Affirm in part; Reverse and Remand in part; Opinion Filed September 18, 2018.




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-18-00291-CV

                    IN THE INTEREST OF B.H. AND J.H., CHILDREN

                      On Appeal from the 305th Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. JC-16-00779-X

                              MEMORANDUM OPINION
                         Before Justices Lang-Miers, Myers, and Boatright
                                     Opinion by Justice Myers
       Mother and Father appeal the trial court’s judgment terminating their parental rights to

their children. Mother’s appellate attorney filed an Anders brief asserting the appeal is frivolous

and without merit and there is no arguable issue on appeal. Father brings one issue on appeal

contending he did not receive effective assistance of counsel at trial because his attorney did not

appear at the final hearings. The State agrees that Father was deprived of effective assistance of

counsel. We affirm the trial court’s judgment as to Mother, and we reverse the trial court’s

judgment as to Father.

                                     MOTHER’S APPEAL

       Mother’s appointed counsel on appeal has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), stating the record does not contain any reversible error that was preserved

for appellate review. The trial court’s order terminating the parent-child relationships between

Mother and Father and the children followed the provisions of a mediated settlement agreement
signed by all the parties and their attorneys. See TEX. FAM. CODE ANN. § 153.0071(d), (e) (West

2014). Counsel filed in this Court a copy of a letter he sent to Mother with his brief advising

Mother of her right to examine the appellate record and to file a pro se response. In addition, this

Court provided Mother a copy of the Anders brief and notified her of her right to examine the

appellate record and to file a pro se response. Mother did not file a pro se response.

       The procedures established in Anders are applicable where, as here, the appellant’s

appointed counsel concludes there are no non-frivolous issues to assert on appeal. See In re D.D.,

279 S.W.3d 849, 849–50 (Tex. App.—Dallas 2009, pet. denied). This Court is not required to

address the merits of each claim raised in an Anders brief or a pro se response. See Bledsoe v.

State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); In re D.D., 279 S.W.3d at 850 (citing Bledsoe,

178 S.W.3d at 827). Instead, our duty is to determine whether there are any arguable grounds for

reversal and, if so, to remand the case to the trial court so that new counsel may be appointed to

address the issues. See In re D.D., 279 S.W.3d at 850.

       In the Anders brief, counsel for Mother presents a professional evaluation of the record

demonstrating why there are no arguable grounds for reversal and concluding that Mother’s appeal

is frivolous and without merit. See Anders, 386 U.S. at 744. We independently reviewed the entire

record and counsel’s Anders brief, and we agree that the appeal is frivolous and without merit. We

find nothing in the record that could arguably support the appeal.

       We affirm the trial court’s judgment as to Mother.

                                      FATHER’S APPEAL

       In his sole issue on appeal, Father contends he did not receive effective assistance at trial

because his attorney did not appear at the final hearing. The State responded in its brief that it

“agrees that Appellant-Father was deprived of effective assistance of counsel.” Both Father and

the State request that we reverse the trial court’s judgment and remand the case for further


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proceedings. The State’s concession of error does not relieve this Court of the obligation to

perform our judicial function by independently determining whether the concession is based on

sound analysis. In re K.B., No. 05-17-00428-CV, 2017 WL 4081815, at *6 (Tex. App.—Dallas

Sept. 15, 2017, no pet.) (mem. op.).

                                          Background

        This case was referred to the Texas Department of Family and Protective Services as a

result of Mother and Father’s drug use and their neglecting the children. Attempts to unify the

family failed due to the parents’ continued positive drug tests. When the Department could not

find suitable family members for placement of the children, the Department took possession of the

children and filed a petition seeking termination of the parent-child relationship between the

parents and the children.

        On August 8, 2017, Mother and Father, together with their attorneys and the other parties

in the case, signed a mediated settlement agreement under section 153.0071 of the Family Code.

