### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00196- CV NO. 03-11-00303- CV

J. B., App ellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 33RD J UDICIAL DI STRICT NOS . 37, 968 & 37,9 68A, H ONO RAB LE ROB H OF MANN, ASS OCI ATE JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J .B. appea ls from judgme nts in two suits aff ecting her pare ntal rela tionships with two children. The suits wer e orig inally one cause but we re s ev er ed at t he trial court. I n

cause number 03-11-00196- CV, the trial court terminated her p ar en t al rig hts to B.W.L .B. based in part on the affidavit J .B. signed relinquishing her parental rights t o B.W.L .B. I n cause number
03-11-00303- CV, J .B. was appoi n ted the possessory conser vator of A.L

. She contends that her trial counsel rende red ineffe ctive assistance with reg ard to both judgme nts. I n cause number 03-11- 00196-CV, s he a l s o co ntends that the Tex as Department of Fa mily and P rotec tive Service s failed
to show that termination of her pare ntal rig hts was in B.W.L .B.’ s best interest. I n cause number 03- 11-00303-CV, she contends that the trial court err ed by finding that appellant having possession of

or acc ess to A.L

. would endang er the child’s phy sical or emotional welfa re and by finding that A.L .’sbest i n t er est was serve d by not appointing appellant as her joint manag ing conser vator. We will aff irm the judg ments.

BACK GR OUND

The appellate rec ord in these case s is rela tively sparse , likely due in larg e part to the fac t that these case s wer e decide d on repr esenta tions that the parties ag ree d to the dispositi on of
pare ntal rig hts and ac cess.

Acc ording to the orig inal petition, appellant g ave birth to two children—A .L

. in 1995 and B.W.L .B. in 2002. The children have differ ent fathe rs. An aff idavit details the Depa

rtment’s 1
h i s tory with the children, including repor ts of phy sical alterc ations betwee n appella n t an d
B.W.L .B. ’s fa t h er, strug g les betwee n appellant and A.L ., and phy sical assaults by B.W.L .B.’ s fathe r, app ellant, and A.L

. ag ainst B.W.L .B. I t discusses methamphetamine use by appellant and assertions that she offere d A.L

. presc ription pain pi lls as an i ncentive to clea n her room. The aff idavit discussed both fathers ’ use of marijuana and their criminal history

. B.W.L .B.’ s fathe r had four char g es involvin g assault causing bodily injury (the last in 2010), and A.L .’s fathe r had three DWI offe nses (the la st in 2004).

The final hear ing—w hich for clar ity we will call “the trial”—wa s fairly perf unctory beca use t he cases w er e p re s ented as resolved by ag ree ment. Appellant and her attorney appea red
at the trial. Appellant’s pare nts’ attorney announce d i n o p en court the terms of a “Rule 11

The trial court took judicial notice of its file, which included this aff idavit, at the trial. The 1 aff idavit w as made by

a per son identified in a sepa rate aff idavit as an a

uthorized repre sentative of the Texas Depa

rtment of Protec tive and Reg ulatory Service s. 2ag ree ment,” including the asser tion that appellant’ s pare nts would adopt their g randson, B.W.L .B., that A.L ’s fathe r would be A.L .’s primary manag ing conser vator and appellant her possessory

conser vator, and that appellant could visit the children as agr eed by the parties and rec ommended by their counse lor. A handw ritten document e ntitled “Ag ree ment” wa s filed in the cler k’s rec ord.
I t is signe d by B.W.L .B.’ s materna l g randpa rents, who state that they will allow appellant
contac t with B.W.L .B. “as rec ommended by the child’s counsel and in the child’s best in t ere st. [Grandpar ents] will totally cooper ate[] and encour ag e visitation with [appellant and B.W.L .B.]”
A.L .’s fathe r signe d and ag ree d to be appointed her perma nent manag ing conser

vator, with appellant the possessory conser

vator “with visitation and contac t a s rec ommended by the child’s counselor” and A.L .’s fa ther. This docume nt was not signe d by appellant. The court also admitted and filed a d o cu ment that appellant signe d under oath

co ncer ning B.W.L .B. entitled Affida vit of Voluntary Relinquishment of Parenta l Rights t o t h e Texas Depa

rtment of Protective and Reg ulatory Service s. Pag e one identifies appellant and her son, B.W.L .B. Pag e two is headlined “Ac knowledg ment of Rights; Termination of Rights” and includes the following statements:

2.2 “Te rmination of the pare nt-child rela tionship is in the best interest of the child.
2.3 “I understand that by naming the Depa rtment of Protective and Reg ulatory S er v i ces as manag ing conser vator in this Affida vit of Relinquishment, I g ive up all my pare ntal rig hts and g rant them to the Depa rtment and/or to the adoptive pare nts with whom my child may be plac ed.[”]
Pag e thre e continues w ith the following te x t:
33. Designation of Depart m ent as Managing Conservator; Consent to F oster Care and Ad optive P lacem ent 3.1 “I desig nate the Texas Depa rtment of Protective and Reg ulatory Service s, whose addre ss is

. . . as manag ing conser vator of the child.
3.2 “I fre ely , voluntarily , and perma nently gi v e and relinquish to the Depa rtment all my pare n t al rig hts and duties. I consent to the place ment of the child for ad o ption or in substitut e car e by the Depa rtment or by

a license d child-plac ing a g ency . 4. Aff

idavit of Relinqu ishme nt Irre vocable.
“Thi s Aff

idavit of Relinqu ishme nt of P arental Rights is a n d s h all be fi nal, perm anent, and irre vocable. I fu lly und erst and that, if I change m y m ind at any tim e, I can never force the agency to destroy, revoke or ret urn this af

fi davit.
5. Waiver of Citation, Notice , Hearing and Notice of En try of Dec ree 5.1 “I fully understand that a lawsuit has been or may be filed in the court and cause number listed i n t h e above caption, or in any court of competent jurisdiction, to terminate fore ver the pare nt-child rela tionship betwee n me and the above- named ch i l d

. I fully understand t h at t he termination suit may or may not be combined with a suit to adopt my child. I understand that either way , once the court terminates my pare ntal rig hts, I will have no further s ay conce rning the child, including whethe r o r n ot any child is adopted then or a t some later time.[”]
On pag e four

of the a ffidavit, the f

ollowing se ction was immediately above a ppellant’s sig nature :

6. Acknow ledgm ent of Re ce i p t and that Aff idavit is Irre vocable “I fu lly und erst and that this aff

idavit, once signed, is irre vocable, and I wi ll not be fu rther inf

orm ed of any hearings or p roce edings aff ect ing the ch i l d nam ed in thi s aff

idavit, in cludin g any term ination suit.
“I have rec eive d a copy of this Aff idavit of Relinqu ishme nt at the tim e of thi s signi ng.”
Appellant does not c halleng e the a uthenticity

of her signa ture on the a ffidavit.
4Testimony at the trial was limit ed and larg ely conce rned termination of the pare ntal

rig hts of B.W.L .B.’ s fathe r and the mutual rele ase of claims for child support betwee n appellant and
A.L .’s fathe r—neither of which is at issue on appea l. Appellant testified to her ag ree ment reg arding child support for A.L

. and respo n s ib ility for A.L .’s medical expenses. Appellant’s attorney informed the cour t and the persons with custody of the c hildren that appe llant had taken a ng er ma nag ement and pare nting classes, had clea n drug tests, and was, acc ording to appellant’ s thera pist, emotionally

rea dy for supervised phone calls with her children. At the cl o s e o f the trial, the court terminated
B.W.L .B.’ s pare nts’ pare ntal rig hts, approve d B.W.L .B.’ s pla c e me n t w it h h is ma te r n a l g randpa

rents, and approve d the medi at ed s ettlement naming A.L .’s fathe r her sole manag ing conser vator with appellant as a possessory conser vator with acc ess conditioned on approva l by A.L .’s fathe r an d therap i s t

. T h e court then sever ed the cause of action conce rning A.L

. from the cause of action

conce rning B.W.L .B.

