Affirmed and Opinion filed November 1, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00461-CV

IN THE INTEREST OF Z.M.R. AND Z.D.B., CHILDREN 

On Appeal from the 314th District Court 

Harris County, Texas 

Trial Court Cause No. 2017-02402J 

O P I N I O N 

The trial court terminated the parent-child relationship between appellant 

P.S.R. (Mother) and her children, Zoe and Zachary.1 Termination was based on 

Mother’s irrevocable affidavit of relinquishment of her parental rights and the 

court’s finding that termination is in the children’s best interest. See Tex. Fam. Code 

Ann. § 161.001(b)(1)(K), (b)(2) (West 2014 & Supp. 2017). The trial court 

appointed the Texas Department of Family and Protective Services (the Department) 

to be the children’s managing conservator. 

 

1

 We use pseudonyms or initials to refer to the children, parents, and other family members 

involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2). 
2

On appeal, Mother contends termination was improper because she executed 

the affidavit involuntarily and had ineffective assistance of counsel. She does not 

challenge the trial court’s finding that termination of her parental rights is in the 

children’s best interest, nor does she challenge the Department’s appointment as 

managing conservator. We affirm the trial court’s judgment. 

BACKGROUND

A. Removal and pretrial proceedings 

In April 2017, Mother brought then 11-month-old Zachary to Texas 

Children’s Hospital, reporting he had swelling on his right side and was twitching 

when she picked him up. Examination of Zachary revealed multiple unexplained 

injuries, including: two skull fractures; ten bilateral rib fractures in different stages 

of healing; two toe fractures; a burn on his left arm consistent with a cigarette burn; 

and elevated liver enzymes, indicating an injury to the liver. Zoe, then three years 

old, showed no signs of injury or neglect. Zachary remained hospitalized, and Zoe 

was placed in a foster home. 

The Department filed this suit for protection a few days later. The trial court 

appointed Michelle Bush as counsel for Mother and held a full adversary hearing, 

after which it ordered the children to be removed from Mother’s care and named the 

Department as their temporary managing conservator. The court also signed an order 

requiring Mother to comply with any family service plan by the Department. 

B. Trial 

Trial was held nearly a year after removal. Mother did not attend trial 

personally. Bush stated on the record that Mother had been in the courthouse earlier 

that day, at which time she had executed an irrevocable affidavit of relinquishment 

of her parental rights, then left. Bush said she had explained the affidavit to Mother, 
3

Mother had no questions, Mother understood the affidavit and its consequences, 

Mother wanted to sign the affidavit, and nothing was promised to Mother in 

exchange for her signature. The trial court admitted the affidavit into evidence 

without objection. 

Department caseworker Brittany Johnson testified about Zoe’s and Zachary’s 

progress since removal. They remained in the same foster-to-adopt home from 

removal until trial. She said they were doing “really, really well” in that home. Zoe, 

she said, is independent, loves helping take care of Zachary, and takes pride in 

making decisions for herself. Zachary struggled to walk when he entered foster care 

but mastered it with help from his foster mother. Johnson and the children’s guardian 

ad litem, Linda Berlinger, agreed “one hundred percent” that termination of 

Mother’s parental rights was in the children’s best interest so they could be adopted 

by their foster parents. 

The trial court found (1) Mother executed an unrevoked or irrevocable 

affidavit of relinquishment of her parental rights, and (2) termination of Mother’s 

parental rights was in Zoe’s and Zachary’s best interest. The trial court appointed 

the Department to be the children’s managing conservator. 

C. Motion for new trial 

Mother, through new counsel, filed a motion for new trial. The motion alleged 

“newly discovered evidence” had come to Mother’s knowledge since the trial: 

namely, that Mother reportedly suffers from bipolar disorder, depression, and other 

mental health conditions and had not taken her prescribed medication for six years. 

As a result, Mother contended, her affidavit was involuntary. 

The trial court held an oral hearing on the motion. Mother; her father, Paul2; 

 

2

 Paul is Mother’s biological father. He did not know whether his parental rights had been 

terminated. 
4

her grandmother, Mary; Johnson; and Berlinger testified at the hearing. Bush 

appeared at the hearing and examined every witness except Paul, but she was not 

called as a witness and did not testify. Mother offered certain records from the 

Mental Health Mental Retardation Authority of Harris County (MHMRA), which 

were admitted into evidence without objection. 

