In re Interest of D.W.G.K., 06-17-00124-CV
| Decision Date | 06 August 2018 |
| Docket Number | No. 06-17-00124-CV,06-17-00124-CV |
| Parties | IN the INTEREST OF D.W.G.K. and S.F.R.K., Minor Children |
| Court | Texas Court of Appeals |
Charity K. Borserine, Madeline C. Pinckert, Pfister, Borserine & Associates, 6814 Lebanon Rd., Ste. 101, Frisco, TX 75034, for appellant, Mother of Children.
Steven R. Miears, Attorney at Law, 206 East College, Ste. 200, Grapevine, TX 76051, for appellant, Father of Children.
Michael D. Becker, Office of General Counsel, TDFPS MC: Y-956, 2401 Ridgepoint Dr., Bldg. H-2, Austin, TX 78754, for appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
Based on an intake received by the of Texas Department of Family and Protective Services (the Department) of possible methamphetamine use by Mother and Father, a lack of utilities in the home, the home's allegedly filthy condition, and D.W.G.K.'s repeated absences from school, the Department instituted these proceedings, ultimately leading to a petition to terminate Mother's and Father's parental rights. After a jury trial, the trial court terminated Mother's parental rights pursuant to grounds (D), (E), (J), (N), (O), and (P) of Section 161.001 the Texas Family Code. The trial court also terminated Father's parental rights pursuant to grounds (D), (E), (F), (J), (N), (O), and (P) of Section 161.001 of the Texas Family Code. The trial court found that termination was in the children's best interests as to both parents. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (F), (J), (N), (O), (P), (b)(2) (West Supp. 2017). Neither parent challenged the sufficiency of the evidence supporting these findings.
In this accelerated appeal, Father complains that D.W.G.K. received ineffective assistance of counsel, requiring a new trial at which the children should be appointed separate counsel. Because Father lacks standing to assert an ineffective assistance of counsel claim on behalf of D.W.G.K., we affirm the trial court's judgment as to Father. In her sole point of error, Mother claims that the trial court's refusal to strike the Department's witnesses resulted in a denial of due process of law, requiring reversal of the termination order.1 Because we find that the Department failed to establish that Mother was not unfairly surprised or unfairly prejudiced by its failure to answer Mother's discovery requests before trial, we find that the trial court erred in overruling Mother's motion to strike the Department's witnesses. See TEX. R. CIV. P. 193.6. However, because we find that the testimony of the untimely disclosed witnesses is cumulative of the testimony of witnesses to whom Mother makes no objection, we find that the trial court's error was harmless. Accordingly, we affirm the trial court's judgment as to Mother as well.
In his sole point of error, Father contends that D.W.G.K. received ineffective assistance of counsel because his attorney ad litem did not represent D.W.G.K.'s "expressed objectives of representation." TEX. FAM. CODE ANN. § 107.004(a)(2) (West Supp. 2017).2 D.W.G.K., who was eight years old at the time of trial, responded to questions from Father's attorney:
Prior to closing arguments, the children's attorney ad litem informed the court that she would need to re-examine her position of alignment with the Department, given D.W.G.K.'s testimony. The following morning, the children's attorney ad litem determined to continue to advocate for termination based on "all of [her] interactions and conversations with [her] clients throughout th[e] case, as well [as] D.K.'s testimony that he said he wanted to live where he [was] permanently." Further, counsel took into consideration that only the question of termination was before the court. Father claims this decision rendered counsel's representation of the children ineffective.
The Department contends that, under the doctrine of virtual representation, Father does not have standing to raise an ineffective assistance of counsel claim on behalf of D.W.G.K. We agree. Standing is implicit in the concept of subject-matter jurisdiction, which is never presumed and cannot be waived.
Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 444–45 (Tex. 1993). A party "may not complain of errors that do not injuriously affect it or that merely affect the rights of others." Torrington Co. v. Stutzman , 46 S.W.3d 829, 843 (Tex. 2000). "Courts, including this Court, have applied this rule in parental-[rights] termination cases and have held that a parent does not have standing to complain about alleged deficiencies in the representation of his children or his spouse." J.R. v. Tex. Dep't of Family & Protective Servs. , No. 03-15-00108-CV, 2015 WL 4603943, at *3 (Tex. App.—Austin July 30, 2015, pet. denied) (mem. op.); see, e.g. , A.E. v. Tex. Dep't of Family & Protective Servs. , No. 03-14-00414-CV, 2014 WL 7458731, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.) (father lacked standing to complain about trial court's decision to proceed when children's attorney ad litem was not present at beginning of hearing); S.M.M. v. Tex. Dep't of Family & Protective Servs. , No. 03-12-00585-CV, 2013 WL 812088, at *3 n.5 (Tex. App.—Austin Feb. 26, 2013, no pet.) (mem. op.) (mother in parental-rights termination case lacked standing to complain about trial court's failure to appoint counsel to father); In re T.N. , 142 S.W.3d 522, 524 (Tex. App.—Fort Worth 2004, no pet.) (mother lacked standing to complain about children's attorney's performance on children's behalf or on her own behalf).
We addressed this issue most recently in In re J.E.G. , No. 06-17-00064-CV, 2017 WL 4448547, at *5 (Tex. App.—Texarkana Oct. 6, 2017, pet. denied) (mem. op.). There, after her parental rights were terminated, Nancy appealed from the termination order claiming that the children's attorney ad litem failed to provide effective assistance of counsel. Id. at *2. Nancy claimed that, pursuant to the doctrine of virtual representation, she had standing to complain of the children's attorney ad litem's alleged ineffectiveness because the ad litem's "representations at trial were more aligned with the Department's position favoring termination of her parental rights, rather than with the Children's desires to be reunited with her." Id. at *5.
We determined that the record failed to support Nancy's claim that the children desired to be reunited with her and that, even if it did, "there exist[ed] overwhelming evidence that Nancy and the Children d[id] not have identical interests." Id. We recognized that the "[c]hildren's only interest [was] in finding a safe, loving, and permanent family situation in which to live." Id. Nancy's interest, however, was to maintain parental rights and to be reunited with the children, despite the existence of evidence demonstrating she subjected the children to endangering conduct and an endangering environment. Id. Consequently, Nancy's interests were not aligned with those of the children, and she therefore lacked "standing pursuant to the doctrine of virtual representation to proceed with her ineffective assistance of counsel claim against the Children's attorney ad litem." Id. at *6 ; see In re B.M. , No. 13-17-00467-CV, 2017 WL 5953098, at *9 (Tex. App.—Corpus Christi Nov. 30, 2017, pet. denied) (mem. op.) (Mother's interest not aligned with those of children, whose interest was to find safe, loving, and permanent family).
Here, we likewise conclude that Father does not have standing under the doctrine of virtual representation to claim D.W.G.K. did not receive effective assistance of counsel. This holding is consistent with that of the majority of our sister courts who have addressed this issue. T.N. , 142 S.W.3d at 524 ; J.R. , 2015 WL 4603943, at *3 ; In re S.I.-M.G. , No. 02-12-00141-CV, 2012 WL 5512372, at *14 (Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (mem. op.); In re G.F. , No. 09-11-00316-CV, 2012 WL 112549, at *1 (Tex. App.—Beaumont Jan. 12, 2012, no pet.) (mem. op.). Even in cases in which the child desired reunification, of which there is scant or no evidence here, courts have held that parents lack standing to complain on appeal about the effectiveness of the child's attorney ad litem. B.M. , 2017 WL 5953098, at *8–9 ; J.R. , 2015 WL 4603943, at *3 ; S.I.-M.G. , 2012 WL 5512372, at *14 ; G.F. , 2012 WL 112549, at *1.
Father and D.W.G.K. do not have identical interests. D.W.G.K.'s interest was to find a "safe, loving, and permanent family situation in which to live." J.E.G. , 2017 WL 4448547, at *5. Father's interest, however, was to prevent termination of the parent-child relationship, despite the jury's finding that termination of Father's rights was supported by clear and convincing evidence under...
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