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

No. 06

- 22

- 00016

- CV

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

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 20C1329

- 102

Before Morri ss, C.J., Stevens and van Cleef , JJ. Opinion by Justice van Cleef2 

### O P I N I O N Father appeals the termination of his parental rights to his children, seven - year - old J.J. and four

- year - old L.J. 1 I n his sole point of error on appeal, Father argues that his c ounsel rendered ineffective assistance arising from an alleged conflict of in terest 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 t hat 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 Pr ote ctive Services petitioned to terminate Mother ’ s and F ather’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 conservato r f

or 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.” T EX . F AM . C ODE A NN . § 107.013 (a)(1)
. The record de mo n st ra tes 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 pre trial hearings, the Department questioned counsel’s joint repre sen t at ion. 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

1 To protect the child ren’ s identity, we refer to them by their ini tials and to their parents as Mother and F ather. See T EX . R. A PP . P. 9 .8.3

separate counsel was not required because Mother an d F a th er 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 th e trial court of its belief th a t M o th er 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 wh e the r Mo t he r and Father were still “on the same page” before deciding whether he could continue rep resenting them both
. Soon, counsel became aware of a potential conflict of interest. In September, counsel informed the trial court that Mother and Father had mad e 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 ret u rn . At trial, Father , who wished for J.J. and L.J. to be retur ned 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 marihu a n a. Fath er testified that he was “an addict and an alcoh olic,” 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 a ck nowled ge d 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 a4

family servic e pl an, bu t Father had failed to complete all required counseling sessions 2 and had not maintained full employment
. After hearing this evidence, t he trial court terminat ed Father’s parental rights to J.J. and L.J. Specifically, the trial court found th a t he (1) kn owingly placed or knowingly allowed the children to remain in conditions or surroundings t h at endangered their physical or emotional well

- being, (2) engaged in conduct or knowingly placed the children with others who engaged in conduct th at end a n ger ed t he 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 chi ld for conduct constituting the offense of abandoning or endangerin g a ch i l d , 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 T EX . F AM . C ODE A NN . § 161.001(b)(1)(D), (E), ( L), (O ). The trial court also found that termin a t ion of Fa ther’s parental rights was in the children’s best interests. See T EX . F AM . C ODE A NN . § 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 appeari ng i n o ppos itio n 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 clai ms in p aren ta l

- [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

2 Donal d Eugene Wi nstead, III, Father’s psychologist, testified that Fath er needed additional counseling before he could be considered capable of provi ding for the children’s physica l and emotional needs
.5

(1984)]. ” Id
. at 73 (citing In re M.S. , 115 S.W.3d 544, 544

– 4 5 ( T ex. 200 3 ) )
. “F irst, t he [appellant] must show that counsel ’ s performance was deficient [,] [which]
. . . r equires showing that counsel made errors so serious that counsel was not functioning as the ‘ counsel ’ guaranteed the defendant by the Sixth Amendm ent. ” I d. (quo ting Stri ck land , 466 U.S. at 687 ). “ 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 t rial wh ose result is r eliable. ” I d. (quoting Strickland , 466 U.S. at 687 )
. “ 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. Ap p.
— 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

“ All egations 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. 2003) ( quoting Thompson v. Stat e , 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 fact s tha t d o no t ap pear in t he appellate record , ’ and because

‘ trial counsel should ordinarily be afforded an opport unity to explain his actions before being

3 Father argues, b a sed on an opinion penned by o ur si ster court in a criminal case, that he is not required to show prejudic e under Strickland ’s second prong. See Johnson v. State , 583 S.W.3d 300, 311 (Tex. App.

— Fort Worth 2019, pet . ref’d) (per curiam) (mem. op.) . This b o dy of caselaw dea ls with exce ption s to the second prong in the context of counsel’s dual representation o f codefendants or multiple defendants tried separately for the same offense and does not apply here. See id
. ; Mickens v. Taylor , 535 U.S. 162, 166

– 74 (2002). Moreover , the Texas Supre me Co urt has not created a n exception to the requirement of a parent to show prejudice under Strickland ’s second prong in the context of an allege d conflict of interest in a parent al

- rights termination case
.6

denounced as ineffective. ’ ” Id. at 898 n. 10 (quoting Rylander v. State , 101 S.W.3d 107, 110