1. Mother’s mental health and abilities 

Six years before relinquishment. The MHMRA records concern a 2012 

evaluation of then-16-year-old Mother’s mental health and mental abilities. With an 

IQ of 64, Mother was diagnosed with a mild intellectual disability. She read at a 

fourth-grade level. She “spoke in word phrases and simple sentences with minor 

articulation difficulties evident.” Her receptive language skills were adequate, 

though “[c]larification of simple directives was sometimes necessary.” 

The evaluators noted Mother was verbal, ambulatory, and “independent in all 

areas of her daily living.” Examples of such daily living included hygiene and selfgrooming, household chores, staying home alone, and knowing how to respond in 

an emergency. Mother reportedly could handle small amounts of money and make 

simple purchases, but she could not manage money independently. She could not 

tell time. 

Mother’s medical history was described as unremarkable, but her mental 

health history was “significant for an Adjustment Disorder and physical abuse and 

neglect victimization.” A victim of abuse and neglect as a child, Mother had been in 

Department custody off and on since she was 10 years old. She lived with a foster 

mother at the time of the evaluation. Her foster mother was said to be in the process 

of adopting Mother and Mother’s younger sister. Mother was being treated with 

medication for adjustment disorder. 

The evaluators deemed Mother eligible for intellectual disability services. 
5

Available services included assistance for Mother and her foster mother in, for 

example, navigating the school system, accessing community resources, meeting 

people and making friends, learning money management, accessing medical or 

mental health care, learning basic living skills, obtaining or changing employment, 

modifying Mother’s living environment, and exercising legal rights. Though 

eligible, Mother and her foster mother declined all services. The evaluators noted 

Mother indicated she felt happy in her foster home and at school and enjoyed her 

existing friendships and relationships. 

At the time of relinquishment. Mother testified she left high school after 10th 

grade. She does not have a driver’s license, she said, but she knows how to drive and 

use a GPS to navigate. She testified she receives disability income from the Social 

Security Administration and said she gave Johnson a copy of her social security 

award letter. Before she signed the affidavit of relinquishment, she had completed 

many of the services required by her family service plan, including submitting to a 

psychosocial assessment shortly after her children were removed. On crossexamination, the Department questioned Mother as to why the report of the 

psychosocial assessment indicated Mother reported she had no history of mental 

illness. Mother said she did not say that to the assessor. 

Paul testified he told Bush that Mother had “a mental disorder” and did not 

understand the proceedings against her, so he should help Bush in explaining matters 

to Mother. He did not remember when he made that statement to Bush, only that it 

was during one of Mother’s court appearances. Bush reportedly told him he could 

not be present when she and Mother were talking because Mother, who was facing 

a criminal charge regarding Zachary’s injuries, might make a statement 

incriminating herself, and Paul could be compelled to testify as to that statement. 

Paul said he also told a previous caseworker about Mother’s diminished abilities, but 
6

admitted he did not share his concerns with Johnson, Berlinger, or the children’s 

attorney ad litem. Paul did not know the MHMRA records existed or that Mother 

had undergone a mental health and mental abilities evaluation at age 16. 

Johnson met with Mother many times throughout the pendency of this case. 

She said Mother did not tell her she had an intellectual disability, and Johnson did 

not know. Mother reportedly told Johnson she had attention hyperactivity deficit 

disorder (ADHD). Sometimes Mother would tell her she did not understand what 

Johnson was saying. On those occasions, Johnson continued to talk with Mother 

until she said she understood. Johnson estimated Mother was evaluated or treated by 

three mental health professionals. None of them expressed any concern to Johnson 

regarding Mother’s ability to understand and participate in the process. 

Berlinger also talked with Mother several times throughout the case. She 

believed Mother understood what was happening, and Mother never gave her reason 

to believe she did not understand. 