TEX. FAM. CODE ANN. § 153.0071(c)–(f) (West Supp. 2017). In the agreement, Father agreed that

his parental rights would be terminated under section 161.001(b)(1)(O) of the Family Code, failing

to comply with the provisions of a court order that established the actions necessary for a parent

to obtain the return of a child. Id. § 161.001(b)(1)(O) (West Supp. 2017). The agreement also

provided that the Department would conduct home studies of the children’s grandfathers, and if

the children were placed with one of the grandfathers, then Father would be entitled to visitation

with the children on at least a quarterly basis. The agreement also stated that it was in the best

interest of the children.

        Father was represented by appointed counsel at the time he signed the mediated settlement

agreement. At the final “prove-up” hearing leading to termination of Father’s parental rights,

Father was present, but he was not represented by counsel. At the beginning of the hearing, the


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trial court stated, “But y’all told me y’all had an MSA on it before the lawyer withdrew, correct?

The assistant district attorney answered, “Yes, Your Honor.” The record does not show whose

lawyer the trial court referred to, and the record contains no motion to withdraw from Father’s

attorney.

       At the final hearing, the Department’s case worker testified that Father failed to complete

drug testing as required by a court order. She also testified that home studies on the grandfathers

were not approved and that the children were not placed with either grandfather. The CASA

supervisor testified she believed that the parents’ failure to complete the services meant the parents

did not have the information and education to provide a safe and stable environment for the

children. Both the caseworker and the CASA supervisor testified they wanted the trial court to

adopt the mediated settlement agreement. Father was present at these hearings, but he had no

attorney representation. The trial court did not offer Father the opportunity to examine the

witnesses. Nor did the court offer Father the opportunity to testify or to present a case in chief.

The final judgment terminated Father’s parental rights, finding under section 161.001(b)(1)(O) of

the Family Code that Father failed to comply with a court order that established the actions

necessary for Father to obtain the return of the children, and under section 161.001(b)(2) that

termination was in the best interest of the children.

                                       Standard of Review

       In Texas, an indigent parent has a statutory right to appointed counsel in

a parental-rights termination case. FAM. § 107.013(a)(1) (West Supp. 2017); In re M.S., 115

S.W.3d 534, 544 (Tex. 2003). An attorney appointed to represent an indigent parent in a

parental-rights termination case continues to serve in that capacity until the case is dismissed, the

date all appeals from an order terminating parental rights are exhausted, or the date the attorney is




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relieved of his duties or is replaced by another attorney after a finding of good cause on the record.

FAM. § 107.016(3) (West Supp. 2017)

       This statutory right to counsel “embodies the right to effective counsel.” In re M.S., 115

S.W.3d at 544; see also In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010). In evaluating claims of

ineffective assistance of counsel in a termination case, we apply the two-pronged standard

applicable to criminal cases set out in Strickland v. Washington, 466 U.S. 668 (1984). In re J.O.A.,

283 S.W.3d 336, 341–42 (Tex. 2009); In re M.S., 115 S.W.3d at 544–45. To establish ineffective

assistance of counsel under Strickland, a parent has the burden to show (1) counsel’s performance

was deficient and (2) the deficient performance prejudiced the defense in a manner so serious as

to deny the parent a fair and reliable trial. In re J.O.A., 283 S.W.3d at 342 (citing In re M.S., 115

S.W.3d at 545); see also Strickland, 466 U.S. at 687.

       “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 must primarily focus on

whether counsel performed in a ‘reasonably effective’ manner.” In re M.S., 115 S.W.3d at 545

(citing Strickland, 466 U.S. at 687); see also In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006).

“[C]ounsel’s performance falls below acceptable levels of performance when the ‘representation

is so grossly deficient as to render proceedings fundamentally unfair.’” In re M.S., 115 S.W.3d at

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

review of trial counsel’s performance, there is “‘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. (quoting Strickland, 466 U.S. at 689). Only when trial

counsel’s conduct was so outrageous that no competent attorney would have engaged in it will the

challenged conduct constitute ineffective assistance. Id. The record must affirmatively support a

claim that trial counsel provided ineffective assistance. In re L.C.W., 411 S.W.3d 116, 127 (Tex.

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App.—El Paso 2013, no pet.). When the record is silent concerning the reasons for trial counsel’s

actions, we do not engage in speculation to find ineffective assistance of counsel. P.W. v. Dep’t

of Family & Protective Servs., 403 S.W.3d 471, 476 (Tex. App.–Houston [1st Dist.] 2013, pet.

dism’d w.o.j.).

