In re K.K.
- Reporters:
- , ,
- Before:
- Gray, Vance, Reyna (per curiam)
PER CURIAM.
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
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.
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.”
Because this is an accelerated appeal (see
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.
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 cases 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.
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
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
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
Chief Justice GRAY dissenting.
TOM GRAY, Chief Justice, dissenting opinion to abatement order.
I dissent to the new procedure created out of whole cloth by the majority.
The hostility continues — unabated. See In re M.A.H., No. 10-02-00234-CV, 2004 WL 1691097, at *3, 2004 Tex.App. LEXIS 6913, at *8-*9 (Tex.App.-Waco July 28, 2004, no pet.) (Gray, C.J., dissenting). Is it effective assistance of counsel or is it now the appointment of effective counsel? See Brice v. Denton, 135 S.W.3d 139, 146-51 & nn. 1-3 (Tex.App.-Waco 2004) (Gray, C.J., dissenting), pet. denied sub nom. Denton ex rel. A.R.B. v. Brice, No. 04-0391, 2005 Tex. LEXIS 380 (Tex. May 13, 2005) (order) (not designated for publication).1 The appellate counsel has the option to proceed simultaneously with a writ of habeas corpus to develop any factual record needed to show counsel‘s conduct and reasons for it. See
I would affirm the trial court‘s judgment. More later if this order is set aside by mandamus; if not, then after the appeal is reinstated.
Notes
(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.“).
The Legislature again amended the statutes governing the appointment of counsel for indigent parents in suits affecting the parent-child relationship in its last session. E.g., Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.06, 2005 Tex. Sess. Law Serv. 621, 623 (Vernon) (to be codified at• 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).