2. Circumstances surrounding execution of affidavit 

All the witnesses except Paul offered an account of the circumstances 

surrounding Mother’s execution of the affidavit of relinquishment. Mother testified 

Bush told her she would be a “dumb ass” if she did not sign the affidavit. She did 

not understand what the affidavit meant, Mother said, but she knew it was important 

because a notary and two witnesses were with her when she signed it. Still, she did 

not read it or ask for it to be read to her. Mary was not with Mother at the time of 

signing, but she testified Mother called her, crying. According to Mary, Mother 

indicated she felt pressured to sign the affidavit. Mary said she advised Mother not 

to sign it. Mother said she signed the affidavit because she was scared and: 

I wanted them to leave me alone. I wanted to be done with it. I just 

signed it. . . . I wasn’t thinking straight. I just wanted to leave. I wanted 
7

to get away. 

She said she never would have signed the affidavit had she understood its 

consequences. 

On cross-examination, Mother admitted she and Bush spoke on the phone 

multiple times throughout the case. She had Bush’s phone number and knew she 

could call or text Bush. Mother also acknowledged Bush attended every court 

hearing with Mother and met with Mother before each hearing to discuss the case, 

including her positive drug test results and the fact of her pending criminal charges. 

Bush asked if Mother remembered discussing the possibility of relinquishment at a 

hearing about seven months before trial, but Mother denied any memory. 

Johnson and Berlinger told a different story. Johnson was not with Mother at 

the time she signed the affidavit of relinquishment but had been with her earlier in 

the day. She said Mother was not upset when she saw her. Further, Mother had 

brought a fictive kin with her for the Department to evaluate as a possible placement 

for the children. 

Berlinger testified in detail about Mother’s execution of the affidavit: 

Q: Can you describe to us what you saw, what you heard, how that 

went down? 

A. Yes, ma’am. You guys had the papers, they were draped over a 

trash can. And you were explaining very carefully section by 

section what she was signing. 

Q. And at that point, when you saw me explaining the documents to 

her, was Mom upset or crying? 

A. She was upset, yes. 

Q. Okay. Was she able to listen to what I was telling her? 

A. Yes. 
8

Q. Was she also standing there with one other family member? 

A. Yes. 

Q. The [children’s] grandmother, correct? 

A. Yes. 

. . .

Q. And was the grandmother calm in listening to what I had to say? 

A. I don’t recall. I was watching [Mother]. 

Q. Okay. Okay. At any time did you hear me use any profanity or 

threaten or bad words at all towards the mom? 

A. No. 

Q. Towards anybody? 

A. No. 

Q. Okay. Were you there when Mom signed the document? 

A. Yes. 

Q. Did you hear me ask her, are you signing this because this is what 

you think is best for your children? 

A. Yes. 

Q. And her response was? 

A. Yes. 

Q. And did you hear me ask her, is anybody forcing you to sign this 

or promising you anything to sign this? 

A. You asked that, yes. 

Q. And was her response – 

A. Yes. 
9

Q. – no, I’m not being forced and no, I’m not being promised 

anything? 

A. Yes. 

Q. Did you have any concerns, being the Child Advocate, best 

interest of the child as well as the interest of the mother, that 

anything to harm the mother in anyway [sic] was happening out 

there? 

A. I had no concerns. 

Q. And do you believe, based on what you saw and based on your 

conversations with Mom throughout the year of this case, that 

Mom had the intellectual capacity to understand what she was 

doing by signing that relinquishment? 

A. Yes. 

Q. And do you believe that she was upset because she was giving 

up her rights to her children, correct? 

A. Yes. Exactly. 

Q. But you also – did you believe that she understood, based on the 

circumstances that she was in, that that’s why she was doing it? 

That that’s why she was relinquishing? 

A. Yes. She understood that – the consequences of not 

relinquishing, that her chances at trial were not good. And that if 

her rights were terminated that she would have the consequences 

of the further children being taken away. 

The trial court then asked Berlinger if she thought relinquishment was the 

appropriate result in this case, and Berlinger said yes: 

The Court: From your perspective. Child Advocate representative. 

But I know that you also focus on trying to help the 

mothers along, particularly, you know, a young mother 

like her. . . . Would you think that what she did in signing 

that relinquishment under the circumstances was the 

appropriate thing for that mother? 
10 

Berlinger: Yes. 

The Court: I mean based on what she was looking at and the prospects 

that she had. You had mentioned that, you know, it didn’t 

look particularly good to you, as far as the facts or possible 

outcomes. So you feel like signing the relinquishment was 

something that maybe you would have even 

recommended? 

