                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00163-CV

                     IN THE INTEREST OF J.H., A CHILD,




                           From the 278th District Court
                              Madison County, Texas
                            Trial Court No. 05-10858-09


                          MEMORANDUM OPINION


       This is an appeal of a decree terminating appellant’s parental rights. The trial

court determined that the appeal is frivolous under section 263.405(d)(3) of the Family

Code. See TEX. FAM. CODE ANN. § 263.405(d)(3) (Vernon Supp. 2008). The appellant

contends in her sole issue that she received ineffective assistance of counsel at trial. We

will affirm.

                            Applicability of Section 263.405

       By unpublished order dated August 13, 2008, we directed the parties to brief the

issue of whether section 263.405 applies to this appeal because the termination decree

being appealed from is the second “final order” rendered in this case. In the first,
signed on July 7, 2006, the court appointed the Department of Family and Protective

Services as permanent managing conservator but did not terminate the parental rights

of Appellant “Dana.”1 In the second, signed on May 2, 2008, the court terminated

Dana’s parental rights and retained the Department as the child’s permanent managing

conservator.

         Dana did not respond to our briefing order. The Department did, explaining

why it believes this appeal is governed by section 263.405.                          We agree with the

Department’s conclusion.

         Section 263.405 applies to “a final order rendered under [Chapter 263,

Subchapter E]” of the Family Code (sections 263.401 through 263.407). TEX. FAM. CODE

ANN. § 263.405(a) (Vernon Supp. 2008); see id. §§ 263.401-.407 (Vernon 2002 & Supp.

2008). After the first “final order,” the Department filed a petition seeking termination

of Dana’s parental rights in April 2007. At that time, section 263.401(d) specifically

defined what constitutes a “final order.”

         For purposes of this section, a final order is an order that:

             (1) requires that a child be returned to the child’s parent;

             (2) names a relative of the child or another person as the child’s
             managing conservator;

             (3) without terminating the parent-child relationship, appoints the
             department as the managing conservator of the child; or



1
         To protect the identity of the child who is the subject of this suit, we shall refer hereinafter to the
mother by the pseudonym “Dana.” See TEX. FAM. CODE ANN. § 109.002(d) (Vernon 2002); TEX. R. APP. P.
9.8(b)(1).



In re J.H.                                                                                              Page 2
             (4) terminates the parent-child relationship and appoints a relative of
             the child, another suitable person, or the department as managing
             conservator of the child.

Act of May 31, 1997, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws 3733, 3769

(repealed 2007).2

         The order being appealed terminated Dana’s parental rights and appointed the

Department as permanent managing conservator. Thus, it is a “a final order rendered

under [Chapter 263, Subchapter E].” See id.; In re T.L.S., 143 S.W.3d 284, 287 (Tex.

App.—Waco 2004, no pet.).

                                 Ineffective Assistance of Counsel

         Dana contends in her sole issue that she received ineffective assistance of trial

counsel. However, because the trial court found Dana’s appeal to be frivolous, the issue

is whether the court abused its discretion by determining that her ineffective assistance

claim is frivolous. See In re K.D., 202 S.W.3d 860, 867 (Tex. App.—Fort Worth 2006, no

pet.); see also In re S.T., 263 S.W.3d 394, 400 (Tex. App.—Waco 2008, pet. denied) (when

underlying complaint in termination appeal is factual insufficiency, “the issue before us

is whether the court abused its discretion by determining that the evidence is such that

a factfinder could have reasonably formed a firm belief or conviction that the

Department's allegations are true”).

         To establish a claim for ineffective assistance of counsel, Dana must show that:

(1) counsel’s performance was deficient; and (2) “the deficient performance prejudiced


2
         The repeal of subsection (d) took effect on June 15, 2007 and applies only to a suit affecting the
parent-child relationship filed on or after that date. See Act of May 27, 2007, 80th Leg., R.S., ch. 866, §§ 5-
7, 2007 Tex. Gen. Laws 1837, 1838.


In re J.H.                                                                                             Page 3
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.’” In re H.R.M., 209 S.W.3d

105, 111 (Tex. 2006) (per curiam) (quoting In re M.S., 115 S.W.3d 534, 545 (Tex. 2003)

(quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674

(1984))). We begin with a “strong presumption” that counsel provided reasonably

professional assistance. Id. Smith bears the burden of overcoming this presumption.

See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); see also M.S., 115 S.W.3d

at 545 (Strickland “places a sufficiently high burden on the movant to prove ineffective

assistance of counsel”).

         Generally, the appellate record is insufficient to satisfy this burden. See In re

M.C.T., 250 S.W.3d 161, 172 (Tex. App.—Fort Worth 2008, no pet.); In re T.N.F., 191

S.W.3d 329, 330 (Tex. App.—Waco, order), disp. on merits, 205 S.W.3d 625 (Tex. App.—

Waco 2006, pet. denied). If the record is silent regarding the reason for the act or

omission which is the basis of an ineffective assistance complaint, we may not speculate

on that reason. See M.C.T., 250 S.W.3d at 172; In re S.L., 188 S.W.3d 388, 395 (Tex.

