in the Interest of J.L., A.L., and J.L., Children

• Court: Court of Appeals of Texas
• Decided: January 10, 2020
• Docket: 06-19-00078-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-19-00078-CV

IN THE INTEREST OF J.L., A.L., AND J.L., CHILDREN

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18C0315-102

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION Kelly’s parental rights to her children, Jeb, Amber, and James, were terminated in a suit

brought by the Texas Department of Family and Protective Services (Department). 1 Bob’s

parental rights to Amber and James were also terminated. 2 After a bench trial, the trial court found

that (1) Kelly and Bob knowingly placed or knowingly allowed the children to remain in conditions

or surroundings that endangered their physical or emotional well-being, (2) Kelly and Bob engaged

in conduct or knowingly placed the children with persons who engaged in conduct that endangered

their physical or emotional well-being, (3) Kelly and Bob knowingly engaged in criminal conduct

that resulted in their conviction of an offense and confinement or imprisonment and inability to

care for the children for not less than two years from the date of filing the petition, and

(4) termination of Kelly’s and Bob’s parental rights was in the children’s best interests. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(D), (E), (Q), (2) (Supp.). Kelly and Bob appeal.

In her sole point of error on appeal, Kelly argues that she received ineffective assistance

of counsel because counsel did not challenge the trial court’s aggravated circumstances finding.

Bob is represented on appeal by court-appointed counsel who has filed a brief in accordance with

the requirements of Anders v. California, 386 U.S. 738 (1967). Court-appointed counsel has

concluded, after a thorough review of the record, that Bob’s appeal is frivolous and without merit.

We find that Kelly has not shown that her counsel rendered ineffective assistance. We also

agree that no arguable issues are presented in Bob’s appeal. Therefore, we affirm the judgment of

1 In this opinion, we refer to the children and their parents by pseudonyms in order to protect the children’s identities. See TEX. R. APP. P. 9.8. 2 Jeb’s biological father signed an affidavit of relinquishment of parental rights and is not a party to this appeal. 2 the trial court. However, in consideration of appointed counsel’s continuing obligation to represent

Bob for purposes of any further appellate review, we deny Bob’s counsel’s motion to withdraw.

I. Factual and Procedural Background

Bob and Kelly had another child, Darrin. The affidavit in support of the Department’s

petition for removal of all the children alleged that Darrin suffered a subdural hematoma after

being beaten at home by Bob while Kelly was in the home. At a hearing to determine whether

aggravated circumstances were present, the Department presented evidence showing that Bob and

Kelly took four-year-old Darrin to the hospital with fresh bruises all over his body and that both

Bob and Kelly had a history of physical abuse against their children. The testimony also

established that Darrin died as a result of his injuries and that Bob was being charged with

homicide. As a result of this evidence, and the Department’s recitation of Bob and Kelly’s lengthy

history of involvement with Child Protective Services (CPS), the trial court made a finding of

aggravated circumstances pursuant to Section 262.2015 of the Texas Family Code, which reads,

in relevant part:

(a) The court may waive the requirement of a service plan and the requirement to make reasonable efforts to return the child to a parent and may accelerate the trial schedule to result in a final order for a child under the care of the Department of Family and Protective Services at an earlier date than provided by Subchapter D, Chapter 263, if the court finds that the parent has subjected the child to aggravated circumstances.

(b) The court may find under Subsection (a) that a parent has subjected the child to aggravated circumstances if:

....

(2) the child or another child of the parent is a victim of serious bodily injury . . . inflicted by the parent . . . ; [or] 3 (3) the parent has engaged in conduct against the child or another child of the parent that would constitute an offense under the following provisions of the Penal Code:

(A) Section 19.02 (murder); [or]

(H) Section 22.04 (injury to a child, elderly individual, or disabled individual) . . . .

TEX. FAM. CODE ANN. § 262.2015 (footnote omitted) (citation omitted). By the time of the next

April 5, 2018, status hearing, Kelly had also been incarcerated. Because neither Kelly nor Bob

challenged the aggravated circumstances findings, the trial court entered an order on April 5 that

waived the requirements of the Department to offer a family service plan and make reasonable

efforts to return the children to their parents.

At the final hearing, Todd Aultman, the Interim Chief of the Wake Village Police

Department, testified that an autopsy report revealed that Darrin’s subdural hematoma was the

cause of his death and that Bob and Kelly’s explanation of how the injury occurred was “just not

plausible.” According to Aultman, Darrin was injured at home while Jeb was at home.

