                                  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.




In the Interest of C.L.                                                               Page 2
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


In the Interest of C.L.                                                               Page 5
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.

In the Interest of C.L.                                                                            Page 8
        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


In the Interest of C.L.                                                              Page 10
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


In the Interest of C.L.                                                              Page 11
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]




In the Interest of C.L.                                                               Page 12