Berlinger: I would have, yes. 

The Court: Okay. 

Berlinger: I would have. Absolutely. 

The Court: If that relinquishment seemed improper, would you have 

spoken up and said, hey look – 

Berlinger: Yes, I would have. 

The Court: Okay. I just want to make sure. 

Berlinger: I absolutely would have. Yes. 

The trial court also questioned Mother. She confirmed she understood, at the 

time she signed the affidavit and as she sat in court that day, the difference in 

consequences between a termination based on relinquishment and a termination 

based on a finding of endangerment: 

The Court: . . . . You’re a very young person, right? How old are you? 

Mother: I’m 22. 

The Court: Twenty-two. Okay. And it was explained to you that 

relinquishing your rights, you give up your rights to child 

or children but if you have other children in the future, you 

get to start over. They don’t hold that against you. 

Mother: She told me that. 

The Court: Okay. . . . But then if you went to trial and had your rights 

terminated for not doing good things – 
11 

Mother: She told me that. 

The Court: – then every other time you have a child, they would be – 

that CPS could pick them up and terminate your rights. 

You understand that, right? 

Mother: Yes. 

The Court: Okay. So if you signed a relinquishment, at least one of 

the – one of the good things, even though it’s difficult for 

you, one of the good things would be that, I guess the 

relinquishment, in a sense means, well I was young. I 

made some mistakes but don’t penalize me in the future 

when I have future children. That’s one of the benefits of 

a relinquishment, right? 

Mother: Yes. 

The Court: And you understood that, right? 

Mother: Yes. Now can I speak? 

The Court: Okay. But I mean if you go to trial, and I don’t know 

exactly what your facts are in your case, but if you went to 

trial and the Judge or jury terminated your rights, that 

would cause problems for you if you had another child in 

the future, right? 

Mother: Yes. 

The Court: And you understand all that? 

Mother: Yes. 

The Court: All right. Just want to make sure you understood. That’s a 

very significant thing for you to understand. 

3. Ruling 

After hearing closing arguments, the trial court orally denied Mother’s motion 

for new trial. 
12 

ANALYSIS

I. Relinquishment 

Mother words her issue on appeal as simply “Ineffective Assistance of 

Counsel.” Though her brief is less than clear, she also appears to be raising a second 

issue, which is that her diminished mental capacity rendered her relinquishment 

involuntary. We will address that issue first. 

A. Legal standards 

Parental rights can be terminated if clear and convincing evidence shows 

(1) the parent committed an act described in section 161.001(b)(1) of the Family 

Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. 

§ 161.001(b)(1), (2) (West Supp. 2017). One such act is “execut[ion] before or after 

the suit is filed [of] an unrevoked or irrevocable affidavit of relinquishment of 

parental rights as provided by” Family Code chapter 161. Id. § 161.001(b)(1)(K). 

An affidavit of relinquishment of parental rights, in turn, is governed by 

section 161.003. The Supreme Court of Texas described section 161.003 as follows: 

Reflecting the grave significance of [relinquishment], Family Code 

section 161.103 includes 28 subparts. The statute requires, among other 

elements for a valid affidavit: (1) a waiting period after birth; (2) two 

witnesses; (3) verification by the parent that termination of the parentchild relationship is in the child’s best interest; (4) designation of the 

person or agency to serve as the child’s managing conservator; (5) a 

statement that the parent has been informed of parental rights and 

duties; and (6) a statement that the termination is irrevocable if that is 

(as here) the case. 

In re K.S.L., 538 S.W.3d 107, 109–10 (Tex. 2017). 

The proponent of the affidavit—here, the Department—has the burden to 

prove the elements necessary to support termination of the parent-child relationship. 

In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). Section 161.103(a) requires that the 
13 

affidavit be for voluntary relinquishment, and implicit in section 161.001(1)(K) is 

the requirement that the affidavit of parental rights be voluntarily executed. Id. An 

involuntarily executed affidavit is a complete defense to a termination suit based on 

section 161.001(1)(K). Id. 

An affidavit of relinquishment in proper form constitutes prima facie evidence 

of its validity. In re A.L.H., 468 S.W.3d 738, 741 (Tex. App.—Houston [14th Dist.] 