Aultman testified that Bob was tried and found guilty of felony murder and was sentenced

to life imprisonment. Aultman arrested Kelly for injury to a child because she knew of Darrin’s

injuries and did not protect him or report abusive incidents. He testified that Kelly was found

guilty of injury to a child and was sentenced to ninety-nine years’ imprisonment. Certified

judgments of conviction for Bob’s and Kelly’s offenses were admitted into evidence.

4 Aultman testified that both parents failed to provide a safe home for their children. Chantel

Finley, a CPS caseworker, and Melinda Cree, a representative of Court Appointed Special

Advocates, testified that it was in the children’s best interests for their parents’ rights to be

terminated. Testimony was also presented about the children’s improved conditions in their

current placements. After hearing this evidence, the trial court entered the parental-rights

termination order.

II. Kelly Has Not Shown that Her Counsel Rendered Ineffective Assistance

In her sole issue on appeal, Kelly argues that her appointed counsel has rendered ineffective

assistance. “In parental-rights termination cases in Texas . . . brought by the Department[,] an

indigent person has a statutory right to counsel.” In re K.O., 488 S.W.3d 829, 834 (Tex. App.—

Texarkana 2016, pet. denied) (alteration in original) (quoting In re J.M.A.E.W., No. 06-14-00087-

CV, 2015 WL 1119761, at *3 (Tex. App.—Texarkana Mar. 13, 2015, no pet.) (mem. op.) (citing

TEX. FAM. CODE ANN. § 107.013(a) (West 2014); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003))).

“This statutory right to counsel also embodies the right to effective counsel.” Id. (quoting

J.M.A.E.W., 2015 WL 1119761, at *3); see In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010)).

“Thus, a parent may challenge an order of termination on the ground that court-appointed counsel

rendered ineffective assistance.” In re Z.C., No. 12-15-00279-CV, 2016 WL 1730740, at *2 (Tex.

App.—Tyler Apr. 29, 2016, no pet.) (mem. op. & order) (citing M.S., 115 S.W.3d at 544–45; In re

J.O.A., 283 S.W.3d 336, 341 (Tex. 2009)).

“The standard used for parental-rights termination cases is the same as that used in criminal

cases and is set forth in Strickland.” K.O., 488 S.W.3d at 834 (quoting J.M.A.E.W., 2015 WL

5 1119761, at *3 (citing Strickland v. Washington, 466 U.S. 668 (1984)). “The right to effective

assistance of counsel does not guarantee, however, ‘errorless or perfect counsel whose competency

of representation is to be judged by hindsight.’” Id. (quoting J.M.A.E.W., 2015 WL 1119761, at

*3); see Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

“To prevail on [her] ineffective assistance claim, [Kelly] ‘must prove by a preponderance

of the evidence that (1) [her] counsel’s performance was deficient, that is, that it fell below an

objective standard of reasonableness; and (2) it is reasonably probable that, except for [her]

counsel’s unprofessional errors, the outcome of the proceeding would have been different.” K.O.,

488 S.W.3d at 834 (first, third, and fourth alterations in original) (quoting J.M.A.E.W., 2015 WL

1119761, at *3) (citing Strickland, 466 U.S. at 687–88, 694). “Failure to satisfy either prong of

the Strickland test is fatal.” Id. at 834–35 (quoting J.M.A.E.W., 2015 WL 1119761, at *3) (citing

Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006); Walker v. Tex. Dep’t of

Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied)).

To support a finding that Kelly’s trial counsel was ineffective, the trial record must

affirmatively demonstrate counsel’s deficiency. Id. at 835. “In reviewing trial counsel’s

performance, we take into account the circumstances surrounding the case and focus primarily on

whether the manner of his performance was reasonably effective.” Id. (quoting J.M.A.E.W., 2015

WL 1119761, at *3) (citing In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (per curiam); M.S.,

115 S.W.3d at 545)). “We give great deference to trial counsel’s performance and indulge a strong

presumption that his conduct falls within the wide range of reasonably professional assistance.”