The court set a “263 hear ing” and a hear i n g on place ment revie w of the children. 2
Acc ording to the trial court, it beca me appar ent at that first post-trial hear ing that appellant intended
t o ap p eal—likely due to her pro se fili ng of a notice of appea l, statement of points on appea l, an d

a motion for new trial. The trial court allowed appellant’ s trial counsel to withdraw, appointed new trial counsel, a

nd set a late r post-trial hea ring

.

Under the law applicable at the time, the trial court was require d to hold a post-trial hear ing 2 on whether “(1) a new trial should be g rante d; (2) a party ’s claim of indige nce, if any , should be s u s t ai ned; and (3) the appea l is frivolous as provided by Section 13.003(b), Civil Practice an d Remedies Code.” For

mer Tex. Fam. Code Ann. § 263.405(d) (Ac t of May 22, 2001, 77th L eg ., R.S., ch. 1090, § 9, 2001 Tex. Gen. L aws 2355, 2398, amende d by May 21, 2007, 80th L eg ., R.S., ch. 526, § 2, 2007 Tex. Gen. L aws 930, 930, repeale d by Act of May 5, 2011, 8 2d L eg ., R.S., ch. 75, § 4, 2011 Tex. Gen. L aws _____. 5I n her pro se filings, appellant expressed her dissatisfaction with the judgme nts. She

complained that her counsel had not communicated eff ectively with her. I n her statement of points

on appea l, she stated that she “wa s n ot in full understanding of what I had signe d and have no intentions on g iving up my pare ntal rig hts as [B.W.L .B.’ s] mother.” She stated further , “[A]s I will willingly share custody with [A.L .]’s fathe r . . . I want to move forwa rd and rebuild my rela

tionship betwee n me and my two children.” I n her motion for new trial, she added that she has “complete d classes and there is no rea son that would benef it me or my children by terminating pare ntal rig hts.”
S h e asks for telephone visits with both children and states, “I will do ever y thing in my p o we r t o reunite me and my

kids in the healthiest way possible.”
At the 263 hear ing, there was testimony reg arding how the ag ree ments resolving the

case s wer e rea ched and prese nted. Appellant failed to appea r but was repr esente d by counsel. The Depa rtment’s case worke r testified that she saw appellant a

nd her attorney discuss the ag ree ments,

an d s aw appellant in open court when the ag ree ments wer e announced. The casewor ker said that the announc ement in c ourt made clea r the differ ence betwee n the termination of appe llant’s rig hts
to B.W.L .B. and her appointment as possessory conser vator of A.L

. She testified that appellant was
not coer ced into signing the Affida vit of Relinquishment and that she signe d it fre ely and voluntarily

. The CASA volunteer who had witnessed the trial ag ree d that appellant confe rre d with her attorney and understood and ag ree d with the final order s. She also testified that both children have told her
repe atedly that they want no contac t with appellant. Appellant’s m o ther testified that appellant talked with her attorney and understood what she signe d. Appellant’s mother testified that appellant said, “This is the har dest thing she ’s eve r done, g iving up he r son.”

6DISCUSSIO N Appellant conte nds in both c ases that the Depa rtment did not establish its case that the dispositi ons of the children wer e in their best interests. She contends in both case s that she did
not rec eive e ffe ctive assistanc e of c ounsel.

Best intere st of B.W.L .B.

Be fore terminating pare ntal rig hts, the trial court must find that termination is in the child’s best interest. Tex. Fa m. Code Ann. § 161.001(2) (West Supp. 2011). A child’s best interest

can be aff ecte d by a number of fac tors including the desires of the child; the emotional and phy sical needs of the child now and in the future; the emotional and phy sical dang er to the child now and in the future; the pa

renta l abilities of the individuals see king custody ; and the ac ts or omissions of the pare nt which may indicate that the exis ting pare nt-child re l ationship is not a proper one. See Holley v. Adams , 544 S.W .2d 367, 372 (Tex. 1976). The best interest s tandar d does not permit termination mere ly beca

use a child might be better off living elsewhe re. In re D.M. , 58 S.W .3d 801, 814 (Tex. App.—For

t Worth 2001, no pet.). The strong presumption that a child’s be st interest is

serve d by keeping the child with his or her biologica l pare nt s d i s ap pear s when confr onted with e vidence to the contra ry . In re A.I

