In re K.K.
| Decision Date | 19 October 2005 |
| Docket Number | No. 10-04-00303-CV.,10-04-00303-CV. |
| Citation | 180 S.W.3d 681 |
| Parties | In the Interest of K.K., L.M., M.M., and T.K., Children. |
| Court | Texas Supreme Court |
James Kent Schuster, Hearne, Jana L. Foreman, CE Borman & Associates, College Station, Paige W. Osburn, Bryan, Jami G. Lowry, Franklin, for appellant.
Raymond L. Thomas Jr., Brazos County Dist. Atty., Bryan, for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
ABATEMENT ORDER
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.
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.) ( 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) ().
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.
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).
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) (). 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 (). 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...
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