– 11 (Tex
. Crim
. A pp. 2003 ) (quotin g Bone , 77 S.W.3d a t 83 6)
. “ 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 r easona ble sta ndar d of perf or mance. ’” 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 ac count all of t he circum st ances surround ing 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 68 7) )
. “ Cou nsel ’ s p erformanc e falls below ac ceptable 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, 6 30 (T ex. C rim. 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 counse l ’ s actions

are s trate gic. ’ ” Id
. ( q uoting In r e M.S. , 115 S. W.3d at 545 (quoting Strickland , 466 U.S. at 689) )
. Initially, we note that dual representation of parents is specifically allowed under the Texas Family Code. A trial court may appoint a singl e attorney to r eprese nt th e int eres ts of bot h parents who ar e entitled to appointed counsel if “t he 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 one7

parent d irected against the o ther paren t, a spouse, or a child of th e parties .” T EX . F AM . C ODE A NN . § 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 substa ntial risk tha t the app oi nted 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 co urt initially appointed the s ame co unsel for Moth er and Fa th er, it determi ned that their interests were not in conflict , and that finding was not challenged. 4 As soon as counsel became aware of a potential conflict, he withdrew from Mother’s representation, and new counsel was appoin ted to Moth er. Even so, Fath er argues that a conflict of interest prevented counsel’s continued representation of him. “To suppor t a finding that [ Father’s ] trial counsel was ineffective, the trial record must affirmatively demonstrate his deficiency.” In re C.H.M
. , No . 06

- 19

- 00108

- C V, 2020 WL 122 1005, at *2 (Tex. App.

— Texarkana Mar. 13, 2020, no pet.) (mem. op.) (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 Bermea v. Tex. Dep ’ t of F amil y & Prote ct ive Servs
. , 26 5 S.W.3d 34, 43 (Tex. App.

— Houston [1st Dist.] 2008, pet. denied)) )
. “ We will not speculate to find trial counsel ineffective when the record is silent on counsel ’ s reasoning or strategy. ” In re K.L.L.H
. , No. 06

- 09

- 00067

- CV, 2010 WL 87043 , a t *6 (Tex. Ap p.
— Texarkana Jan. 12, 2010, pet. denied) (mem. op.) (citing Robinson

4 See In re S .J

. , No. 06

- 09

- 00 043

- CV, 2009 WL 2 04807 8, at *2 (T ex. App.

— Texarkana July 16, 2009, no pet.) (mem. op.) ( citing In re B.L.D
. , 113 S.W.3d at 344

– 45) (a challenge to dual representation under Section 107.013(b) must be preserved with the trial court before i t can be raised o n appeal).8

v. State , 16 S .W.3d 808, 813 n. 7 (Tex. Crim. App. 2000) ; In re M.C.T
. , 250 S.W.3d 161, 172 (Tex. App.

— Fort Worth 2008, no pet.) )
. On a silent recor d like thi s one , we ass ume counsel’s

ac tions were “ due to any strategic motivation that can be imagined .” Id. This is because “ [t] he challenged conduct will constitute ineffective assistance only when ‘ the conduct was so outrageous that no competen t atto rney w ould have engaged in it. ’ ” In re D.T. , 625 S.W.3d at 74 ( quoting In re M.S. , 115 S.W.3d at 545 (quoting Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)) )
. Father contends that h is counsel labored under a conflict of interest creat ed by h is pri or
r epres entation of Mother. “T y pically, courts look to the ethical rules promulgated by the State Bar to evaluate conflicts of interest in civil cases. ” In re B.L.D
. , 113 S.W.3d at 346. Father cites to Rule 1.09 of the Texas Disciplinary Rules of Professio nal Conduct whi c h, among othe r things, prohibits “ a lawyer who personally has formerly represented a client in a matte r ” from “represent [ ing ] another person in a matter adverse to the former client [ 5 ]

. . . if the representation in reason able pr o bability w ill involve a v i olation of Ru le 1.05; or
. . . if it is the same or a substantially related matter,” “ [ w ] ithout prior consent.” T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.09(a)(2 )

– ( 3). Rule 1.05 prohibits a lawyer from revealing confid ential i nformation of a client or former client unless “the client consents after consultation.” T EX . D ISCIPLINARY R ULES P ROF ’ L C ONDUCT R. 1.05(c)(2). Under both rules cited by Father, Mother’s consent to counsel’s continued representation of Father woul d have r emoved any

5 Thi s lan guage “conc erns the situation where a lawyer once personally repre sented a client and now wishes to represent a second clien t against that former client , ” T EX . D ISCIPLINARY R U LES P ROF ’ L C ONDUCT R. 1.09, cmt. 2 , a sit u ation not present here.9

