The opinion
JUSTICE RICE,
concurring.
¶40 I concur with the results reached by the Court, but offer some additional thoughts regarding Issue 2, the ineffective assistance of counsel claim. I believe appellate counsel has offered one of the more skillful IAC arguments we have seen in a parental rights case since this Court held that parents were entitled to make such claims in In the Matter of A.S. Appellate counsel has closely reviewed the performance of trial counsel and identified several potential errors. The Court concludes that no prejudice could have arisen from counsel’s action, essentially deciding the case under the “second prong” of the IAC standard, In the Matter of A.S., ¶ 21. This is an appropriate disposition. However, the Appellant makes points about her trial counsel’s performance and the proper remedy which I find to be noteworthy.
¶41 Appellant explains that her trial counsel filed a “Notice of Expert Witness” indicating that Appellant’s former counselor, Sally Jo Hand (Hand), would be called to testify, but then failed to call her as a witness. To illustrate the potential impact of trial counsel’s alleged error in failing to call Hand, Appellant has submitted with her appellate briefing an affidavit from Hand which she describes as an “offer of proof’ about Hand’s testimony. Based on Hand’s affidavit, Appellant argues that Hand would have testified that Appellant was diligently working on and making significant progress in her personal development, parenting skills and relationships, that Appellant was *402 consistent in keeping her appointments, that she was highly engaged, accepting recommendations and implementing them, and that in breaking off her relationship with her boyfriend, she had shown progress in her decision making. Hand would have further testified that termination of Appellant’s parental rights was likely to detrimentally affect the children.
¶42 The State criticizes Appellant’s submission of the affidavit and offer of proof, arguing that it should not be “a means by which appellate counsel can interject extra-record evidence on appeal, including, as here, hearsay. An appeal is necessarily confined to the record below.” (Citation omitted.) This underscores a practical dilemma faced by an appellant’s counsel: How can trial counsel’s failure to introduce evidence supportive of the client’s position be demonstrated on appeal?
¶43 As Appellant explains in her reply brief, she is not, as the State contends, attempting to add additional evidence to the record. Rather, she has made the “offer of proof’ to establish a basis for the remedy she seeks here: a remand for a limited evidentiary hearing regarding her counsel’s performance. As authority, she has cited both our holding in In re K.G.F., 2001 MT 140, ¶ 93 , 306 Mont. 1 , 29 P.3d 485 (“[T]he record before this Court, particularly any evidence of the critical prehearing investigation, is insufficient. Accordingly, this matter is reversed and remanded for a fact finding hearing ....”), and People in Interest of C.H., 166 P.3d 288 , 291 (Colo. App. 2007), which concluded that the mother’s appellate offer of proof had made a prima facie showing of ineffective assistance of counsel and remanded the case for an evidentiary hearing. The Colorado Court noted the problem we face here, that “[t]he chief problem is that the record may not contain sufficient information to enable the appellate court to resolve the parent’s contentions.” People in Interest of C.H., 166 P.3d at 291.
¶44 I believe Appellant has made a viable “first prong” claim and offered a viable remedy, a remand for a limited evidentiary hearing. However, given my agreement with the Court’s conclusion that the lack of prejudice in this case cannot be overcome by additional analysis of trial counsel’s performance, I concur in affirming the District Court.
JUSTICE NELSON joining in the concurring Opinion of JUSTICE RICE.