In re D.M.O.
| Decision Date | 21 March 2018 |
| Docket Number | No. 04-17-00290-CV,04-17-00290-CV |
| Parties | In the Interest of D.M.O. |
| Court | Texas Court of Appeals |
From the 45th Judicial District Court, Bexar County, Texas
Honorable Stephani A. Walsh, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice
Appellees Mother and Step-Father filed suit to terminate Appellant Father's parental rights to his child, D.M.O., and for Step-Father to adopt D.M.O. The trial court signed a single order terminating Father's parental rights, granting the adoption, and changing D.M.O.'s name. Father appeals the trial court's order, contending, among other issues, that the trial court erred by failing to appoint an attorney ad litem or amicus attorney for the child. We reverse the trial court's order terminating Father's parental rights and granting Step-Father's adoption and remand the cause to the trial court for a new trial.
Father and Mother were never married, but were in a relationship at the time of D.M.O.'s birth. Father and Mother separated when D.M.O. was one-and-a half years old. At that time, Mother and Father were both serving in the military and stationed near Abilene, Texas. Mother later married Step-Father in 2009. After the marriage, D.M.O. and Appellees moved to South Carolina. It appears Appellees then moved from South Carolina to San Antonio, Texas sometime in 2015. The record indicates that around the same time, Father moved to Georgia.
D.M.O. is currently eleven years old and has been living with Mother and Step-Father since they married. On February 22, 2016, Appellees filed suit to terminate Father's parental rights and for Step-Father to adopt D.M.O. Father answered, entering a general denial.
At the non-jury trial on April 3, 2017, Father appeared without an attorney and participated in the trial pro se.1 Father and Mother were the only witnesses to testify before the trial court. No other witness testified at the trial. At the conclusion of the trial, the trial court signed a single order terminating Father's parental rights and granting Step-Father's adoption of D.M.O. In the order, the trial court made the following findings:
On appeal, Father contends (1) the evidence was legally and factually insufficient to support the trial court's finding that termination of his parental rights was in D.M.O.'s best interest; (2) the trial court erred by failing to admonish Father regarding the perils of self-representation; (3) the trial court abandoned its role as a neutral arbiter; (4) the trial court erred by failing to appoint an attorney ad litem or an amicus attorney to represent the child; (5) the trial court erred by considering an adoption evaluation that failed to comply with statutory requirements; and (6) the trial court did not allow Father to present a defensive case.
Father contends the trial court erred by failing to appoint an attorney ad litem or amicus attorney for the child. See TEX. FAM. CODE ANN. § 107.021(a-1) (West 2014) ().2 Father argues that under the circumstances of this case, the trial court could not have properly found Mother adequately represented the interests of the child.
Father did not object before the trial court regarding its failure to appoint an attorney ad litem or amicus attorney for the child. Our rules of appellate procedure require that, for error to be preserved for appellate review, the complaining party must have made an objection to the trial court and the trial court must have either ruled on the objection or refused to issue a ruling, andthe complaining party objected to the refusal. See TEX. R. APP. P. 33.1. However, several courts have concluded that a trial court's failure to appoint an attorney ad litem or amicus attorney3 for a child in a private termination case may be raised for the first time on appeal. See In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.—Amarillo 2010, no pet.); Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.—Austin 1983, no pet.); Arnold v. Caillier, 628 S.W.2d 468, 469 (Tex. App.—Beaumont 1981, no pet.); see also In re D.W., No. 04-05-00927-CV, 2006 WL 2263907, at *1 (Tex. App.—San Antonio Aug. 9, 2006, no pet.) (Lopez, C.J., dissenting) (dissenting on other grounds, but recognizing that failure to appoint an ad litem for a child may be raised for the first time on appeal); 40A TEX. JUR. 3d Family Law § 1897 .
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, we must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. Given the constitutional interests at stake in termination proceedings, the important role of amicus and ad litem attorneys in termination proceedings, and the mandatory nature of Section 107.021(a-1), we conclude a complaining party may raise a trial court's failure to appoint an attorney ad litem or amicus attorney when required by Section 107.021(a-1) for the first time on appeal. See In re K.M.M., 326 S.W.3d at 715; Turner, 654 S.W.2d at 58.
The Texas Family Code requires that in a private termination suit, the trial court must appoint an amicus attorney or an attorney ad litem to represent the interests of the child "unless the court finds that the interests of the child will be represented adequately by a party to the suit whose interests are not in conflict with the child's interests." TEX. FAM. CODE ANN. § 107.021(a-1). In other words, the statute requires the trial court make an affirmative finding that the record supports the child's interests can be adequately represented by one of the parents and are not in conflict with that parent. Id. Although the statute permits a trial court to proceed without the appointment of an ad litem or amicus attorney if it makes the requisite finding, our sister courts have "recognized that where parents are adversaries in a suit to terminate one parent's rights, the trial court can seldom find that one party adequately represents the interests of the children involved or that their interests are not adverse." In re K.M.M., 326 S.W.3d at 715; see also Chapman v. Chapman, 852 S.W.2d 101, 102 (Tex. App.—Waco 1993, no writ); Barfield v. White, 647 S.W.2d 407, 409 (Tex. App.—Austin 1983, no writ). We review a trial court's finding that the interests of the child will be represented adequately by a party to the suit for abuse of discretion. In re C.A.P., No. 04-12-00553-CV, 2013 WL 749825, at *2 (Tex. App.—San Antonio Feb. 27, 2013, pet denied) (mem. op.).
Several courts have determined that where one parent sued another parent to terminate his or her parental rights to their child, the trial court could not properly find that the child's interests were adequately represented by a party to the suit. See Chapman, 852 S.W.2d at 102; Barfield, 647 S.W.2d at 409; Turner, 654 S.W.2d at 60; In re R.N.G., No. 11-02-00084-CV, 2002 WL 32344622, at *5 (Tex. App.—Eastland Dec. 12, 2002, no pet.) (mem. op., not designated for publication).
Barfield v. White and In re R.N.G. are both factually similar to the present case. See Barfield, 647 S.W.2d at 408; In re R.N.G., 2002 WL 32344622, at *2. In Barfield, a mother sought to terminate the parental rights of the child's father so that her husband, the child's step-father, could adopt the child. Barfield, 647 S.W.2d at 408. The trial court declined to appoint an ad litem to represent the child's interests, finding that the child's interests were adequately represented by the parties. Id. at 409. The Austin Court of Appeals reversed and remanded the cause, concluding that because contested private termination suits where one parent is trying to terminate the other parent's parental rights "by their very nature require the father and mother to litigate their personal interests," the trial court could not have found the child's interests were adequately represented by one of the parties. Id. Similarly, in In re R.N.G., a father and step-mother sought to terminate the mother's parental rights so the step-mother could adopt the children. In re R.N.G., 2002 WL 32344622, at *2. The trial court declined to appoint an ad litem for the children, finding the interests of the children were adequately represented by the father and step-mother. Id. at *4. Citing Barfield, the Eastland Court of Appeals concluded that "[b]ecause [father] and [step-mother] had a personal interest in th[e] case, the trial court should have appointed an ad litem to represent the interests of the children." Id.
In several cases, when the trial court failed to make the...
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