 104 S. Ct. at 2068.
15
… Ex parte Okere, 56 S.W.3d 846, 855 (Tex. App.—Fort Worth 2001,
pet. Ref’d).
16
… In re D.W., 249 S.W.3d 625, 645 (Tex. App.—Fort Worth 2008),
pet. denied, 2008 WL 2872621, at *1 (Tex. July 25, 2008) (“The petition for
review is denied. In denying the petition, we neither approve nor disapprove
the holding of the court of appeals regarding the constitutionality of Texas
Family Code section 263.405(i).”).
7
frivolous determination. Trial counsel, however, did identify to the trial court
the issue appellant now claims would arguably support an appeal—whether
appellant executed the affidavit of relinquishment of parental rights voluntarily.
Trial counsel showed that the Affidavit was signed by appellant, notarized and
witnessed, and that it otherwise complied with the statutory requirements for
an affidavit of voluntary relinquishment of parental rights set forth in family
code section 161.103.17 He further represented that he had reviewed the facts
surrounding the case and that he was aware of no evidence that the Affidavit
was procured through fraud, duress, or coercion, or that appellant was
incompetent or under the influence of drugs or alcohol when he executed the
Affidavit.18 Based on the Affidavit and the lack of evidence that it was
executed involuntarily, the trial court determined that the appeal was frivolous,
17
… Evidence that the affidavit was signed, notarized, witnessed, and
executed in compliance with section 161.103 is prima facie evidence of the
affidavit’s validity. In re R.B., 225 S.W.3d 798, 804 (Tex. App.—Fort Worth
2007, pet. granted); see In re V.R.W., 41 S.W.3d 183, 190 (Tex.
App.—Houston [14th Dist] 2001, no pet.); see also T EX. F AM. C ODE A NN .
§ 161.103.
18
… Once presumed valid, the affidavit may be set aside only upon proof,
by a preponderance of the evidence, that the affidavit was executed as a result
of fraud, duress, or coercion. In re D.R.L.M., 84 S.W.3d 281, 296 (Tex.
App.—Fort Worth 2002, pet. denied).
8
stating, “Appellant . . . did not present any issues of law by this appeal[.]” 19
Thus, even if trial counsel’s performance was deficient for not filing a statement
of points, the result of the frivolousness proceeding would, in all reasonable
probability, have been the same.
Appellant further asks the court to speculate as to trial counsel’s motives
for not having appellant testify at the final hearing. Appellant contends that
one possibility for his lack of testimony is collusion between his trial counsel
and the other parties to conceal that the Affidavit was procured through fraud,
duress, or coercion. Where the record is silent, it is impermissible for us to
speculate that trial counsel’s performance was the product of sinister motives. 20
Instead, we presume that trial counsel acted out of sound trial strategy.21
Appellant asserts that trial counsel’s contention that there was no
evidence that the Affidavit was executed involuntarily is incorrect. He argues
that Thompson’s testimony constitutes some evidence that he did not have the
mental capacity to execute the Affidavit voluntarily: “He [appellant] has
19
… The trial court also found “no issue was presented by this appeal
pursuant to [a statement of points].”
20
… Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (holding
that “without some explanation as to why counsel acted as he did, we presume
that his actions were the product of an overall strategic design”); Jackson v.
State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).
21
… Tong, 25 S.W.3d at 707.
9
engaged in multiple criminal activities and at this time he is, we believe,
mentally unstable. . . .”
We do not consider Thompson’s conclusory testimony sufficient to raise
an issue regarding whether appellant was legally competent to execute the
Affidavit. Thompson did not explain what she meant by “mentally unstable,”
and the record contains no underlying facts supporting her opinion as to
appellant’s mental state.22 Nor does the record show that she is qualified to
make a clinical assessment of appellant’s mental state.
