                           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

                                          ------------

                          MEMORANDUM OPINION 1


                                          ------------

                                   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
