


 
IN THE
TENTH COURT OF APPEALS
 










 
 

No. 10-04-00303-CV
 
In the
Interest of K.K., L.M., M.M., and T.K.,
Children
 
 

From the 361st District Court
Brazos County, Texas
Trial Court No.
03-000440-CV-361
 

ABATEMENT  ORDER

 
Introduction
          After a nonjury trial, the trial court
terminated the parental rights of Becky King to her four children, K.K., L.M.,
M.M., and T.K.  The court also terminated the parental rights of Major Eugene
Moore to L.M. and M.M., who are his children.  King and Moore (Appellants)
appeal the order terminating their parental rights.
          In one issue, Appellants, through
their respective appointed appellate counsel, assert that their appointed trial
counsel were ineffective because neither attorney moved the trial court to
dismiss the termination proceeding in accordance with section 263.401 of the
Family Code.  See Tex. Fam. Code
Ann. § 263.401 (Vernon 2002).  Nothing in the record indicates trial
counsels’ reasons or strategies for not moving to dismiss the proceeding.
Background
          In a parental-rights termination case
where the parent asserts on appeal the ineffective assistance of trial counsel,
but nothing in the record indicates trial counsel’s reasons or strategies for
the complained-of conduct, the lack of a record is practically always fatal to
the parent’s appellate issue under current Texas law.  Because of this and
because they have no further recourse, we abate this appeal and remand the
cause to the trial court for a hearing at which Appellants can have a
meaningful opportunity to develop an evidentiary record to support their
ineffective assistance of counsel claims.
                The trial
court’s termination order was signed on September 29, 2004.  The deadline for
any motion for new trial was thirty days after the judgment was signed.  Tex. R. Civ. P. 329b(a).  But a motion
for new trial does not extend the notice of appeal deadline in a termination
case.  Tex. Fam. Code Ann. §
263.405(c) (Vernon 2002); In re B.G., 104 S.W.3d 565, 567 (Tex.
App.—Waco 2002, order).  And no later than fifteen days after the termination
order, Appellants were required to file statements of points on which they
intended to appeal.  Tex. Fam.
Code Ann. § 263.401 (Vernon 2002); but see In re J.J.O., 131
S.W.3d 618, 626-27 (Tex. App.—Fort Worth 2004, no pet.) (holding that an
appellant’s failure to file a statement of points does not constitute a waiver
of nonjurisdictional issues on appeal).[1] 
In any event, an ineffective assistance claim can be raised for the first time
on appeal without being preserved in the trial court.  In re B.T., 154
S.W.3d 200, 205 (Tex. App.—Fort Worth 2004, no pet.); In re J.M.S., 43
S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see In re M.S.,
115 S.W.3d 534, 546-50 (Tex. 2003) (considering ineffectiveness of counsel even
though no motion for new trial filed).
Within thirty days after the termination order,
a trial court “shall hold a hearing to determine whether: (1) a new trial
should be granted; (2) a party’s claim of indigence, if any, should be
sustained; and (3) the appeal is frivolous as provided by Section 13.003(b),
Civil Practice and Remedies Code.”  Tex.
Fam. Code Ann. § 263.405(d) (Vernon 2002).
Because this is an accelerated appeal (see
Tex. Fam. Code Ann. § 109.002(a)
(Vernon 2002)), Appellants had twenty days (until October 19, 2004) after the
termination order to file their notices of appeal.  See Tex. R. App. P. 26.1(b).  King’s trial
counsel timely filed her notice of appeal on October 7, 2004.  After being
granted an extension of time, Moore’s trial counsel filed his notice of appeal
on October 26, 2004.