       Under Strickland’s second prong, a parent must show trial counsel’s deficient performance

prejudiced his defense. In re M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 687. To

show prejudice, the parent must show there is a reasonable probability that, but for counsel’s error,

the result of the proceeding would have been different. In re M.S., 115 S.W.3d at 550. “A

‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome of the

proceeding.” P.W., 403 S.W.3d at 476; see also Strickland, 466 U.S. at 694.

       Prejudice may be presumed when a defendant is denied counsel at a “critical stage” of the

litigation. In re A.F., 05-17-00392-CV, 2017 WL 4116945, at *4 (Tex. App.—Dallas Sept. 18,

2017, no pet.) (mem. op.) (citing United States v. Cronic, 466 U.S. 648, 659 (1984)). “In such

circumstances, ‘[n]o specific showing of prejudice [is] required,’ because ‘the adversary process

itself [is] presumptively unreliable.’” Id. (quoting Lockwood v. Tex. Dep’t of Family & Protective

Servs., No. 03-12-00062-CV, 2012 WL 2383781, at *5 (Tex. App.—Austin June 26, 2012, no pet.)

(mem. op.) (quoting Cronic, 466 U.S. at 659)).

                                             Analysis

       Although the trial court had appointed Father counsel, the attorney representing Father did

not appear at the final hearing at which the State presented the mediated settlement agreement.

The trial court mentioned at the hearing that an attorney had withdrawn, but the court did not

identify the attorney. Nothing in the record shows Father’s attorney had moved to withdraw from

representing Father or that Father had replaced the attorney.




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       Father was denied counsel when his appointed attorney did not appear at the final hearing

presenting the mediated settlement agreement. It was at this hearing that the merits of the State’s

case was presented. Counsel’s failure to appear was not mere strategy; it left Father unrepresented

at the hearing that would determine whether his parental rights would be terminated.

       The Austin Court of Appeals has concluded that the hearing at which a mediated settlement

agreement is presented that results in termination of parental rights is a critical stage of the

litigation. See Lockwood v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00062-CV, 2012

WL 2383781, at *6 (Tex. App.—Austin June 26, 2012, no pet.) (mem. op.). We agree with the

Austin court that a hearing at which a trial court is asked to accept a mediated settlement agreement

providing for termination of parental rights is a critical stage of the litigation at which the parent

is entitled to representation. There are few ways that a parent may oppose the entry of a judgment

based on a proper, signed mediated settlement agreement. See FAM. § 153.0071(d) (requirements

for mediated settlement agreement); id. § 153.0071(e-1) (two statutory conditions under which

trial court may decline to enter judgment on mediated settlement agreement). However, the

parent’s right to representation is necessary to insure that the requirements for a mediated

settlement agreement were followed and that no defense applies. See id. Representation is also

necessary to insure that any judgment based on the agreement follows the agreement. As the

Austin court stated in Lockwood,

       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 conclude
       that the adversarial process employed here was so unreliable that a presumption of
       prejudice is warranted.

Lockwood, 2012 WL 2383781, at *6. That statement is equally applicable in this case.




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       We agree with the parties that Father had no representation at a critical stage of the

litigation to terminate his parental rights. In this situation, Father lacked effective assistance of

counsel, and prejudice is presumed. We sustain Father’s issue on appeal.

                                            Conclusion

       We reverse the trial court’s judgment as to Father, and we remand the cause to the trial

court for further proceedings.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE

180291F.P05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF B.H. AND J.H.,                   On Appeal from the 305th Judicial District
 CHILDREN                                            Court, Dallas County, Texas
                                                     Trial Court Cause No. JC-16-00779-X.
 No. 05-18-00291-CV                                  Opinion delivered by Justice Myers.
                                                     Justices Lang-Miers and Boatright
                                                     participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's
judgment ordering and decreeing that appellant Dustin Hunt, the biological father, is terminated,
foreclosed, and divested of any and all rights to the children. In all other respects, the trial
court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further
proceedings consistent with this opinion.


Judgment entered this 18th day of September, 2018.




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