In re L.L.V.
| Decision Date | 31 March 2023 |
| Docket Number | 05-22-01036-CV |
| Parties | IN THE INTEREST OF L.L.V., A CHILD |
| Court | Texas Court of Appeals |
On Appeal from the 416th Judicial District Court Collin County Texas Trial Court Cause No. 416-56612-2021
Before Justices Nowell, Smith, and Miskel
The appellant "Rick"[1] appeals pro se from the termination of his parental rights to his child L.L.V. In one of his issues Rick argues that the trial court reversibly erred when it denied his motion to appoint an amicus attorney. Because we agree, we reverse and remand.
Rick and "Monica" married in 2014, and they welcomed their first child L.L.V. in early 2017. Later that same year while L.L.V. was still an infant, Rick participated in a murder and was arrested. When L.L.V. was three years old, Rick was convicted of capital murder and sentenced to life without parole. See TEX. PENAL CODE § 19.03(a)(3).
After Rick's arrest, Monica initially supported Rick and helped him maintain a relationship with L.L.V. However, as the years wore on, Monica began a relationship with another man and sought to foster a bond between her new significant other and L.L.V. At the same time, she began to curtail Rick's and his parents' access to L.L.V. In October 2020, several months after Rick's conviction, Monica petitioned for divorce. According to Rick, she assured him that she was not attempting to terminate his parental rights. Rick did not contest the divorce, which was granted in early 2021. Later in 2021, Monica married her new significant other.
In November 2021, when L.L.V. was almost 5 years old, Monica filed the instant lawsuit to terminate Rick's parental rights. As a ground for termination, Monica alleged subsection Q of the termination statute, which applies where a parent has knowingly engaged in criminal conduct that results in conviction, confinement, and inability to care for the child for not less than two years from the date of the petition. TEX. FAM. CODE § 161.001(b)(1)(Q). Monica's petition included a request for the court to appoint an amicus attorney. Rick, acting pro se, defended the suit with the assistance of a "jailhouse lawyer."
Monica moved for traditional summary judgment on both the statutory ground and that termination was in the best interest of the child, though she attached only two items of evidence: the judgment convicting Rick of capital murder and this court's affirmance of the conviction. Rick responded with several forms of evidence, asserting that, despite the conviction, he and his family had the ability to provide care for the child. See, e.g., In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006) (per curiam) (). Monica did not provide any summary judgment evidence directly responsive to the inability-to-care element of the ground for termination. The trial court granted partial summary judgment as to the elements of the statutory Q ground-that Rick had knowingly engaged in criminal conduct that resulted in conviction and confinement, and also that he had the inability to care for the child-but it denied summary judgment as to whether termination was in the best interest of the child, reserving that issue for a jury trial.
Rick filed several motions, including a motion for the appointment of an amicus attorney. He urged his request for an amicus attorney at a hearing two months before trial. Without hearing evidence, the court denied the appointment of an amicus attorney, stating that the appointment of an amicus attorney was not appropriate for a termination case.
After hearing the evidence at trial, the jury determined that terminating Rick's parental rights was in L.L.V.'s best interest. Accordingly, the trial court rendered a final judgment terminating Rick's rights. The final Order of Termination includes a finding that Monica,
Rick briefed six issues on appeal. Because it is dispositive, we begin with Rick's second issue, in which he challenges the failure of the court to appoint an amicus attorney. Rick argues that the trial court erred by denying the appointment of an amicus attorney, because the trial court did not make and could not have made the required statutory finding that Monica adequately represented L.L.V.'s interests without conflict. We agree.
We review the trial court's determination for an abuse of discretion. In re T.M.R., No. 13-21-00144-CV, 2021 WL 4998438, at *3 (Tex. App.-Corpus Christi-Edinburg Oct. 28, 2021, no pet.) (mem. op.) (citing In re B.L.D., 113 S.W.3d 340, 347 (Tex. 2003)). To demonstrate an abuse of discretion, the appellant must show that the trial court acted in an arbitrary or unreasonable manner, without reference to guiding principles of law. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The trial court does not abuse its discretion for want of evidence "if there is some evidence of a substantive and probative character to support its decision." Id.
TEX. FAM. CODE § 107.021(a-1) (emphasis added). "By its plain and common meaning, 'shall' denotes mandatory action." Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 131 (Tex. 2018) (citing TEX. GOV'T CODE § 311.016(2)). Therefore, "the appointment of either an amicus attorney or attorney ad litem [is] mandatory" when requested, in the absence of evidence and a finding that the other parent would adequately represent the child's interests without conflict. In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.-Amarillo 2010, no pet.); see also Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.-Waco 1992, no writ) ( a former provision containing similar language and collecting cases to the same effect).
Rick's motion cited Texas Family Code section 107.021(a-1), alleged that the mother and stepfather had conflicting interests, and requested a hearing. At a hearing two months before trial, the father urged his motion and requested that the court appoint an amicus attorney. The court summarily denied the appointment of an amicus attorney without hearing any evidence, including evidence that would support the finding required by (a-1). Based on our review of the record, it appears that, at the time the appointment of the amicus attorney was requested and denied, the trial court had never heard any fact evidence that the interests of L.L.V. would be adequately represented by Monica, and that Monica's interests were not in conflict with L.L.V.'s interests.
A court cannot decline to appoint an amicus attorney without making a finding 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 § 107.021(a-1). As other courts have observed, due to the nature of contested private proceedings for the termination of parental rights, such a finding would be unusual:
We think it would be a rare situation where the trial court can properly find that an attorney or guardian ad litem is not needed when one parent is trying to terminate the other parent's parental rights. These cases by their very nature require the father and mother to litigate their personal interests. There is no party in this type of litigation whose primary duty is to protect the child's interests.
Barfield v. White, 647 S.W.2d 407, 409 (Tex. App.-Austin 1983, no writ); accord In re D.M.O., No. 04-17-00290-CV, 2018 WL 1402030, at *3-4 (Tex. App.-San Antonio Mar. 21, 2018, no pet.) (mem. op.); K.M.M., 326 S.W.3d at 715; Chapman v. Chapman, 852 S.W.2d 101, 102 (Tex. App.-Waco 1993, no writ). Concluding that the interests of the child had not been adequately represented by a party to the suit, the court in Arnold v. Caillier observed that "[t]he parties were, as is customary in such litigation, very partisan and the mother was interested in removing the legal barrier to the adoption of the child by her husband." 628 S.W.2d 468, 469 (Tex. App.-Beaumont 1981, no writ). Concerned that "there was no one present whose primary obligation was to protect the child's rights then being litigated," that court reversed for the trial court's failure to comply with the mandatory provisions of the statute: failing to appoint a guardian ad litem and failing to make a separate and independent finding that the child's rights were represented adequately by a party to the suit. Id. at 470.
In other cases, the trial court has made the required finding but the failure to appoint an attorney ad litem or amicus attorney has nonetheless been reversed due to the lack of a factual foundation for the finding. In D.M.O., the mother initiated a private termination suit against a pro se father, and the trial court found that the mother had no interest adverse to the child and would adequately represent the child's interests, such that no attorney ad litem or amicus attorney...
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