2015, no pet.). Once the proponent of the affidavit meets the burden, the party 

opposing the affidavit must show its execution resulted from fraud, duress, or 

coercion. In re R.P.R., No. 14-17-00760-CV, 2018 WL 1097298, at *3 (Tex. App.—

Houston [14th Dist.] Mar. 1, 2018, pet. denied) (mem. op.). Mother does not contend 

the affidavit failed to comply with section 161.003. 

Section 161.211 of the Family Code, entitled “Direct or Collateral Attack on 

Termination Order,” governs challenges to termination orders based on an 

unrevoked affidavit of relinquishment. Tex. Fam. Code Ann. § 161.211 (West 2014). 

Section 161.211(c) states: 

A direct or collateral attack on an order terminating parental rights 

based on an unrevoked affidavit of relinquishment of parental rights or 

affidavit of waiver of interest in a child is limited to issues relating to 

fraud, duress, or coercion in the execution of the affidavit. 

Id. § 161.211(c). 

B. Application 

In re K.M.L. also involved a mother with an intellectual disability who 

contended her affidavit of relinquishment was involuntary. The jury found the 

relinquishment was voluntary, and the court of appeals affirmed, but the Texas 

Supreme Court concluded the evidence of voluntariness was legally insufficient. 

K.M.L., 443 S.W.3d at 104–05.
14 

The mother, Melissa, was diagnosed with bipolar disorder and borderline 

intellectual functioning. Her IQ was below 70, and she read at a second-grade level. 

Id. at 113–14. Melissa had her daughter, whom we will call Kate, at age 18. Id. at 

105. Kate fell down the stairs accidentally when she was two years old. The 

Department removed her from Melissa’s care and petitioned for termination of 

Melissa’s parental rights. Id. 

About nine months into the termination suit, Melissa executed an affidavit of 

relinquishment of her parental rights to Kate. Id. at 106. Melissa mistakenly believed 

the affidavit would allow her mother, Angali, to obtain custody of and adopt Kate. 

Id. Soon after she executed the affidavit, she unsuccessfully sought to revoke it. Id.

Trial began seven months later. Id.

At trial, Melissa continued to challenge her affidavit as involuntarily 

executed. She cited two facts to support her claim that she did not understand the 

effect of the affidavit. First, Melissa and Angali, on the incorrect advice of a lawyer, 

had twice executed documents by which they attempted to transfer custody of Kate 

from Melissa to Angali. See id. at 105, 114. Though the documents were legally 

ineffective, Melissa’s intent was clear: she had an “earnest desire to enable [Angali] 

to help care for [Kate] while Melissa remained part of [Kate’s] life.” Id. at 114. 

Second, about six weeks after Melissa executed the affidavit of relinquishment, a 

court in an unrelated matter determined Melissa was incapable of managing her own 

affairs due to her intellectual disability and mental illness. See id. at 106, 113. That 

court appointed Angali to be Melissa’s guardian. Id. at 106. 

Several witnesses testified about Melissa’s lack of comprehension. Her 

psychiatrist testified there was “no way” Melissa understood the affidavit she signed. 

Id. at 113. Her counselor testified Melissa struggled at times to understand. With 

time and due to the rapport she had built with Melissa, the counselor could ensure 
15 

Melissa eventually grasped certain concepts. Id. Still, the counselor testified, Melissa 

never got “settled” or “rooted” with the idea that she would not see Kate again. 

Furthermore, on the day of the hearing regarding the affidavit of relinquishment, 

Melissa reportedly could not hear what was being said and did not understand what 

she did hear. Id. at 114. Melissa’s former lawyer testified even he was confused 

about the events that occurred the day Melissa signed the affidavit. Id.

The evidence in this case is considerably different from that in K.M.L. First, 

Melissa signed her affidavit seven months before trial, and sought to revoke it almost 

immediately thereafter. Id. at 106. The issue of voluntariness was fully litigated at 

trial. See id. at 113–15. In this case, by contrast, Mother signed her affidavit on the 

day of trial. The final judgment of termination was signed a month later, and another 

month elapsed before Mother filed a motion for new trial. Only then, two months 

after she signed the affidavit, did she allege her relinquishment was involuntary. 

