      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00062-CV



                                   Heather Lockwood, Appellant

                                                   v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. D-1-FM-10-004136, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Appellant Heather Lockwood appeals a final order terminating her parental

relationship with her son, J.A. On appeal, Lockwood alleges that (1) the evidence is legally and

factually insufficient to support the trial court’s findings that grounds exist to terminate the

parent-child relationship and that termination of her parental rights is in the child’s best interest, and

(2) appointed trial counsel provided ineffective assistance because she was not present at trial. See

Tex. Fam. Code Ann. § 161.001(1)(O), (2) (West Supp. 2011).1 We will reverse and remand for

further proceedings because the mediated settlement agreement admitted at trial is not binding and

because Lockwood was deprived of effective assistance of counsel at trial. See Tex. Fam. Code Ann.

§ 153.0071(d) (West 2008) (prescribing requirements for binding mediated settlement agreement


        1
          The statute governing involuntary termination of parental rights was amended effective
September 1, 2011, but the amendments are not material to the issues in this case. We therefore cite
to the current statute for convenience.
in suits relating to conservatorship, possession, and access to children); In re M.S., 115 S.W.3d 534,

544 (Tex. 2003) (applying effective-assistance-of-counsel requirement in parental-termination

cases); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (establishing

effective-assistance-of-counsel standard of review); United States v. Cronic, 466 U.S. 648, 658-59

(1984) (holding that ineffective assistance of counsel is presumed to be harmful in some cases).


                      FACTUAL AND PROCEDURAL BACKGROUND

               The Texas Department of Family and Protective Services (“the Department”) took

custody of Lockwood’s son, J.A., in July 2010, while he was residing with his biological father,

Jesus Arguijo III. At the time, the Department was investigating allegations that both Arguijo and

his wife (J.A.’s step-mother) had abused other children living with them, including one incident that

J.A. may have witnessed. The Department was appointed J.A.’s temporary managing conservator,

and the trial court periodically issued orders establishing requirements for Lockwood and Arguijo

to regain custody.

               In December 2011, the parties, their attorneys, J.A.’s court-appointed representatives,

and J.A.’s paternal grandparents participated in a mediated settlement conference. See Tex. Fam.

Code Ann. § 153.0071 (providing alternative dispute resolution procedures in child-custody cases).

Lockwood herself was not present at the settlement conference, but apparently participated

telephonically; all of the other participants appeared in person. The settlement conference

culminated in a mediated settlement agreement (“MSA”) in which J.A.’s father agreed to execute

an irrevocable affidavit relinquishing his parental rights. The MSA also included a stipulation that

clear and convincing evidence established that Lockwood failed to comply with the terms of the

                                                  2
service plan established by the Department and the trial court and that termination of her parental

rights was in J.A.’s best interest. See Tex. Fam. Code Ann. § 161.001(1)(O) (providing grounds for

terminating parental rights if court orders not followed), (2) (requiring that termination of parental

rights be in child’s best interest) (West Supp. 2011). Other provisions in the MSA waived the right

to a jury trial and set the case for a final hearing the following day. The MSA was signed by Arguijo,

the Department’s representatives, J.A.’s representatives, Arguijo’s attorney, and Lockwood’s

attorney. It is undisputed, however, that Lockwood did not personally sign the MSA. In fact, the

signature line over Lockwood’s name is blank, and neither her attorney nor anyone else purported

to sign the agreement on Lockwood’s behalf or with her permission.

               In accordance with the MSA’s terms, the case proceeded to a bench trial before an

associate judge the next day. See id. § 201.015(a) (West 2008) (authorizing referral of proceedings

to associate judge). Neither Lockwood nor her attorney was present at the final hearing, and no

person purporting to represent Lockwood entered an appearance. Although the trial judge was

advised that Lockwood’s attorney was not present, the trial proceeded. The MSA and Arguijo’s

affidavit of relinquishment were admitted into evidence without objection. The court took judicial

notice of its file, specifically the court’s prior orders.     In addition, the Department called

two witnesses—the case supervisor and J.A.’s guardian ad litem—to establish both that Lockwood

failed to comply with the provisions of the court’s orders establishing the actions necessary for her

to regain custody and that termination of her parental rights was in J.A.’s best interest. At the

conclusion of the trial, the judge stated on the record, “Then I will adopt basically what was agreed




                                                  3
to in the mediated settlement agreement and name the [D]epartment non-parent sole managing

conservator of [J.A.].”

                The final judgment, which was signed by the referring judge the same day as the trial,

includes findings and conclusions that (1) there is clear and convincing evidence to terminate

Lockwood’s parental rights under section 161.001(1)(O), (2) of the family code, and (2) the MSA

is irrevocable. The MSA’s terms are expressly incorporated into the final judgment, which

Lockwood’s attorney signed “approved as to form.”