.G. , 135 S.W .3d 687, 692 (Tex. App.—San Antonio 2003, no pet.). The evidenc e in fa vor of ter mination must be cle ar a

nd convincing

. Id.
I n revie wing the fac tual sufficie ncy of the evidenc e to support a jury finding , we must consider and weig h all the evidenc e and should set aside the judgme nt only if it is so contra ry to the

overw helming weig ht of the evidenc e as to be clea rly wrong and unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex

. 1 9 8 6 ). Over lay ing that standard of revie w on the clea r-a nd-convinc ing burden of

7proof in termination case s, our appellate standard of revie w in such case s is as follows: “I f, in light

o f t h e enti re rec ord, the disputed evidenc e that a rea sonable fac tfinder could not have cre dited i n favor of the finding is so signific ant that a fac t-finder could not rea son ab l y h ave formed a firm belief or conviction, then the e vidence is factua lly insufficient.” In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002). We must g ive due defe renc e to the fac t-finder ’s finding s and not supplant the judgme nt with our own. In re H.R.M. , 209 S.W .3d 105, 108 (Tex. 2006). When leg al sufficie ncy of evidenc e supporting termination of pare ntal rig hts is chal l en ged , we look at all the evidenc e in the light
most favor able to the finding to deter mine whether a rea sonable trier of fac t could have formed a firm belief or conviction that the finding was true. J.F.C. , 96 S.W .3d at 266. I n this bench trial, we

assume that the trial court resolved disputed fac ts in favor of its decision if a rea sonable fac t-finder could do so, and we must disreg ard all evidenc e that a rea sonable fac t-finder could have disbelieved or found to have been inc redible. Id. at 266.

The evidenc e admitted at the trial favor ed the finding that t er m i nation of appellant’ s pare ntal rig hts was in B.W.L .B.’ s best interest. The trial court took judicial notice of the cler k’s record, including the initial aff idavit descr ibing appellant’s phy sical abuse of t he children, her tolerance of A.L .’s phy sical ab use of B.W.L .B., and appellant’ s drug use. The trial court also had befor e it appellant’ s Affida vit of Voluntary Relinquish m en t of Parenta l Rights to the
Texas Depa

rtment of Protective and Reg ulatory Service s. As set out above, appellant’ s signe d and

sworn aff idavit plainly states, “Te rmination of the pare nt-child rela tionship is in the best interest of the child.” I t also contains seve ral a ssertions that she under stood the eff ects of the aff

idavit:

8• I understand that by naming the Depa rtment of Protective and Reg ulatory Service s as manag ing conser vator in this Affida

vit of Relinquishment, I g ive up all my pare ntal rig hts and g rant them to the De p ar t m en t and/or to the adoptive par ents with whom my child may

be plac ed.

• I fre ely , voluntarily , and perma nently g ive and relinquish to the Depa rtment all my pare ntal rig hts a

nd duties. I consent to the place ment of the child for adopti on or in substitut e car e by the Depa rtment or by a license d ch i l d

placing ag ency .

• Thi s Aff

idavit of Relinqu ishme nt of P arental Rights is and shall be fi nal, perm anent, and irre vocable. I fu lly und erst and that, if I change m y mi n d a t any tim e, I can never force the agency to destroy, revoke o r ret urn this af

fi davit.

• I fully understand that a l aw s u i t h as been or may be filed in the court and cause number list ed in the above caption, or in any court of competent juris d i ct i o n, to terminate fore ver the pare nt-child rela tionship betwee n me and the above- named child. I fully understand that the termination suit may or may not be combined with a suit to adopt my child. I understand that either way , once the court terminates my pare ntal rig hts, I will have no further say conce rning the child, including whether or not any child is adopted then or at some late r time.