potential c onf

lict. Because the record is silent as to counsel’s reasons, we may presume that his continued represen tation of Father was blessed by Mother. We also find that counsel could have believed that he was not required to with draw from Father’s r epresentat ion because there w as no actual conflict of interest. “ [U]ntil a defendant shows that his counsel a ctively represented conflicting interests , he has not established the constitutional predicate for his claim of ineffective as sistance. ” Acosta v . State , 2 33 S.W.3d 349, 355 (Tex. Crim. App. 2007) (quoting Cuyler v. Sullivan , 446 U.S. 335, 350 (1980) (orig. proceeding) )
. The record show s that, even though Mother signed a voluntary affidavit of relinquishment, she still wished f or Father to retai n his par ent al rights
. On this silent record, we may presume that counsel was aware of Mother’s intention to relinquish her parental rights before she was appointed new counsel and that counsel determined that his withdrawal from Father’ s represe n tation was unnecessar y because Mo the r ’ s and Father ’s interests were aligned since they both wished for Father to retain his parental rights
. Next, Father argues that there was a potential conflict because his counsel’s representation “was likel y to requ i re ‘shifti ng blame’ upo n Mother
. ” As a n example, Father argues that counsel should have questioned h im at trial about problematic living conditions to establish that they were “primarily caused by Mother.” Even assuming this fact wer e true, counsel coul d have dete rmi ned that any b lame shiftin g would have only harmed Father since it would have proved the Department’s allegations that (1) he knowingly allowed the children to remain in conditions or surroundings that endangered the ir physical or emotional w e ll

- bein g a nd (2) he k nowin gly p laced th e children with Mother, who engaged in conduct that endangered their10

physical or emotional well

- being
. In other words, counsel could have determined that Mother ’ s and Father’s interests rem ained aligned and that bla m e - shift ing wa s no t a reas onable trial

s tra tegy
. See In re K.M.H. , 181 S.W.3d at 11 & 12 (where the Department’s petition for termination is “ based not only on each parent ’ s own conduct endangering [a child] , but upon each paren t ’ s knowing exposure of [a c hild] to t he othe r parent ’ s enda ngering conduct ,” there is “no substantial risk that trial counsel’s obligations to [one parent] would materially and adversely affect [counsel’s] representation of [the other parent ]”) ; see also Hurley v. State , 606 S.W.2d 887, 890 ( T ex. C rim. App
. [Pane l O p.] 1 980) (“ [a] common defense often gives strength against a common att ack ” ) (quoting Holloway v. Arkansas , 435 U.S. 475, 483 (1978) ); In re B.L.D
. , 113 S.W.3d at 347
. Based on the silent rec ord before us, we conclude Fa t her has fa iled to show that co unsel’s p erformance was deficient . As a result, we find that the record failed to establish the first Strickland prong. IV . The Record Fails to Establish the Second Stricklan d Prong Under the secon d prong of the Strickland test, Father m ust s how that his co unsel ’ s “grossly deficient” performance caused harm or prejudice , “render[ing the ] proceedings fundamentally unfair.” In re K.L.L.H. , 2010 WL 87043, at *8 ( quoting In re M.S. , 115 S.W.3d at 545 )
. “ In other words, [Fathe r ] had to sh ow ‘ there is a re asonabl e pr obability that, but for counsel ’ s unprofessional error(s), the result of the proceeding would have been different.” ’ Id
.11

(quoting In re M.S. , 115 S.W.3d at 550 )
. 6 “[T] o satisfy this prong,
. . . conclusory statemen t s of harm a re not en ough. ” In re L .G.D
. , No. 06

- 17

- 00061

- CV, 2017 WL 4507673, at *3 (Tex. App.

— Texarkana Oct. 10, 2017, pet. denied) (mem. op.)
. Here, Father makes no argument in his brief relevant to Strickland ’s second prong , and we fail to see how Fa t her was harmed by his couns el’s continu ed representation. “Only one predicate finding under Section 161.001[b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the c hild’s best interest.” In re L.E
. S
. , 471 S.W.3d 91 5, 92 3 (Te x. App.

— Texa rka na 2015, no pet .) (quoting In re O .R.F. , 417 S.W.3d 24, 37 (Tex. App.

— Texarkana 2013, pet. denied) )
. Father testi fied at trial that the children were removed because they tested p ositive for drugs , and he made se v eral admission s about his drug

use , par enting deficiencies, and placement on deferred adjudication co mmunity supervision for abandoning or endangering a child
. Thu s, Father’s own testimony established the Dep artment’s Gro und s D, E, and L allegations and s upported the t rial court’s best

- interes t findi ng s . In light of Father’s testimony in this case, nothi ng shows that there was a reasonable probability that his paren tal rights would not have been terminated absent any al leged ineffective assistance by

cou n se l. Simply p ut, the seco nd St rickland prong h as not been met. Because we find that Father has shown neith er that counsel’s assistance was deficient nor that he was prejudiced by any alleged deficiency, we over rule Father’s sole point of error on appeal
.

6 “ We cond uct the review ‘ to determine harm as if
. . . sufficiency had been pres erved
. . . understanding that the evidentiary burd en in such cases is “ clear and convincing. ” ’” In re K.L.L.H. , 2010 WL 87043, at *8 (quoting In r e M.S. , 115 S.W.3 d at 5 50 )
.12

V. Conclusion We affirm th e tri al co urt’s judgm ent.

Charles van Cleef Justice Date Submitted : June 1, 2022 Date Decided: June 2 , 2022