            The trial court appointed King’s
appellate counsel on January 20, 2005, almost four months after the termination
order.  The Clerk’s Record is silent on when Moore’s appellate counsel was
appointed, but it occurred at least after October 2004, and from the motions
and correspondence in this appeal, it appears to have been in December 2004 or
January 2005.
The
Right to Effective Assistance of Counsel
          Indigent
persons have a statutory right to counsel in parental-rights termination
cases.  Tex. Fam. Code Ann. § 107.013(a)(1)
(Vernon Supp. 2004-05).[2] 
The Texas Supreme Court recently held that this right includes the right to
effective counsel.  In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).  We
have held that the right to effective counsel extends to the appellate level.  See
In re T.V., 8 S.W.3d 448, 449 (Tex. App.—Waco 1999, order).
          In
analyzing the effectiveness of counsel in a parental-rights termination case,
we follow a two-pronged standard set forth by the United States Supreme Court
in Strickland v. Washington to determine whether an attorney’s
representation was so inadequate as to violate the right to effective
assistance of counsel.  M.S., 115 S.W.3d at 545 (citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Brice
v. Denton, 135 S.W.3d 139, 141 (Tex. App.—Waco 2004, pet. denied).  To show
ineffectiveness of counsel in a termination case, the appellant must show (1) that
counsel’s assistance fell below an objective standard of reasonableness and (2)
that counsel’s deficient assistance, if any, prejudiced the defendant.  M.S.,
115 S.W.3d at 545 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at
2064).  There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.”  Id. (quoting Strickland,
466 U.S. at 689, 104 S.Ct. at 2065).
The
Inequity in Termination Appeals
          Strickland’s
“record” requirement also applies to ineffective-assistance claims in
termination cases:  “An allegation of ineffective assistance
must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.”  In re S.R.C., 2003 WL
22966325 at *2 (Tex. App.—Fort Worth Dec. 18, 2003, no pet.) (mem. op.) (citing
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)).  For
example, the Dallas Court of Appeals has held that the appellants did not
establish ineffective assistance in part because the record was silent on
counsel’s reasons for the complained-of failures.  In re J.W., 113
S.W.3d 605, 616 (Tex. App.—Dallas 2003, pet. denied) (citing Thompson, 9
S.W.3d at 813-14).
Various courts have highlighted the record
requirement and the problem it poses for appellants who urge
ineffective-assistance claims in termination cases.[3]  As
 Texas courts began to develop ineffective-assistance claims in termination and
the law in Texas was still unsettled, the Houston Fourteenth noted the record
requirement’s procedural pitfall that awaited such claimants:
In this
case, appellant has developed no record of her trial counsel’s reasons for the
actions or omissions of which appellant complains. . . .  We recognize that an indigent parent
might have no meaningful opportunity to develop a record necessary to support a
claim of ineffective assistance where the motion for new
trial must be filed before appellate counsel is appointed and/or the reporter’s
record from trial is completed.  To the extent a right to effective assistance
of counsel becomes established in Texas in this context, this aspect will
obviously warrant further attention.  Until then, and despite potential
inequity, we are not persuaded that reversal of a termination decision could be
justified where ineffective assistance is not clearly demonstrated by the
record.
 
