in the Interest of S.K.A., a Child

• Court: Court of Appeals of Texas
• Decided: March 11, 2009
• Docket: 10-08-00347-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00347-CV

In the Interest of S.K.A., a Child,

From the 13th District Court

Navarro County, Texas

Trial Court No. 07-16859-CV

abatement ORDER

            After a bench trial, the parental rights of Charlene and Donald to S.K.A. were terminated.  They both appeal, asserting multiple issues.

            In Issue C.1., Charlene and Donald both assert that their appointed trial counsel was ineffective because he: (1) failed to file a motion for continuance; (2) failed to investigate the case; (3) failed to call witnesses to rebut petitioner’s claims; and (4) failed to undertake discovery.  In their brief, they request abatement of this appeal so they can develop a record in the trial court to support their ineffective-assistance claims.

            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.  See In re K.K., 180 S.W.3d 681, 683, 685-86 (Tex. App.—Waco 2005, order).

We therefore abate this appeal and remand the cause to the trial court for a hearing at which Appellants have an opportunity to develop an evidentiary record in support of their ineffective assistance of counsel claims.[1]  See K.K., 180 S.W.3d at 887-88; see also In re T.N.F., 191 S.W.3d 329 (Tex. App.—Waco 2006, order).  The trial court is instructed to hold this hearing within twenty 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 Reyna, and

Justice Davis

(Chief Justice Gray does not join this order)

Appeal abated

Order issued and filed March 11, 2008

Do not publish

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[1] When ineffective assistance is raised for the first time on appeal, abatement for a hearing allows trial counsel, who has not had an opportunity to respond to the allegations, 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”).