                On appeal, Lockwood asserts that (1) the MSA is unenforceable and revocable

because she did not sign it and therefore it is no evidence supporting the trial court’s findings, (2) the

additional evidence offered at trial is legally and factually insufficient to support termination of her

parental rights, and (3) she was deprived of the effective assistance of counsel because she was

unrepresented at the final hearing.


                                            DISCUSSION

                The Department’s case at trial relied in large part on stipulations in the MSA that

there were grounds to terminate Lockwood’s relationship with J.A. and that termination of her

parental rights was in J.A.’s best interest. See id. § 161.001(1)(O), (2). At the conclusion of the trial,

the judge indicated that the MSA was a significant, if not determinative, factor in the decision to

terminate Lockwood’s parental rights. On appeal, Lockwood principally contends that the trial court

erred in terminating her parental rights based on the stipulations in the MSA because the absence of

her signature constitutes a material deviation from the statutory requirements for mediated settlement

agreements in suits affecting the parent-child relationship. See id. § 153.0071(d)(2). She further

                                                    4
asserts that the additional evidence offered at trial was insufficient to support termination of her

parental rights, and even if it was sufficient, the outcome of the trial was tainted by her attorney’s

failure to appear and subject the Department’s case to meaningful adversarial testing. The attorney

ad litem representing J.A. concurs with Lockwood. The Department contends, however, that the

MSA was enforceable at trial notwithstanding the absence of Lockwood’s signature because there

is a rebuttable presumption that an attorney retained for litigation has actual authority to enter

into a settlement on behalf of a client. See e.g., Kettrick v. Coles, No. 01-10-00855-CV,

2011 WL 3820941, at *8 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.); City

of Roanoke v. Town of Westlake, 111 S.W.3d 617, 629 (Tex. App.—Fort Worth 2003, pet. denied);

Ebner v. First State Bank, 27 S.W.3d 287, 300 (Tex. App.—Austin 2000, pet. denied). The

Department further asserts that Lockwood’s attorney’s representation as a whole was effective

regardless of whether the attorney appeared at the final hearing.

               We hold that (1) the MSA does not comply with section 153.0071(d) of the Texas

Family Code, which prescribes the requirements for binding and irrevocable mediated settlement

agreements in suits affecting the parent-child relationship, and (2) the Department’s reliance on the

MSA and the absence of Lockwood’s counsel at trial so skewed the presentation of the merits of the

case that we should remand the cause to the trial court in the interest of justice without regard to

whether the additional evidence admitted at trial would otherwise be legally and factually sufficient

to support the trial court’s judgment.




                                                  5
Mediated Settlement Agreement

               Texas has a policy of encouraging “the peaceable resolution of disputes,” particularly

in disputes involving the parent-child relationship. Tex. Civ. Prac. & Rem. Code Ann. § 154.002

(West 2011); Brooks v. Brooks, 257 S.W.3d 418, 421 (Tex. App.—Fort Worth 2008, pet. denied).

In furtherance of that policy, Texas Family Code section 153.0071 permits a trial court to refer a suit

affecting the parent-child relationship (“SAPCR”) to mediation and provides that a mediated

settlement agreement “is binding on the parties” if the agreement


       (1) provides, in a prominently displayed statement that is in boldfaced type or capital
       letters or underlined, that the agreement is not subject to revocation;

       (2) is signed by each party to the agreement; and

       (3) is signed by the party’s attorney, if any, who is present at the time the agreement
       is signed.


Tex. Fam. Code Ann. § 153.0071(d).

               Outside the SAPCR context, settlement agreements arising from mediation are

usually not binding when one party timely withdraws his or her consent to the agreement, unless the

other party successfully sues to enforce the settlement agreement as a contract that complies with

Rule 11 of the Texas Rules of Civil Procedure. See id. § 153.0071(e); Milner v. Milner,

361 S.W.3d 615, 618 n.2 (Tex. 2012); Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex.1995);

Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.—Fort Worth 2002, no pet.). Section 153.0071(d),

however, expressly makes mediated settlement agreements binding and irrevocable in suits affecting

the parent-child relationship (subject to limitations not alleged to be applicable in this case) and



                                                  6
creates a procedural shortcut for the enforcement of such agreements. See Tex. Fam. Code Ann.

§ 153.0071(d) (setting forth requirements for binding mediation agreement), (e) (making such

agreements binding without regard to Rule 11 or other rules of law), (e-1) (giving trial court

discretion not to enforce mediated settlement agreement in certain cases involving family violence

or if agreement is not in child’s best interest); cf. Milner, 361 S.W.3d at 618 & n.2 (applying section

6.602 of family code, which is worded identically to section 153.0071(d)); Boyd, 67 S.W.3d at 402

(same); Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied) (same).