In re M.R.E., 2002 WL 246404 at *1 & n.5 (Tex. App.—Houston [14th Dist.] Feb. 21, 2002, no pet.) (not designated for publication).
Unlike ineffective-assistance claims in
criminal cases, which have the writ of habeas corpus as a safety net to develop
a record for such claims,[4] parental-rights termination cases have no similar
mechanism available.  As the court noted in M.R.E., indigent parents
have no “meaningful opportunity” to develop a post-trial record to support an
ineffective-assistance claim.  In termination cases, as the
applicable post-trial deadlines and the facts of this appeal demonstrate, not
only is there no meaningful opportunity, but it is a practical impossibility for
an indigent parent to obtain appointed appellate counsel, file a motion for new
trial alleging ineffective assistance, and submit evidence (either by testimony
or affidavit from appointed trial counsel) to develop a record that shows trial
counsel’s reasons or strategies for the conduct that is the basis for the
ineffective-assistance claim.
The “potential inequity” described in M.R.E.
is a present and fatal inequity in termination cases.  It is our duty to
strictly scrutinize this inequity and to strictly construe indigent parents’
rights in their favor.  Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985) (“in a case terminating parental rights, the proceedings
should be strictly scrutinized and the involuntary termination statutes
strictly construed in favor of the parent.”).  Indigent parents
have statutory and constitutional rights to effective assistance of counsel in
termination cases, but Texas law provides no meaningful or practical procedural
mechanism in which those rights can be protected and remedied on appeal.  In
adopting a right to the effective assistance of counsel in termination cases,
the Texas Supreme Court noted that “‘[i]t would seem a useless gesture on the
one hand to recognize the importance of counsel in termination proceedings, as
evidenced by the statutory right to appointed counsel, and, on the other hand,
not require that counsel perform effectively.’”  M.S., 115 S.W.3d at 544
(quoting In re K.L., 91 S.W.3d 1, 13 (Tex. App.—Fort Worth 2002, no
pet.)).  It seems to us also a “useless gesture” to provide indigent parents
with a right to effective assistance of counsel in termination cases but not to
provide them with the procedural ability to prevail on a meritorious
ineffective-assistance claim.
The
Remedy
Texas courts have
looked to criminal law for guidance on issues arising in termination cases.  See,
e.g., M.S., 115 S.W.3d at 543-45 (adopting Strickland standard for
ineffective-assistance claims in termination cases); In re E.L.Y., 69
S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (adopting Anders procedures
in termination cases).  We therefore turn to it again.  The criminal law
procedure that most closely approximates a remedy for the inequity in
termination cases is the abatement-remand procedure adopted and employed in Jack
v. State.  See Jack v. State, 42 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2001, order).  In Jack, the First Court of Appeals abated an
appeal for the filing of an out-of-time motion for new trial because “[e]verything
in the record indicate[d] that appellant was not assisted by counsel during the
30-day critical stage for filing a motion for new trial.”  Id. at 293. 
The court abated the appeal “to allow appellant the opportunity to rebut the
rebuttable presumption that he was effectively represented by [his attorney]
during the 30-day period after [sentencing].”  Id.  The constitutional underpinning
for the procedure enunciated in Jack and similar cases is the Sixth
Amendment right to counsel.  Id.; see Sossamon v. State, 110
S.W.3d 57, 60 (Tex. App.—Waco 2002, order, pet. ref’d).
Abatement
and remand to the trial court for a hearing has been used in termination cases
in other contexts.  See, e.g., In re K.M., 2004 WL 2826851 at *4 (Tex. App.—Amarillo Dec. 8, 2004, order) (abating appeal and remanding to trial court for
hearing on issues of whether father’s appeal is frivolous under section
263.405(d)(3) of Family Code and father’s entitlement to a free reporter’s
record); In re S.D.S., 2004 WL 1879649 at *1 (Tex. App.—Amarillo Aug.
23, 2004, order) (abating appeal and remanding to trial court for hearing on
whether parents desired to prosecute appeal, whether parents were indigent and
entitled to appointed counsel, and whether parents had been denied effective
assistance of counsel on appeal), disp’d on merits, 2005 WL 1038817
(Tex. App.—Amarillo May 3, 2005, pet. denied); In re T.A.C.W., 143
S.W.3d 249, 251 (Tex. App.—San Antonio 2004, order) (abating appeal and
remanding to trial court for hearing on issues of whether father’s appeal is
frivolous under section 263.405(d)(3) of Family Code), disp’d on merits,
2004 WL 1835960 (Tex. App.—San Antonio Aug. 18, 2004, no pet.) (mem. op.); In
re J.A.L., 2004 WL 526924 at *1 (Tex. App.—Beaumont Mar. 18, 2004, no pet.)
(mem. op.) (before dismissing for want of prosecution, appeal had been abated
for hearing in trial court on whether parent was deprived of free record due to
ineffective assistance of counsel); Mendoza v. Texas Dep’t Prot. & Reg.
Servs., 2004 WL 403093 at *1 (Tex. App.—Amarillo Mar. 4, 2004, order)
(abating appeal and remanding to trial court for hearing on whether parent was
indigent and entitled to appointed counsel), disp’d on merits, 2004 WL
1630765 (Tex. App.—Amarillo July 21, 2004, no pet.) (mem. op.); In re
B.T.B., 2004 WL 1632845 at *1 (Tex. App.—Waco July 21, 2004, no pet.) (mem.
op.) (appeal had been abated for hearing in trial court on whether parent was
represented by counsel or if counsel should be appointed); In re T.V., 8
S.W.3d 448, 449-50 (Tex. App.—Waco 1999, order) (abating appeal and remanding
to trial court for hearing on whether parent desired to prosecute appeal, whether
parent was indigent, and why no brief had been filed on parent’s behalf), disp’d
on merits, 27 S.W.3d 622 (Tex. App.—Waco 2000, no pet.); see also Brice,
135 S.W.3d at 146-49 (Gray, C.J., dissenting) (suggesting abatement to trial
court for hearing on whether parent entitled to appointed counsel on appeal).[5]
We
are not aware of any reason why such a procedure should not be available so
that a record can be developed on an indigent parent’s ineffective-assistance
claim.[6] 
This procedure will cause only a slight delay in the appeal and, given the
narrow focus and the necessity for only one usually brief hearing, should not
expend much judicial resources.[7]  Whether
abatement is appropriate will depend on the facts of each termination case and
the specific allegation of ineffective assistance.[8]
 We hold that it is appropriate in this case.


