In re Interest of J.J.

647 S.W.3d 524

In the INTEREST OF J.J. and L.J., Children

No. 06-22-00016-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: June 1, 2022

Date Decided: June 2, 2022

John Mark Burgess, Burgess Law Firm, PLLC, Texarkana, for Appellant.

Eric T. Tai, Office of General Counsel, TDFPS, Austin, for Appellee.

Carly Slack Anderson, Texarkana, Civil - Ad Litem for J.J. and L.J., Children.

Before Morriss, C.J., Stevens and van Cleef, JJ.

OPINION

Opinion by Justice van Cleef Father appeals the termination of his parental rights to his children, seven-year-old J.J. and four-year-old L.J.¹ In his sole point of error on appeal, Father argues that his counsel rendered ineffective assistance arising from an alleged conflict of interest due to counsel's prior representation of Mother, who signed a voluntary affidavit of relinquishment as to J.J. and L.J. Because we conclude that Father has neither shown that counsel's assistance was deficient nor that he was prejudiced by any alleged deficiency, we overrule Father's ineffective assistance claim and affirm the trial court's judgment.

I. Factual and Procedural Background

The Texas Department of Family and Protective Services petitioned to terminate Mother's and Father's parental rights, alleging the same grounds against both parents. In a suit filed by the Department "in which termination of the parent-child relationship or the appointment of a conservator for a child is requested, the court shall appoint an attorney ad litem to represent the interests of ... an indigent parent of the child who responds in opposition to the termination or appointment." TEX. FAM. CODE ANN. § 107.013(a)(1). The record demonstrates that Mother and Father, who were in a relationship and sought the return of their children, were indigent and initially appointed the same counsel to represent them.

In several pretrial hearings, the Department questioned counsel's joint representation. During a March 4, 2021, hearing, the Department asked the trial court whether the same attorney was permitted to represent both Mother and Father. The trial court reasoned that appointment of separate counsel was not required because Mother and Father were "rowing the same boat" and received their counsel's assurance that he would inform the trial court of any conflict of interest, should it arise. At a review hearing held on August 25, the Department informed the trial court of its belief that Mother and Father were no longer together. Their counsel said he was not sure if the break-up was permanent, believed it may have occurred based on an agreement to get Mother, who was a drug-addict, "some help," and said he would have to inquire whether Mother and Father were still "on the same page" before deciding whether he could continue representing them both.

Soon, counsel became aware of a potential conflict of interest. In September, counsel informed the trial court that Mother and Father had made a permanent split. As a result, the trial court appointed another attorney to represent Mother. After Mother's new counsel was appointed, Mother decided to voluntarily relinquish her parental rights to J.J. and L.J. instead of seeking their return.

At trial, Father, who wished for J.J. and L.J. to be returned to his care, admitted that he had used methamphetamine daily and that the children were removed from him because J.J. tested positive for methamphetamine and L.J. tested positive for marihuana. Father testified that he was "an addict and an alcoholic," did "terrible things to [himself] and to [his] family," had "continuously failed to be a good parent," and had allowed the children to be with Mother, who was also a drug addict. Father also acknowledged that he was on deferred adjudication community supervision for the offense of abandoning or endangering a child. Chantel Finley, the Department's caseworker, testified that the trial court had ordered Father to participate in a family service plan, but Father had failed to complete all required counseling sessions² and had not maintained full employment.

After hearing this evidence, the trial court terminated Father's parental rights to J.J. and L.J. Specifically, the trial court found that he (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being, (2) engaged in conduct or knowingly placed the children with others who engaged in conduct that endangered the children's physical or emotional well-being, (3) was placed on deferred adjudication community supervision for being criminally responsible for the serious injury of a child for conduct constituting the offense of abandoning or endangering a child, and (4) failed to comply with provisions of a court order that established the actions Father was required to complete to obtain the children's return. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (L), (O). The trial court also found that termination of Father's parental rights was in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2).

II. Standard of Review

In his sole point of error, Father argues that his counsel rendered ineffective assistance. "[A]ll parents appearing in opposition to state-initiated parental-rights termination suits" are entitled to "the right to effective counsel regardless of whether counsel is appointed or retained." In re D.T. , 625 S.W.3d 62, 71 (Tex. 2021). "Ineffective-assistance-of-counsel claims in parental-[rights] termination cases, as in criminal cases, are governed by the United States Supreme Court's two-prong test articulated in Strickland v. Washington [, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]." Id. at 73 (citing In re M.S. , 115 S.W.3d 534, 544–45 (Tex. 2003) ). "First, the [appellant] must show that counsel's performance was deficient[,] [which] ... requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). "Second, the [appellant] must show that the deficient performance prejudiced the defense[,] [which] ... requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). "A party claiming ineffective assistance of counsel must satisfy both prongs of the Strickland test to succeed." Id. (citing In re M.S. , 115 S.W.3d at 545 ); see In re K.M.H. , 181 S.W.3d 1, 12 (Tex. App.—Houston [14th Dist.] 2005, no pet.), (finding that the second Strickland prong is required for ineffective assistance claims based on conflict of interest in parental-rights termination cases)).³

"Allegations of ineffectiveness ‘must "be firmly founded in the record." ’ " Lampkin v. State , 470 S.W.3d 876, 897 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (quoting Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) )). "The standard of review is much more deferential to trial counsel's actions when the claim is asserted for the first time on direct appeal because ‘[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record,’ and because ‘trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.’ " Id. at 898 n.10 (quoting Rylander v. State , 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (quoting Bone , 77 S.W.3d at 836 ). "When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the record ‘is in almost all cases inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance.’ " Id. at 898 (quoting Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) ).

III. The Record Fails to Establish the First Strickland Prong

"In examining counsel's performance under the first prong, ‘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 D.T. , 625 S.W.3d at 73–74 (quoting In re M.S. , 115 S.W.3d at 545 (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 )). "Counsel's performance falls below acceptable levels only when the ‘representation is so grossly deficient as to render proceedings fundamentally unfair.’ " Id. at 74 (quoting In re M.S. , 115 S.W.3d at 545 (quoting Brewer v. State , 649 S.W.2d 628, 630 (Tex. Crim. App. 1983) )). "We give great deference to counsel's choices and indulge " ‘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 In re M.S. , 115 S.W.3d at 545 (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 )).

Initially, we note that dual representation of parents is specifically allowed under the Texas Family Code. A trial court may appoint a single attorney to represent the interests of both parents who are entitled to appointed counsel if "the court finds that the interests of the parents are not in conflict and that there is no history or pattern of past or present family violence by one parent directed against the other parent, a spouse, or a child of the parties." TEX. FAM. CODE ANN. § 107.013(b). "[I]n deciding whether there is a conflict of interest between parents opposing termination in a single lawsuit, the trial court must determine whether there is a substantial risk that the appointed counsel's obligations to one parent would materially and adversely affect his or her obligations to the other parent." In re B.L.D. , 113 S.W.3d 340, 342–43 (Tex. 2003). Because the trial court initially appointed the same counsel for Mother and Father, it determined that their interests were not in conflict, and that finding was not...