• I fu lly un derstand that this af fi davit, once signed, is irre vocable . . . .
(Unde rlining added.) This l an gu age wa s not tucked away in a massive document or in fine print, but was a substantial portion of the aff idavit’s four pag es of standard- s i z ed text

. (A fifth pag e was devoted solely

to verification.) There was no evidenc e or indication at t he trial from any one, including appellant, that she did not understand what she signe d. The trial court announce d the termination of appellant’ s pare n t al rig hts to B.W.L .B. in open court without objection from appellant. The e v id e n c e in th e rec ord—including appellant’ s sworn statement that termination of her
pare ntal rig ht s wa s i n her child’s best interest—provide d leg ally and factually sufficie nt evidenc e

9t o s u

p p o r t t h e t r i a l c o u r t ’ s c o n c l u s i o n t

h a t t e r m i n a t i o n o f h e r p a

r e n t a l ri g h t s w a s i n h er c h i l d ’ s b e s t i n

t er e s t

. Appellant did not cre ate a post-termination rec ord that under mined the trial court’s finding of the child’s best interest. S h e d i d not provide a sworn statement contra dicting the substance or the voluntariness of her sworn statement s in her Affida vit of Relinquishment. Although appellant asser

ted in her unsworn statement of points on appeal an d motion for new trial that she did not fully

understand w hat she ha d signe d and had no intention of giving up her pa renta l rig hts
to B.W.L .B., she did not swea r t o that asser

tion under oath in writing or i n court. Most critica lly , appellant failed to appea

r, testify , or prese nt evidenc e at the 263 hear ing. Her attorney attended and

cross-e x amined witnesses, but ever y witness who testified said without controve rsion they believed that appellant understood the eff ect of the Affida vit of Relinquishment. Appellant’s mother testified that appellant said befor e the t ri al, “This i s the hardest thing she’s ever done, giving up her son.” The only evidenc e in the rec ord supports a conclusion that appell an t u n d er s t ood the eff ect of the aff idavit when she signe d it. Appellant failed to prese nt any proof afte r trial rebutting the evidenc e that termination would be in B.W.L .B.’ s best interest. She asser ted in her pro se motion for new trial that “ther e is no rea son that would benef it me or my children by terminating pare ntal rig hts,” and that
“I will do ever

y thing in my power to reunite me and my kids in the healthiest way possible.” These

unsworn asser

tions fail to undermine the evidenc e—including her own sworn, signe d statement in her a ffidavit—that ter

mination of her pa

renta l rig hts was in B.W.L .B.’ s best interest. This rec ord conta ins factua lly and leg ally sufficie nt e vidence to suppor t the court’s conclusion that termination of a ppellant’s par ental rig hts was in B.W.L .B.’ s best interest.

10Best intere st of A.L. an d dan ger t o A.L.’s physi cal and em otional w elfare Ap pellant contends that there was leg ally and fac tually insufficient evidenc e to support the trial court’s depar ture fr o m t h e rebuttable presumption that both pare nts would be appointed joint manag ing conser vators. See Tex. Fam. Code Ann. § 153.131(b) (West 2008). She also arg ues that the evidenc e did not establish that pare ntal p o s s ession or acc ess would endang er the phy sical or emotional welfa re of the child. She contends that she did n o t s i gn the Rule 11 3 Ag ree ment and that ther e is no evidenc e that she unde rstood the Rule 11 Ag ree ment. 4

The rec ord contains s u ff i ci ent evidenc e to support the trial court’s decisions on appellant’ s conser

vatorship and visitation of A.L

. Thoug h appellant did not sign the Ag ree ment and the custody decr ee is consistent with the Ag ree ment, there is no showing that the Ag ree ment aff ecte d

Although we find no such ex plicit finding made by the co u rt i n t he record, a pos sessory 3 co n serva tor’s visitation rig hts may be curta iled if unrestric ted visitation would endang er th e phy sical or emotional welfa re o f t he child. See George v. Jeppe son , 238 S.W .3d 463, 470 (Tex. App.—Houston [1st Dist.] 2007, n o p et .); see also Tex. Fam. Code Ann. § 153.193 (West 2008). We assume appe llant is challeng ing the limit ation on her visitation of A.L

.