Conclusion
Accordingly,
we abate this appeal and remand the cause to the trial court for a hearing at
which Appellants may develop an evidentiary record on their ineffective
assistance of counsel claims.  The trial court is instructed to hold this
hearing within thirty days of the date of this abatement order.  No later than ten
days after the date of the hearing, a supplemental clerk’s record and a
supplemental reporter’s record pertaining to the hearing shall be filed in this
appeal, at which time the appeal will be reinstated.  After the supplemental
clerk’s and reporter’s records are filed, Appellants shall have ten days to
file a supplemental brief, after which Appellee shall have ten days to file a
brief in response.
                                                                        
PER CURIAM
 
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
          (Chief
Justice Gray dissenting)
Appeal abated
Order issued and filed October
19, 2005
Publish




 




    [1]       The
legislature recently amended section 263.405 by adding subsection (i), which
provides:
 
(i)  The appellate court may not consider any
issue that was not specifically presented to the trial court in a timely filed
statement of the points on which the party intends to appeal or in a statement
combined with a motion for new trial.  For purposes of this subsection, a claim
that a judicial decision is contrary to the evidence or that the evidence is
factually or legally insufficient is not sufficiently specific to preserve an
issue on appeal.
 
Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Sess. Law Serv. 332 (Vernon).  Thus, the importance of having the effective assistance
of counsel in this critical stage of a termination case has only heightened.  Cf.
Radcliff v. State, 126 S.W.3d 534, 535 (Tex. App.—Houston [1st Dist.] 2003,
order) (“The hearing on a motion for new trial is a critical stage of the
proceedings, as it is the only opportunity to present to the trial court
certain matters that may warrant a new trial and to make a record on those
matters for appellate review.”) (citing Trevino v. State, 565 S.W.2d
938, 940 (Tex. Crim. App. 1978)); Jack v. State, 42 S.W.3d 291, 292 (Tex. App.—Houston [1st Dist.] 2001, order) (“the time period for filing a motion for new
trial is a critical stage of a criminal proceeding in which defendants are
entitled to assistance of counsel.”).


    [2]       We
have held that the right to effective assistance of counsel in termination
cases is also of a constitutional dimension involving due process.  See In
re E.L.Y., 69 S.W.3d 838, 840-41 (Tex. App.—Waco 2002, order); In re
B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.—Waco 2001), rev’d on other
grounds, 113 S.W.3d 340 (Tex. 2002); accord In re J.M.S., 43 S.W.3d
60, 63 (Tex. App.—Houston [1st Dist.] 2001, no pet.).  Parental rights
themselves are of constitutional dimension.  In re J.W.T., 872 S.W.2d
189, 194-95 (Tex. 1994).  A parent's right to “the companionship, care, custody
and management” of his or her children is a constitutional interest “far more
precious than any property right.”  Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (quoting Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)).  “Termination
of parental rights is traumatic, permanent, and irrevocable.”  In re M.S.,
115 S.W.3d 534, 549 (Tex. 2003).  After a six-month statutory period,
termination orders are final and may not be challenged by direct or collateral
attack.  See Tex. Fam. Code Ann.
§ 161.211 (Vernon 2002).  Therefore, in a case terminating parental rights, the
proceedings should be strictly scrutinized and the involuntary termination
statutes strictly construed in favor of the parent.  Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).


    [3]       E.g., In re
F.A.A., 2005 WL 1840098 at *2 (Tex. App.—Corpus Christi Aug. 4, 2005, no
pet. h.) (mem. op.) (“If counsel’s reasons for his conduct do not appear in the
record and there is at least the possibility that the conduct could have been
legitimate trial strategy, we will defer to counsel’s decisions and deny relief
on an ineffective assistance claim on direct appeal.  Counsel’s
reasons for failing to object and present an offer of proof in question and
answer form do not appear in [the] record.  It is possible for counsel to have
legitimate reasons for his conduct.”) (citations omitted); B.T.,
154 S.W.3d at 205-06 (“By not presenting the issue in a motion for new trial and
developing a record of ineffective behavior, the proponent
of the claim has a difficult burden to overcome because the challenged action
might be considered sound trial strategy.”); In re A.J.H., 2004 WL
414093 at *7 (Tex. App.—Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.)
(“Appellant has the burden to rebut this presumption by presenting evidence
illustrating why trial counsel did what he did.  An appellant usually cannot
meet this burden if the record does not specifically focus on the reasons for
trial counsel’s conduct.  Although Jamie filed a motion for new trial, on which
a hearing was held, trial counsel did not attend the
hearing.  In the absence of a proper evidentiary record developed at a hearing
on a motion for new trial, it is extremely difficult to show that trial
counsel’s performance was deficient.”) (citations omitted); J.M.S.,
43 S.W.3d at 64 (“The defendant must overcome the presumption that the challenged
action might be considered sound trial strategy.  Furthermore, such a complaint
can be raised for the first time on appeal without being preserved in the trial
court.  However, by not presenting the issue in a motion for new trial and
developing a record of ineffective behavior, the proponent of the claim has a
difficult burden to overcome:  that the challenged action might be considered
sound trial strategy.”) (citations omitted).