Second, the record in K.M.L. contained several pieces of evidence about 

Melissa’s mental abilities around the time she signed the affidavit of relinquishment. 

Her psychiatrist and counselor both testified as to her comprehension challenges 

throughout the case. See id. at 113–14. Six weeks after she signed the affidavit, a 

court found Melissa incompetent to manage her own affairs and appointed a 

guardian for her, an appointment from which one may reasonably infer she might 

not have been competent to execute the affidavit. Id. at 113. But here, most of the 

evidence of Mother’s mental abilities came from the MHMRA records, which 

concern an evaluation conducted five years before this case began and six years 

before relinquishment. The only evidence of Mother’s current mental abilities was 

Mother’s own say-so and the testimony of Paul and Mary, her relatives. As fact 

finder, the trial judge was the sole arbiter when assessing the credibility and 

demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re H.R.M., 
16 

209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact 

finder’s resolution of a factual dispute by relying on disputed evidence or evidence 

the fact finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 

707, 712 (Tex. 2003). The trial judge was free to disbelieve the interested testimony 

of Paul and Mary. Further, the lack of certain evidence in this case is significant—

namely, that none of Mother’s former laywer, the caseworker, the children’s 

guardian ad litem, or any of three mental health professionals who had evaluated or 

treated Mother expressed concerns about her ability to understand. 

Finally, in K.M.L. there was “absolutely no evidence in the record, other than 

the language of the affidavit itself,” that Melissa understood the consequences of 

signing the affidavit of relinquishment. Id. at 115. In this case, though, several pieces 

of evidence show Mother understood the effect of the affidavit: 

 Her trial lawyer, Bush, stated on the record at trial that she had explained the 

affidavit to Mother, Mother understood the affidavit and wanted to sign it, and 

nothing was promised to Mother. 

 The caseworker, Johnson, testified Mother brought someone with her to court 

for the Department to evaluate as a placement for the children. The fact finder 

could reasonably infer Mother understood she would be giving up her rights 

to the children and wanted the Department to appoint someone she knew as 

the their managing conservator. 

 The children’s guardian ad litem, Berlinger, testified in detail about Mother’s 

execution of the affidavit, specifically noting Mother appeared to understand 

what she was doing. 

 Mother engaged in a long discussion with the trial judge in which she 

confirmed she understood, both when she signed the affidavit and at the 

hearing, the benefits of relinquishment over termination on another ground. 

As with the evidence of Mother’s current mental abilities generally, the only 

evidence that Mother did not understand the affidavit, besides her own testimony, 

came from her father and her grandmother—neither of whom was present when she 
17 

signed the affidavit. Again, the trial judge was free to believe the accounts of Bush, 

Johnson, and Berlinger over those of Mother, Paul, and Mary.

Mother testified she felt pressured to sign the affidavit, asserting Bush said 

she was a “dumb ass” if she did not sign it. Berlinger testified she did not hear Bush 

use that or any other derogatory language. Instead, Berlinger said, Bush explained 

each section of the affidavit to Mother. Berlinger also said she heard Bush ask 

Mother if she was signing the affidavit because she thought doing so was in the best 

interest of her children and not because of pressure or promises, and she heard 

Mother say yes. Feeling pressured to sign an affidavit of relinquishment does not 

rise to the level of duress or coercion. E.g., In re J.H., 486 S.W.3d 190, 195–97 (Tex. 

App.—Dallas 2016, no pet.); In re D.E.H., 301 S.W.3d 825, 830 (Tex. App.—Fort 

Worth 2009, pet. denied).

We conclude Mother has not shown on appeal that her affidavit of 

relinquishment resulted from fraud, duress, or coercion. 

II. Ineffective assistance of counsel 

A. Legal standards 

Indigent parents in Texas parental-termination cases enjoy a right to appointed 

and effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). We apply the 

established Strickland test in parental-termination proceedings. Id. at 545 (citing 

Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland, to establish an 

ineffective-assistance claim, an appellant must show the following: 

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious that 

counsel was not functioning as the “counsel” guaranteed the defendant 

by the Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires showing 

that counsel’s errors were so serious as to deprive the defendant of a 
18 

fair trial, a trial whose result is reliable. 