The Rule 11 Ag ree ment was included only in a supplemental cl er k ’s re co rd filed in 4 appellate cause number 03-11-00196- CV. The Rule 11 Ag ree ment, howeve r, was filed in trial court cause number 3 7 , 9 6 8 at the trial befor e the sever ance order was signe d. Documents filed in a cause befor e a sever ance are also part of the rec ord of the sever ed cause . See Padilla v. LaFrance , 907 S.W .2d 454, 459 (Tex. 1995). “Thoug h the sever ed cause number orig inates with the sever ance order , the sever ed cause stems from the inception of the orig inal cause . Thoug h economy dictates that county clerk s need not put copies of ever y document from the original cause int o the sever ed cause while the case s are still in county court, cler ks must, when properl y re q u es ted, place into the appellate rec ord for the sever ed cause rele vant documents that wer e filed in the ori gi nal cause befor e the sever ance order .” New Hampshire Ins. Co. v. Tobias , 80 S.W .3d 146, 148-49 (Te x . App.—Austin 2002, order transfe rring rec ord). To the extent nece ssary in appellate cause number 03-11-00 3 0 3 -CV, we take judicial notice of the appellate rec ord filed in appellate cause number 03-11-00196- CV. See In re Riley , 339 S.W .3d 216, 221 n.5 (Tex. App.—Waco 2011, orig

. proce eding ); Trevino v. P em b er t o n , 918 S.W .2d 102, 103 n.2 (Tex. App.—Amar illo 1996, orig . proce eding ). 11the cour

t’s choice not to appoint appellant a joint manag ing c onserva tor along with A.L .’s fa ther.
As discussed above, the trial cou rt t o o k j u d i cial notice of its file, which included a Depa rtment

case worke r’s aff

idavit descr ibing appellant’ s drug use, her tactic of offe ring A.L

. presc ription painkillers as an incentive to clea n her room, and her phy sical alterc ations with A.L ., including putting A.L

. in a choke hold and shovin g h er into a bathtub. These sworn alleg ations wer e not
controve rted by evidenc e, arg ument, or asser tion in an unswo rn d o cu m ent. The uncontrove rted 5
evidenc e in the rec ord is leg ally and fac tually sufficie nt to rebut the presumption that appointment of bot h pare nts as j oint manag ing conservators of A.L

. is in A.L .’s best interest. That evidence is als o leg ally and fac tually sufficie nt to support an implied finding that unrestric ted visitation with
A.L

. would either not be in the child’s best interest o r wo u l d endang er the child phy sically or emotionally

. Finally , leg ally and fac tuall y s u ff i ci en t evidenc e supports the court’s choice not to appoint appellant a s a joint manag ing c onserva tor of A.L

.

Assistance of counsel

Appellant contends that her appointed trial attorney provided ineffe ctive assistance of counsel. Proving ineffe ctive assistance of counsel require s a showing that (1) counsel made err ors

so serious that counsel was not f unctioning as “counse l” g uara nteed by the Six th Amendment, and (2) the defic ient perf

ormanc e prejudice d the defe nse, which “re quires showing that counsel’s err ors

Appellant was prese nt during the trial, was questioned reg arding a purported ag ree ment 5 about waiver of child-support claims, and did not object or oth er wi s e co mment on the rec ord when her pare nts’ attorney announce d the terms of her cu s t o d y o f A.L

. under the parties’ alleg ed ag ree ment, nor did she objec t or comment on the re cord w hen the trial court announced a custody arr ang ement consi stent with that ag ree ment. Even in her unsworn pro se motion for new trial, appellant sa id she soug ht only to be per mitted telephone visits with A.L

. 12wer e so serious as to deprive the defe ndant of a fair trial, a trial whose result is reliable .” In re M.S. ,