    [4]       A
hearing on a writ of habeas corpus is the preferable forum for developing a
record of ineffective assistance in criminal cases because the record in a
direct appeal is usually not developed for the litigation of such a claim.  See
Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 1694, 155
L.Ed.2d 714 (2003); Freeman v. State, 123 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.  “A petition for writ of habeas
corpus usually is the appropriate vehicle to investigate ineffective-assistance
claims.”  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).


    [5]       Texas courts have also employed the abatement-remand procedure in other types of civil
cases involving myriad issues.  See, e.g., In re A.C.S., 157 S.W.3d 9,
15 (Tex. App.—Waco 2004, no pet.) (noting that an appeal can be abated if trial
court files untimely findings and appellant can show harm); Westcliffe, Inc.
v. Bear Creek Constr., Ltd., 105 S.W.3d 286, 292 (Tex. App.—Dallas 2003, no
pet.) (appeal had been abated for trial court to hold hearing on accuracy of
master’s audiotaped record); Wilson v. Lott, 65 S.W.3d 104, 106 (Tex.
App.—Amarillo 2000, order) (abating appeal for trial court to determine whether
more than one judgment had been rendered and if so, for trial court to render
one final judgment); see also Smith v. Smith, 63 S.W.3d 599, 600 (Tex.
App.—Waco 2002) (Gray, C.J., dissenting) (suggesting abatement in divorce appeal
for ruling by trial court on wife’s motion to suspend order), order
withdrawn as aff’d, 143 S.W.3d 206 (Tex. App.—Waco 2004, no pet.).
 


    [6]       When
ineffective assistance is raised for the first time on appeal, this procedure
will also allow trial counsel, who has not had an opportunity to respond to the
allegation, such an opportunity.  See Rylander v State, 101 S.W.3d 107,
110 (Tex. Crim. App. 2003) (“because the ineffective assistance claim is raised
on direct appeal, trial counsel has not had an opportunity to respond to these
areas of concern”).
 


    [7]       In
the second ruling in Jack, the court determined that a second abatement
and remand were necessary to recommence the time period for filing a motion for
new trial.  See Jack v. State, 64 S.W.3d 694, 697 (Tex. App.—Houston [1st Dist.] 2002), pet. dism’d, 149 S.W.3d 119 (Tex. Crim. App. 2004).  In a
concurring opinion, Justice Cohen aptly elucidated the role of courts in
providing a procedural mechanism to protect rights:
 
· Courts do not exist to conserve judicial resources. 
Courts exist to expend judicial resources, and they should cheerfully do so to
protect constitutional rights, such as the right to counsel.  If courts cannot
do that, then judicial resources are not worth conserving.
· No constitution says that courts should
conserve judicial resources.  Constitutions say the opposite.  Constitutions
create rights.  The people count on us judges to enforce them.  The Texas
Legislature commands us to do so.  We have sworn to do so.  Nobody else can do
so.  In this case, we are doing so.
. . .
· No judicial resources were wasted in this
case.  The trial judge signed his findings 38 days after our abatement order
issued.  The record got here three weeks later.  The abatement hearing covers
only six pages of testimony and lasted only minutes.  The defendant answered
seven questions; trial counsel answered five.  The trial judge commented that
this was a “simple record” to make.
. . .
· I ask:  If we choose to conserve our judicial
resources instead of using them to protect the United States and Texas constitutional and statutory right to counsel, then what better use, exactly, are we
conserving them for?
 
Id. at 697-98
(Cohen, J., concurring).
            


    [8]       In
some appeals, a record will not be necessary because the complained-of conduct
may be such that no competent attorney would have engaged in it.  In others,
the reason or strategy for the conduct may be readily apparent and a record
unnecessary.  And in yet others, the complained-of conduct may not be
ineffective as a matter of law.