               In this case, it is undisputed that Lockwood was not physically present at the

settlement conference and did not sign the settlement agreement. Despite this obvious deviation

from section 153.0071(d)’s express requirements, the Department contends that we must apply a

rebuttable presumption that Lockwood’s attorney had authority to settle the case on the terms stated

in the MSA based on the attorney’s representation of Lockwood, presence at the settlement

conference, and signature on both the MSA and the final judgment. Such a presumption has been

applied to settlement agreements in general, and the Department contends that Lockwood failed

to produce any evidence in her motion for new trial rebutting the presumption. See, e.g., Kettrick,

2011 WL 3810941, at *8 (rebuttable presumption that attorney retained for litigation has actual

authority to enter into settlement on behalf of client); City of Roanoke, 111 S.W.3d at 629 (same);

Ebner, 27 S.W.3d at 300 (same). Lockwood contends, however, that the application of such a

presumption to mediated settlement agreements in suits affecting the parent-child relationship is

inconsonant with the plain language in section 153.0071(d). We agree with Lockwood.



                                                  7
               Applying the presumption the Department cites would contravene section

153.0071(d)’s requirement that both the parties and their attorneys (if any) sign the agreement. In

addition, allowing an attorney’s signature to substitute for a party’s signature would render section

153.0071(d)’s disclaimer requirement effectively meaningless because there would be no assurance

that the notice regarding irrevocability was actually conveyed to the client with the statutorily

mandated prominence. It would be absurd to construe section 153.0071(d) in a manner that

effectively renders two of three express requirements superfluous. See City of Rockwall v. Hughes,

246 S.W.3d 621, 625-26 (Tex. 2008) (legislative intent is found in plain meaning of text unless

different meaning is apparent or literal application would lead to absurd results); see also Hunter

v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex. 1981) (observing that, in enacting

legislation, the legislature is never presumed to do useless or meaningless act).

               The absence of Lockwood’s signature on the MSA not only creates doubt about

whether she consented to the agreement, it also creates doubt as to whether she was adequately

apprised of its essential terms, including the statutorily mandated disclaimer. Section 153.0071(d)(1)

requires that a disclaimer regarding irrevocability be “in a prominently displayed statement that is

in boldfaced type or capital letters or underlined.” Tex. Fam. Code Ann. § 153.0071(d)(1). This

requirement is for the protection and benefit of the parties, and there would be no point to mandating

such a disclaimer if it were unnecessary for the parties to actually see it. Considering the plain

language in section 153.0071 and the importance of the rights and interests at issue in SAPCR

proceedings, we agree with our sister courts that strict compliance with section 153.0071(d)’s

requirements is essential to forming a binding and irrevocable mediated settlement agreement in such



                                                  8
cases. See Streety v. Hue Thi, No. 05-09-00556-CV, 2010 WL 2278617, at *4 (Tex. App.—Dallas

June 8, 2010, no pet.) (mem. op.) (strict compliance with disclaimer requirement in section

153.0071(d) is essential for binding and irrevocable mediated settlement agreement); Spinks v.

Spinks, 939 S.W.2d 229, 230 n.2 (Tex. App.—Houston [1st Dist.] 1997, no writ) (same). In this

case, it is undisputed that Lockwood did not sign the MSA; thus, the statute’s requirements were not

satisfied, there was no evidence at the time of trial that she consented to the terms of the agreement,

and the MSA is no evidence to support the trial court’s termination order.


Ineffective Assistance of Counsel

               In Texas, indigent parents in termination proceedings have a statutory right to

counsel. Tex. Fam. Code Ann. § 107.013(a)(1) (West Supp. 2011); In re M.S., 115 S.W.3d at 544.

Because it would be a useless gesture to recognize the importance of counsel in termination

proceedings by statute but not to require that counsel perform effectively, this statutory right

embodies the right to effective assistance of counsel. In re M.S., 115 S.W.3d at 544. To determine

whether parents in termination proceedings received effective assistance of counsel, Texas courts

apply the two-pronged standard established by the United States Supreme Court in Strickland

v. Washington, 466 U.S. 668 (1984). In re M.S., 115 S.W.3d at 544-45. To satisfy the Strickland

standard, Lockwood must show both (1) that her attorney’s performance was so deficient and

contained such serious errors that the attorney was not functioning as counsel, and (2) that the

deficient performance prejudiced her defense to such a degree that she was deprived of a fair trial.

Strickland, 466 U.S. at 687.




