In the Interest of T.N.F.

ABATEMENT ORDER PER CURIAM. After a jury trial, the parental rights of Tammy Fulton, Ray Fulton, and Brandon Wobig to their respective children were terminated. All three appeal. In one issue, Tammy (the mother of all four children), through her appointed appellate counsel, asserts that her appointed trial counsel was ineffective because he: (1) failed to file a motion for new trial and failed to preserve complaints on the legal and factual sufficiency of the evidence; (2) had a conflict of interest with his client that hindered his representation of her; and (3) failed to undertake any pretrial [330] discovery. The Department of Family & Protective Services responds that the record does not support Tammy’s ineffective-assistance claims. The second aspect of Tammy’s ineffective-assistance issue warrants elucidation. Tammy and her husband Ray Fulton were represented by separate counsel.1 The record is replete with evidence of Ray’s abuse of Tammy (including his threats to kill her) and the children and the dirty, unsanitary condition of his home. On the second day of trial, the Department’s attorney informed the trial court that Tammy’s trial counsel had not been permitted to visit with Tammy outside the presence of Ray and Ray’s attorney and expressed a concern that this apparent conflict between Tammy and her trial counsel could form the basis of an ineffective-assistance claim. Tammy’s trial counsel concurred that Ray had not permitted him to visit with Tammy; he had only very brief telephone discussions with her where she hung up on him, and he had written to her on the need to prepare for trial. He was told by Tammy that he was to deal only with Ray and Ray’s counsel and that her witnesses were Ray’s witnesses. On appeal, the complaint is that Tammy and her trial counsel had a conflict (the source of which appears to be Ray’s control over Tammy) that prevented trial counsel from effectively assisting Tammy in the Department’s suit to terminate her parental rights to her four children.2 The gist of the allegation is that Tammy’s trial counsel did nothing before trial to resolve this conflict so that he could effectively defend Tammy’s parental rights by pursuing his own trial strategy, rather than Ray’s and Ray’s trial counsel’s strategy.3 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, 688, 685-86 (Tex.App.-Waco 2005, order). “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.)); see, e.g., In re J.W., 113 S.W.3d 605, 616 (Tex.App.-Dallas 2003, pet. denied) (appellants did not establish ineffective assistance in part because the record was silent on counsel’s reasons for the complained-of failures). Various courts have highlighted the record requirement and the problem it poses for appellants who urge ineffective-assistance claims in termination cases.4 As [331] Texas courts began to develop ineffective-assistance claims in termination appeals 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). 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. Apart from the preservation issue,5 in asserting that Tammy cannot show prejudice, the dissenting opinion first begs the question under the circumstances of this case. If Tammy’s trial counsel was ineffective because of the conflict and thus did not effectively contest the Department’s evidence and offer controverting evidence — and as a result of this ineffectiveness the evidence is legally and factually sufficient — a finding that trial counsel’s ineffective assistance did not prejudice Tammy because the evidence is legally and factually sufficient is classic circular reasoning. And while the record before us exposed the conflict between Tammy and her trial [332] counsel on the second day of trial, unless we were to hold that he was per se ineffective because of proceeding to trial despite the conflict, the limited information before us is silent on, among other things: when the conflict began and the precise circumstances of it; whether and/or why Tammy’s trial counsel apparently did nothing about it; and trial counsel’s reasons for his conduct or other explanation. Tammy simply has not had a meaningfully opportunity to develop a record that might support her ineffective-assistance claim, and the dissent’s assertion that the relevant record is before us misses this mark. We abate this appeal and remand the cause to the trial court for a hearing at which Appellant Tammy Fulton has an opportunity to develop an evidentiary record in support of her ineffective assistance of counsel claims.6 See K.K., 180 S.W.3d at 687-88. 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, Appellant Tammy Fulton shall have ten days to file a supplemental brief, after which Appellee shall have ten days to file a brief in response. Chief Justice GRAY dissenting. Footnotes [1] Ray’s appointed appellate attorney filed an Anders brief. [2] Cf. Brice v. Denton, 135 S.W.3d 139, 140-42 (Tex.App.-Waco 2004, pet. denied) (indigent parent was denied effective assistance of counsel when attorney was appointed on day of final hearing on petition to terminate parental rights and attorney did not request continuance, did not communicate with client, and proceeded to trial). [3] The conflict aspect of the ineffective-assistance issue arguably relates to the other two aspects in that Tammy’s trial counsel, because of this conflict, could not effectively contest the Department's evidence (in part by undertaking pretrial discovery) and present controverting evidence on Tammy's behalf. [4] E.g., In re F.A.A., 2005 WL 1840098, at ⅜2 (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 ques [331] tion and answer form do not appear in [the] record. It is possible for counsel to have legitimate reasons for his conduct.”) (citations omitted); In re B.T., 154 S.W.3d 200, 205-06 (Tex.App.-Fort Worth 2004, no pet.) ("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); In re J.M.S., 43 S.W.3d 60, 64 (Tex.App.-Houston [1st Dist.] 2001, no pet.) ("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). [5] Tammy's appointed appellate counsel recognizes that legal and factual insufficiency cannot be raised on appeal because those complaints were not preserved by Tammy’s trial counsel in the trial court. Thus, the dissent’s assertion that Tammy is not even asserting legal and factual insufficiency on appeal is disingenuous. [6] Moreover, 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 Rylan-derv. 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”).