Strickland, 466 U.S. at 687. In other words, a parent must show that (1) counsel’s 

performance was deficient, and (2) the deficient performance prejudiced the parent’s 

case. M.S., 115 S.W.3d at 545. 

To determine whether representation was deficient, we must consider all of 

the circumstances surrounding the case and determine whether counsel was 

“reasonably effective.” Id. In doing so, we afford great deference to counsel’s 

performance, indulging “a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.” Id. (quoting Strickland, 466 

U.S. at 689). Only if counsel’s conduct is “so outrageous that no competent attorney 

would have engaged in it” will we find such performance deficient. Id. (quoting 

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

In conducting the harm analysis under the second prong of Strickland, 

reviewing courts must determine whether there is a reasonable probability that, but 

for the deficient performance, the result of the proceeding would have been different. 

M.S., 115 S.W.3d at 550. In this context, “[a] reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 

Thus, the parent must also show that “counsel’s deficient performance prejudiced 

the defense.” In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting Strickland, 

466 U.S. at 687). 

An allegation of ineffective assistance of counsel in a termination proceeding 

must be firmly founded in the record, and the record must affirmatively demonstrate 

the alleged ineffectiveness and the resulting harm. In re L.G.R., 498 S.W.3d 195, 

209 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). We may not speculate and 

find trial counsel ineffective when the record is silent regarding counsel’s reasons 

for her actions. Id.
19 

B. Application 

1. Waiver 

Relying on In re K.A.F., 160 S.W.3d 923 (Tex. 2005), the Department 

contends Mother waived her ineffective-assistance arguments because she did not 

raise them in her motion for new trial or at the hearing on her motion. The K.A.F.

court held a parent who did not raise ineffective assistance of trial counsel as an issue 

in the court of appeals could not raise it for the first time in the Texas Supreme Court. 

Id. at 928. The Department analogizes that Mother’s new lawyer was obliged to raise 

the ineffective-assistance argument concerning her previous lawyer at the first 

opportunity, which was the motion for new trial. 

We disagree. A complaint of ineffective assistance of counsel may be raised 

for the first time on direct appeal. See J.O.A., 283 S.W.3d at 340. A motion for new 

trial can be useful because it allows the complaining party to develop a record to 

support his complaint. However, the Department has not directed us to any authority 

suggesting a motion for new trial is a prerequisite to preserve error on ineffective 

assistance of counsel. The appellant may be unsuccessful in that complaint if the 

record below is not sufficiently developed, but the lack of merit in the complaint is 

distinct from the appellant’s right to assert the complaint. 

2. MHMRA records 

Mother contends Bush provided her ineffective assistance of counsel by

“fail[ing] to investigate fully the mental capacity of [Mother] so as to be certain that 

[Mother] knew the effects of the signing of a voluntary relinquishment of her 

parental rights to her children.” Mother appears to base her contention on the fact 

that Bush did not obtain the MHMRA records. Mother does not explain how Bush 

should have known to look for those records when the evidence suggests Mother 

herself denied any history of mental illness. 
20 

In any event, the MHMRA records reveal information about Mother’s mental 

health and abilities in 2012. They do not speak to her mental abilities at the time of 

removal, throughout this case, or when Mother signed the affidavit of 

relinquishment. Evidence about Mother’s mental abilities at those times came from 

multiple witnesses, most of whom testified Mother seemed to understand all relevant 

information. The trial judge questioned Mother at length about whether she 

understood the consequences of termination based on relinquishment as opposed to 

another ground, and Mother repeatedly confirmed her understanding. Given the 

other evidence concerning Mother’s mental capacity, we cannot say Bush’s not 

obtaining the MHMRA records was “so outrageous that no competent attorney 

would have engaged in it.” M.S., 115 S.W.3d at 545. 

Because Mother has not satisfied the first prong of the Strickland test 

(deficient performance), we need not consider the second prong (prejudice). Garcia, 

57 S.W.3d at 440. 

CONCLUSION

We overrule Mother’s issues and affirm the trial court’s judgment. 

 

 /s/ Tracy Christopher 

 Justice 

Panel consists of Justices Christopher, Jamison, and Brown.