Appellant suggests that since it was obvious that he was unhappy that
he executed the Affidavit, trial counsel should have known that there existed
an issue regarding the voluntariness of the Affidavit. Mere expression of
emotion, however, even at the time of signing of an affidavit, does not render
the affidavit involuntary.23
22
… “A conclusory statement is one that does not provide the underlying
facts to support the conclusion.” Haynes v. City of Beaumont, 35 S.W.3d 166,
178 (Tex. App.—Texarkana 2000, no pet.); see AMS Constr. Co., Inc. v. Warm
Springs Rehab. Found., Inc., 94 S.W.3d 152, 157 (Tex. App.—Corpus Christi
2002, no pet.).
23
… Lumbis v. Tex. Dep’t of Prot. & Reg. Servs., 65 S.W.3d 844, 851
(Tex. App.—Austin 2002). Appellant may have simply had a change of heart
and wanted to revoke the Affidavit. Evidentiary support can be found for this
in appellant’s pro se findings. After the trial court found appellant’s appeal to
be frivolous and granted trial counsel’s motion to withdraw, appellant himself
filed with the trial court a pro se motion entitled First Amended Notice of
Appeal, in which appellant referred to the September 7, 2006 termination as
10
Appellant did not complain that the Affidavit was involuntary until May
16, 2007, when he filed a motion for enforcement of the trial court’s order that
he be bench warranted, in which appellant stated: “. . . he was misled into
believing it [sic] he would relinquish his parental right, he would have limited
access to his son.” There is, however, no evidence in the record to support
this allegation. There are no conditions or promises outlined in the Affidavit
itself. Appellant signed the Affidavit; the Affidavit contains the signatures of
two witnesses; and each page of the Affidavit bears appellant’s initials. The
Affidavit states that appellant is aware that he is giving up all of his parental
rights to X.P. to TDFPS; that the Affidavit is final, permanent, and irrevocable;
and that, if appellant changes his mind, he can never force TDPFS to “destroy,
revoke, or return” the Affidavit. The termination order itself does not reference
any promises or state that appellant would have any access, limited or
otherwise, to X.P.24
the time when appellant “waived his parental rights voluntarily.” At that same
time, appellant also filed a Motion for Appointment of Counsel on Appeal and
again referred to September 7, 2006 as the time when appellant “voluntarily
relinquished his parental rights.”
24
… Appellant asks us to surmise that something about the Affidavit and
the way it was procured was in error from the fact that he wanted to appeal
the termination order. There is nothing in the record, however, to support such
an inference.
11
In conclusion, upon conducting a careful and thorough review of the
record, we find no basis for appellant’s ineffective assistance claim. Even
assuming trial counsel’s performance was deficient, appellant was not
prejudiced by his trial counsel’s conduct. The termination order is supported by
uncontroverted testimony that appellant voluntarily executed the Affidavit and
that he thought adoption by D.P. was “the best place” for X.P. The evidence
clearly and convincingly establishes that the Affidavit was executed in
compliance with the statutory requirements of section 161.103 of the family
code. 25 There is no evidence that the Affidavit was executed involuntarily.
Appellant’s first issue is overruled.
25
… In re B.B.F., 595 S.W.2d 873, 875 (Tex. App.—San Antonio 1980,
no writ); see T EX. F AM. C ODE A NN. § 161.103.
12
V. Conclusion
Having overruled appellant’s first issue, we affirm the judgment of the
trial court.26
PER CURIAM
PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: August 21, 2008
26
… Because we have addressed the merits of appellant’s ineffective
assistance of counsel claim, as well as appellant’s argument that the trial
court’s frivolousness finding was erroneous, we need not reach appellant’s
constitutional challenges to family code sections 263.405(b)(2), 263.405(d)(3)
and 263.405(g). See T EX. R. A PP. P. 47.1; In re B.L.D., 113 S.W.3d 340, 349
(Tex. 2003), cert denied by Dossey v. Tex. Dep’t of Protective & Regulatory
Servs., 541 U.S. 945, 124 S. Ct. 1674, 158 L.Ed.2d 371 (2004).
13