Friday, October 21, 2005
Case Law Development: Allowing Indigent Parents An Opportunity to Prove Ineffective Assitance of Counsel in Termination Cases
Concerned that indigent parents, whose parental rights have been terminated, are not given a realistic opportunity to develop a record on appeal due to the tight filing deadlines, the Texas Court of Appeals has held that appellate courts should use the remedy of abatement of the appeal and remand for the purposes of a developing a record when necessary to insure an adequate review of the issue of ineffective assistance of counsel. As the court noted, "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." However because appeal must be taken within 30 days of the termination order, most indigent parents are unable to secure appellate counsel in time to develop this record. Thus, the court held that abatement and remand to the trial court for a "meaningful opportunity to develop an evidentiary record to support their ineffective assistance of counsel claims" is necessary to protect the parent's constitutional interests.
A brief but strongly worded dissent by one judge objects to "the new procedure created out of whole cloth by the majority" and asks, without elaboration, "Is it effective assistance of counsel or is it now the appointment of effective counsel?" Obviously the issue of how far appellate courts should go to review the conduct of attorneys in termination cases has been a point of some disagreement among members of the court for some time.
In the Interest of K.K., L.M., M.M., AND T.K., 2005 Tex. App. LEXIS 8647 (October 19, 2005)
Opinion on the web at http://www.10thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=6898 & dissent at http://www.10thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=6903 (last visited October 20, 2005 bgf)