6 Id. (quoting J.M.A.E.W., 2015 WL 1119761, at *3) (citing H.R.M., 209 S.W.3d at 111; M.S., 115

S.W.3d at 545)). “This includes the possibility that his actions were strategic.” Id. (quoting

J.M.A.E.W., 2015 WL 1119761, at *3) (citing H.R.M., 209 S.W.3d at 111; M.S., 115 S.W.3d at

545)). “‘We only find ineffective assistance if the conduct is’ so outrageous that no competent

attorney would have engaged in it.” Id. (quoting J.M.A.E.W., 2015 WL 1119761, at *3; H.R.M.,

209 S.W.3d at 111).

Kelly argues that her counsel’s failure to object to the aggravated circumstances finding

“precluded her from obtaining [family based] services from the [D]epartment and absolved the

Department of any duty to seek reunification or family placement for her children.” At the status

hearing, Kelly’s counsel explained that Kelly was not challenging the aggravated circumstances

determination because she was “charged in a criminal matter related to this [case],” and he had

advised her not to testify to prevent her from making incriminating statements. Counsel added,

“[T]hat’s what her criminal lawyer would recommend as well.” Counsel also said that he had

explained to Kelly that she was still entitled to a jury trial on the issue of termination of her parental

rights and that Kelly was not “conceding anything” but did not “necessarily want[] to have the

hearing” contesting the aggravated circumstances finding. Counsel clarified, “We’re not

conceding that her position would be that [the finding of aggravated circumstances] was true or

anything like that. What we’re saying is we’re not going to contest it. We don’t want to reopen

the hearing . . . for other strategy reasons.”

The record here shows that Kelly was facing pending criminal charges for injury to a child.

As a result, counsel advised Kelly not to contest the aggravated circumstances finding because

7 doing so could require her testimony. Based on the facts recited above, it was well within reason

for counsel to believe that, when called to testify, Kelly would either incriminate herself or commit

perjury. We find that the record does not firmly establish counsel’s deficiency, and we can

determine strategic reasons for counsel’s decision not to object to the aggravated circumstances

finding. Thus, we conclude that Kelly has failed to demonstrate that her counsel’s representation

constituted ineffective assistance. 3 We overrule Kelly’s sole point of error.

III. No Arguable Issues Are Presented in Bob’s Appeal

The procedures set forth in Anders v. California are applicable to an appeal from a trial

court’s order terminating parental rights when an appellant’s appointed appellate counsel

concludes that there are no nonfrivolous issues to assert on appeal. See In re P.M., 520 S.W.3d

24, 27 n.10 (Tex. 2016) (per curiam) (citing In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998)); In re

P.M.H., No. 06-10-00008-CV, 2010 WL 1794390, at *1 (Tex. App.—Texarkana May 6, 2010, no

pet.) (mem. op.). The Anders brief filed by Bob’s counsel presents a professional evaluation of

the record demonstrating why there are no arguable grounds for reversal. Counsel has established

that she provided Bob with a copy of the brief and the appellate record and also notified Bob of

his right to file a pro se response. By letter dated September 30, 2019, this Court informed Bob

that any pro se response was due on or before October 30, 2019. Bob did not exercise his right to

file a pro se response.

3 As a result of Kelly’s conviction and the testimony at the final hearing, we also conclude that Kelly has not shown that the result of the proceeding would have been different absent counsel’s alleged ineffective assistance. 8 Court-appointed counsel’s brief meets the requirements of Anders by providing a

professional evaluation of the record and stating why there are no arguable grounds for reversal

on appeal. See Anders, 386 U.S. at 744. Having thoroughly reviewed the record and counsel’s

brief, we agree with counsel’s assessment that the appeal is frivolous and without merit. We find

nothing in the record that could arguably support the appeal. See id. Accordingly, we affirm the

trial court’s final order terminating Bob’s parental rights to Amber and James.

However, we deny Bob’s counsel’s motion to withdraw. In the parental-rights termination

context, “counsel’s belief that the client has no grounds to seek further review from the court of

appeals’ decision” is not “good cause” sufficient to justify counsel’s withdrawal. See P.M., 520

S.W.3d at 27. Instead, counsel’s duty to her client extends through the exhaustion or waiver of

“all appeals in relation to any final order terminating parental rights.” TEX. FAM. CODE ANN.

§ 107.016(3)(B). If Bob wishes to pursue an appeal to the Texas Supreme Court, “appointed

counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for

an Anders brief.” P.M., 520 S.W.3d at 27–28.

IV. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens Justice

Date Submitted: January 7, 2020 Date Decided: January 10, 2020