115 S.W .3d 534, 545 (Tex. 2003) (quoting Strickland v. W ashington , 466 U.S. 668, 687 (1984)).
I n adopting the Strickland test for pare ntal termination case s, the supreme co u rt explained that,
t ak i ng into acc ount all of the circ umstances surrounding the case , we “must primarily fo cu s o n whether counsel perf

ormed in a rea sonably eff ective manner . . . . I n this proce ss, we must g ive
g rea t defe renc e to counsel’s perf ormanc e, indulging a strong p re s u mption that counsel’s conduct falls within the wide rang e of rea sonable profe s s i o n al assistance , including the possibili ty that counsel’s actions are strateg ic.” Id. (interna l quotes omitted). Challeng ed conduct constitutes ineffe ctive assistance only when it is “so outrag eous that no competent attorney would have eng ag ed in it.” In re H.R.M. , 209 S.W .3d at 111 (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)). Appellant raises sever al complaints reg arding her c ounsel’s re prese ntation at trial. Sh e co mplains that counsel did not communicate effe ctively with her, most notably reg arding the meaning of the aff

idavit she signe d and the Ag ree ment signe d by her pare nts and A.L .’s fathe r. She complains that tr i al co u n s el did not inspect or object to the admission of the Affida vit of Relinquishment, that she herse lf did not insp ec t o r object to the admission of the Affida vit of Relinquishment, and t h at n o o ne testified reg arding the “cr edibility or reliability of [appellant]’s voluntarily

signing the af

fidavit.” She make s simil ar c omplaints reg arding the Ag ree ment. Appellant cites no evidenc e in support of these alleg ations. The trial rec ord is silent
reg arding whether appellant or her trial counsel had seen the Affida vit o f R el inquishment or the Ag ree ment. Testimony at the 263 hear ing indicated that appellant and other parties had, just befor e

13the trial, neg otiated the dispositi on of the case including pare ntal rig hts, custody arr ang ements, and

child-support claims. Both the Affida vit of Relinquishment and the Ag ree ment wer e dated and filestamped Februa

ry 15, 2011—the s ame date as the t rial. There is no showing that appellant’ s trial counsel did no t revie w the documents or that the documents filed differ ed in any way from the documents prepare d just befor e trial. Appellant’s unsworn asser tions that she di d no t k n o w wh at these documents said or meant are not evidenc e. Appellant had the opportunity to prese nt testimony or evide nce r eg arding these issues at the 263 he aring , and she f ailed to appe ar or

prese nt evidence during or outside of that he aring

.

Our independe nt examination of the rec ord does not reve al any err ors by counsel

so serious that counsel was not functioning as “counse l” g u ar an t ee d b y the Six th Amendment

or that prejudice d appellant. The uncontrove rted evidenc e in the rec ord shows that ap pellant abused and neg lected her children while using illegal d ru gs . I t shows that she allowed A.L ., a
y oung teen age r, t o drink alcohol and allowed A.L .’s friends to g et drunk. Appellant offere d A.L

. presc ription painkillers as an incentive to clea n her room. She allowed A.L

. to phy sically abuse
B.W.L .B. Appellant helped the children esca pe the son’s abusive fathe r, but the uncontrove rted testimony is that both children repea tedly and without wave ring said they wanted no contac t wi th appellant. Neve rtheless, the result of the trial proce eding is that appellant reta ined her pare ntal rig hts
to A.L

. and that both children are place d wi t h p er s o n s who ag ree d to permit contac t betwee n the children and appellant as rec ommended by the children’ s counselors. On the rec ord prese nted, we find no ineff

ective a ssistance of c ounsel war ranting reve rsal.

14CONCLUSION Finding that leg ally and factually sufficie nt evidenc e supports th e fi ndings that the trial court’s judgme nts are in the ch i l d re n ’s best interests and finding no evidenc e to support the

asser tions that appellant rec eived ineffe ctive assistance of counsel, we aff irm the Final Orde r in Suit Affe cting the Pare nt-Child R elationship in eac h of these a ppellate c auses.

J eff Rose, J ustice
Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: F ebrua

ry 24, 2012

15