                                                  9
                In determining whether counsel’s performance in a particular case is deficient, we

must take into account all of the circumstances surrounding the case and focus on whether counsel

performed in a reasonably effective manner. In re. M.S., 115 S.W.3d at 545. The Texas Supreme

Court has stated that “[c]ounsel’s performance falls below acceptable levels of performance when

the ‘representation is so grossly deficient as to render proceedings fundamentally unfair.’” Id.

(quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). In considering the

acceptability of counsel’s performance, there is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,” and it is only when counsel’s conduct

is “‘so outrageous that no competent attorney would have engaged in it,’ that the challenged conduct

will constitute ineffective assistance.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001), and Strickland, 466 U.S. at 689). An assertion of ineffective assistance will be sustained

only if the record affirmatively supports such a claim. See Thompson v. State, 9 S.W.3d 808, 814

(Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When the

record is silent as to counsel’s subjective motivations, courts will ordinarily presume that the

challenged action might be considered sound trial strategy. See Rylander v. State, 101 S.W.3d 107,

110-11 (Tex. Crim. App. 2003). An error in trial strategy will be deemed inadequate representation

only if counsel’s actions are without any plausible basis. Ex parte Ewing, 570 S.W.2d 941, 943

(Tex. Crim. App. 1978); Hollis v. State, 219 S.W.3d 446, 470-71 (Tex. App.—Austin 2007, no pet.).

                To show prejudice, Lockwood “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. In this context, “[a] reasonable probability is a probability sufficient to



                                                  10
undermine confidence in the outcome,” id., and a presumption of prejudice may be warranted if an

indigent parent is denied counsel at a “critical stage” of litigation. See Cronic, 466 U.S. at 659; see

also In re V.V., 349 S.W.3d 548, 560 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (noting that

cases governed by Cronic are on one end of Strickland continuum). In such circumstances, “[n]o

specific showing of prejudice [is] required,” because “the adversary process itself [is] presumptively

unreliable.” Cronic, 466 U.S. at 659; see also Smith v. Robbins, 528 U.S. 259, 286 (2000)

(distinguishing denial of counsel altogether on appeal, warranting presumption of prejudice, from

mere ineffective assistance of counsel on appeal, which does not warrant such presumption); Penson

v. Ohio, 488 U.S. 75, 88-89 (1988) (complete denial of counsel on appeal requires presumption of

prejudice); Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir. 2001) (en banc) (noting that prejudice

is presumed when, during “critical stage of a trial,” counsel is either (1) totally absent or (2) present

but prevented from providing effective assistance).

                In this case, the record reflects that Lockwood’s attorney did not appear at trial. Thus,

Lockwood, who also did not appear at trial, was not represented at trial by her appointed counsel or

anyone else. The MSA, which did not comply with the statute, was incorporated into an order

without objection. Lockwood also points out that there are variances between the testimony

regarding her noncompliance with the court’s orders and the actual content of the orders that should

have been subjected to adversarial testing, but were not. There is no plausible strategic reason for

trial counsel’s failure to appear at a critical stage of litigation and subject the Department’s case to

appropriate adversarial testing. Applying the principles in Strickland and Cronic to this case, we




                                                   11
conclude that the adversarial process employed here was so unreliable that a presumption of

prejudice is warranted.

               Even if the Cronic presumption did not apply, Lockwood’s failure to receive any

representation at the termination hearing undermines our confidence in the outcome. Likewise, the

Department had no notice that Lockwood was contesting her consent to the MSA when it proceeded

with an accelerated trial schedule and presented its case. Consequently, the presentation of the

merits of this case was improperly skewed. The State, the child, and the parents share an interest in

an accurate and just decision. See In re M.S., 115 S.W.3d at 547-48; In re B.L.D., 113 S.W.3d 340,

353 (Tex. 2003). Accordingly, we will reverse the trial court’s judgment and, in the interests of

justice, remand this cause for further proceedings without considering whether the additional

evidence that was offered at trial would otherwise be sufficient to support termination of the

parent-child relationship. See Tex. R. App. 43.3(b); Knapp v. Wilson N. Jones Mem’l Hosp.,

281 S.W.3d 163, 176 (Tex. App.—Dallas 2009, no pet.) (“Appellate courts have broad discretion

to remand a case for a new trial in the interest of justice. . . . Remand is appropriate when, for any

reason, a case has not been fully developed.”); Ahmed v. Ahmed, 261 S.W.3d 190, 195-96 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (“Remand is appropriate if a case needs further

development because it was tried on an incorrect legal theory or to establish and present evidence

regarding an alternate legal theory.” (citations omitted)).




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                                         CONCLUSION

               For the foregoing reasons, we reverse the trial court’s order terminating Lockwood’s

parental rights to J.A. and remand the cause to the trial court for further proceedings.



                                              _________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Reversed and Remanded

Filed: June 26, 2012




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