Affirmed and Majority and Concurring Memorandum Opinions filed
December 10, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00599-CV

          IN THE INTEREST OF B.M., M.L., AND A.A.C., CHILDREN


                   On Appeal from the 314th District Court
                            Harris County, Texas
                     Trial Court Cause No. 2012-02208J


           CONCURRING MEMORANDUM
                   OPINION
      I agree with the result in this case but write separately to address several
points.

      First, I would not address the sufficiency of the evidence under Texas
Family Code section 161.001(1)(N). Appellant failed to address all grounds to
support termination and therefore, as noted by the majority, she waived this point
on appeal. See Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d
85, 102–03 (Tex. App.―Houston [1st Dist.] 2006, no pet.).

      Second, part of the majority’s analysis refers to fraud claims made by
appellant in her motion for new trial, not those raised before or during trial. I do
not believe that we should address factual claims made in a motion for new trial
when appellant fails to present that evidence to the trial judge by getting a hearing
on the motion for new trial. See Felt v Comerica Bank, 401 S.W.3d 802, 808 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (op. on reh’g).

      Third, because Appellant failed to get a hearing on her motion for new trial
where she raised the issue of ineffective assistance of counsel, we have no basis on
which to conclude that trial counsel was ineffective. When the record is silent as
to the reasons for counsel’s actions, we may not speculate to find trial counsel
ineffective. P.W. v Dep’t of Family & Protective Servs., 403 S.W.3d 471, 476
(Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.); In re K.M.H., 181
S.W.3d 1, 7 n.1 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We should not
consider the affidavit of appellant or her new exhibits when deciding this issue.

      On a few occasions, the trial record itself may support a claim of ineffective
assistance of counsel, but there is nothing in this trial record to support such a
claim. See In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (per curiam). In order
to consider the claims that counsel failed to meet with appellant, failed to ask for a
continuance to obtain a witness’s presence, and failed to offer evidence and call
other witnesses, we need a record. And trial counsel must be given an opportunity
to rebut the claims made by the appellant in her affidavit. I would not address in
our opinion any of the claims made by appellant in her affidavit, nor would I
speculate that any failure by trial counsel was harmless.

      While some courts have abated the case to hold a hearing on the motion for
new trial, those abatements occurred under an old statutory scheme for appeals in

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parental-termination cases. See In re V.V., 349 S.W.3d 548 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied) (op. on reh’g en banc). Here appellate counsel made
an appearance even before the final judgment was rendered and was able to file a
timely motion for new trial. Counsel should get a hearing on the motion for new
trial in order to properly present new evidence relating to a claim of ineffective
assistance.




                                     /s/       Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, Donovan, and Brown (Brown, J. majority).




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