App.—Dallas 2006, no pet.); In re K.M.H., 181 S.W.3d 1, 7 n.1 (Tex. App.—Houston [14th

Dist.] 2005, no pet.).

         Here, Dana contends that her trial counsel rendered ineffective assistance by: (1)

failing to correspond or meet with her on a more frequent basis; (2) failing to contact

potential witnesses; (3) failing to contact her criminal defense attorney or anyone in the

U.S. Attorney’s office regarding her anticipated release from federal custody; and (4)

failing to contact any of her relatives to find a potential relative placement for J.H. In


In re J.H.                                                                             Page 4
addition, Dana notes that her trial counsel had to withdraw from the representation

after trial because of “chronic diabetes” and infers that this condition inhibited his

ability to “withstand the rigors and stresses of preparing and performing a trial.”

         A predominant impediment to Dana’s ineffective assistance claim is that she

presented no evidence—including testimony from her trial counsel—at the hearing on

her motion for new trial/statement of points on appeal.3                     Instead, Dana’s counsel

argued that she received ineffective assistance because of: (1) trial counsel’s allegedly

poor health; (2) counsel’s failure to locate witnesses to testify on her behalf; and (3)

counsel’s failure to speak with any relatives to explore the possibility of a relative

placement for J.H. See Love v. Moreland, No. 07-07-00418-CV, 2008 Tex. App. LEXIS

5605, at *1-2 n.3 (Tex. App.—Amarillo July 23, 2008, no pet.) (argument of counsel is not

evidence); Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex. App.—Tyler 2005, no pet.)

(same); Potter v. GMP, L.L.C., 141 S.W.3d 698, 704 (Tex. App.—San Antonio 2004, pet.

dism’d) (same).

         In a procedurally similar case, the Beaumont Court has summarily rejected an

ineffective assistance claim.

         If ineffective assistance of counsel were an arguable point, a record to
         support the claim should have been made at the motion for new trial
         hearing while appellate counsel represented the Franks. This requires trial
         counsel’s appearance. The fact that trial counsel did not appear at the
         hearing on the motion for new trial is some indication that there was no


3
         Dana makes extensive references in her brief to an affidavit she signed forty-nine days after the
court signed the order denying her motion for new trial and finding her appeal to be frivolous and which
was filed four days later. However, because this affidavit was not made or filed until after the court’s
plenary power had expired, we will not consider it. See TEX. R. CIV. P. 329b(e) (trial court’s plenary power
continues for thirty days after timely-filed motion for new trial is overruled).


In re J.H.                                                                                           Page 5
         record of ineffectiveness to develop. We will not second guess the trial
         court when no record of trial counsel’s performance and strategy is made.

In re A.F., 259 S.W.3d 303, 306 (Tex. App.—Beaumont 2008, no pet.) (emphasis added).

         Trial counsel should be afforded an opportunity to explain his conduct before he

is found to have provided ineffective assistance. S.L., 188 S.W.3d at 395 (citing Bone v.

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)). Otherwise, it is a rare occasion when

a finding of ineffective assistance can be made from the trial record alone. See M.C.T.,

250 S.W.3d at 172; S.L., 188 S.W.3d at 395; K.M.H., 181 S.W.3d at 7 n.1.

         Dana first contends that her trial counsel did not provide effective assistance

because of his chronic diabetes, which he cited as the basis for withdrawing after trial.

However, aside from the statement in trial counsel’s motion to withdraw regarding his

medical condition, there is no evidence in the record to show if or how his condition

impacted his representation of Dana.

         The remainder of Dana’s complaints may be summarized as allegations that trial

counsel failed to locate certain unidentified witnesses to testify on her behalf or to

provide an alternative placement for J.H. In criminal cases addressing allegations of

ineffective assistance for failure to call a witness, courts have insisted that the defendant

show that the witness: (1) was available to testify; and (2) would have provided

favorable testimony. See Ex parte Ramirez, No. WR-25,057-06, 2007 Tex. Crim. App.

LEXIS 1750, at *11 (Tex. Crim. App. Dec. 12, 2007); Lee v. State, 186 S.W.3d 649, 659 (Tex.

App.—Dallas 2006, pet. ref’d).




In re J.H.                                                                             Page 6
         Here, because Dana did not identify any particular witness who was not called to

testify and did not identify any particular relative who was willing and able to provide

a home for J.H., she necessarily could not show that such witness or relative was

available to testify on her behalf. Therefore, she has failed to overcome the strong

presumption that counsel provided reasonably professional assistance. See H.R.M., 209

S.W.3d at 111.

         Accordingly, the court did not abuse its discretion by determining that Dana’s

appeal is frivolous. See S.T., 263 S.W.3d at 402; K.D., 202 S.W.3d at 868.

         We overrule Dana’s sole issue and affirm the judgment.



                                                        FELIPE REYNA
                                                        Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed December 10, 2008
[CV06]




In re J.H.                                                                         Page 7
