Interest of M.D.S.

• Citation: 1 S.W.3d 190
• Parties: (Tex.App.-Amarillo 1999) IN THE INTEREST OF M.D.S., A CHILD NO. 07-98-0149-CV
• Decision Date: 29 July 1999
• Court: Texas Court of Appeals

Page 190

1 S.W.3d 190 (Tex.App.-Amarillo 1999)

IN THE INTEREST OF M.D.S., A CHILD

NO. 07-98-0149-CV

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

JULY 29, 1999

PANEL C, FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY; NO. 21,306, HONORABLE TOM NEELY, JUDGE

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before QUINN and REAVIS and JOHNSON, JJ.

Phil Johnson, Justice

David Perez, Candace Seedig, and Connie Samples, appellants, appeal from two orders in a suit affecting the parent-child relationship. M.D.S. is the child who is the subject of the suit. The first order terminated the parental rights of Seedig pursuant to a voluntary affidavit of relinquishment. The second order granted an involuntary termination of the parental rights of Perez, denied grandparent access to Samples, and granted an adoption of M.D.S. to Norma Jan and W. David Worrall, appellees. Appellants assert that (1) the trial court erred in failing to appoint a guardian ad litem to represent the interests of the child; (2) the court erred in finding Perez to be the presumed father of the child; (3) there was no evidence and insufficient evidence to support a finding that Perez committed any of the acts set forth in section 161.001(1) of the Texas Family Code; (4) there was no evidence and insufficient evidence to support a finding that termination of the parent-child relationship between Perez and the child was in the best interest of the child; (5) the trial court abused its discretion in denying Samples grandparent access to the child; (6) the trial court erred in allowing opinion testimony of Greg Tyra regarding the issue of grandparent access; and (7) the trial court erred in allowing the testimony of Dr. Robert Bruce Wurtsbaugh without the witness being properly qualified as an expert witness. We affirm.

FACTUAL BACKGROUND

M.D.S., a male child (the child) was born on July 24, 1996, to Candace Seedig. On that date, Seedig was 17 years old. Norma Jan Worrall is the biological mother of Seedig, and thus the maternal grandmother of M.D.S. W. David Worrall is Jan's husband and Seedig's step-father. Connie Samples is the biological mother of Perez and the paternal grandmother of M.D.S. Perez and Seedig were not married at any time prior to, during, or after the conception and birth of M.D.S. M.D.S. was born in the Gladney Home in Fort Worth, Texas. The child stayed in the Gladney Home until he was seven weeks old. He then went to live in the home of the Worralls. The child lived continuously with the Worralls after he left the Gladney Home.

On September 5, 1996, Perez signed a statement of paternity acknowledging that he is the biological father of the child. On December 4, 1996, Jan Worrall filed an original petition in a suit affecting the parent-child relationship. Through a series of amended petitions, Jan Worrall ultimately sought the voluntary termination of Seedig's parental rights to M.D.S., involuntary termination of Perez's rights, and an adoption of M.D.S. David Worrall joined in the petition for adoption. Samples filed a petition in intervention seeking to be appointed as a joint possessory conservator of the child. Seedig eventually executed a mother's relinquishment of parental rights and affidavit of status. After a hearing, the trial court rendered an order terminating the parental rights of Seedig on August 27, 1997.

On November 25, 1997, a second hearing was held. Following the hearing the trial court terminated the parental rights of Perez, denied Sample's request for grandparent access, and granted adoption to the Worralls. The trial court signed an order reflecting these decisions on December 9, 1997. Pursuant to various post trial motions, the trial court signed a modified and reformed judgment on January 7, 1998. Included in the modified judgment were findings that Jan Worrall did not have an adverse interest to the child, she would adequately represent the interests of the child, and no attorney ad litem or guardian ad litem for the child was necessary and none was appointed. The court also filed findings of fact and conclusions of law. Among its findings of fact and conclusions of law were findings and conclusions that no guardian ad litem was necessary and none was appointed, that the interests of the child had been adequately represented throughout the proceedings, and that Jan Worrall represented the best interests of the child.

ANALYSIS OF ISSUES PRESENTED

By their first issue, appellants assert that the trial court erred in failing to appoint an ad litem to represent the interests of the child. They contend that no hearing was ever held and that no evidence was ever presented on this matter prior to or during the final adversary hearing for termination of the parental rights of Seedig and Perez. Appellants further contend that the trial court's belated finding that Jan Worrall adequately represented the child's interest does not follow the procedure required by section 107.001 of the Texas Family Code. We disagree.

Section 107.001(a) of the Texas Family Code provides:

In a suit in which the termination of the parent-child relationship is requested, the court or an associate judge shall appoint a guardian ad litem to represent the interests of the child immediately after the filing of the petition but before the full adversary hearing to ensure adequate representation of the child, unless:

(1) the child is a petitioner;

(2) an attorney ad litem has been appointed for the child; or

(3) the court or an associate judge finds that the interests of the child will be represented adequately by a party to the suit and are not adverse to that party (emphasis added).¹

The provisions of section 107.001(a) are mandatory. Barfield v. White, 647 S.W.2d 407, 408 (Tex.App.--Austin 1983, no writ). A trial court's failure to comply with section 107.001(a) is reversible error and cannot be treated as harmless because of the serious nature of termination proceedings. Turner v. Lutz, 654 S.W.2d 57, 59 (Tex.App.--Austin 1983, no writ).

M.D.S. was not a petitioner and no guardian ad litem or attorney ad litem was appointed to represent the child. However, the trial court specifically found that the best interests of the child were adequately represented by Jan Worrall, a party to the suit, and that her interests were not adverse to those of the child. While these findings were not in the judgment signed on December 9, 1997, they were included in the final judgment signed on January 7, 1998. Additionally, the court's findings of fact and conclusions of law contained findings and conclusions that the best interests of the child were adequately represented by Jan Worrall and that no guardian ad litem was necessary and, therefore, none was appointed. These findings have not been challenged on appeal.

Because of the findings of the trial court, many of the cases relied on by appellants are distinguishable from the matter before us. In the cited cases, appellate courts reversed where the trial court terminated a parent's rights without appointing an ad litem and without making the finding that an ad litem was unnecessary. See Arnold v. Callier, 628 S.W.2d 468, 470 (Tex.App.--Beaumont 1981, no writ) (trial court did not appoint ad litem nor make separate and independent finding that the child's rights were represented adequately by a party to the suit); Barfield, 647 S.W.2d at 408-09 (trial court's finding was inadequate); Turner, 654 S.W.2d at 58-59 (no express finding related to the adequacy of child's representation); Nichols v. Nichols, 803 S.W.2d 484, 485 (Tex.App.--El Paso 1991, no writ) (no finding and no ad litem appointed); Chapman v. Chapman, 852 S.W.2d 101, 102 (Tex.App.--Waco 1993, no writ) (trial court neither appointed ad litem nor found that the interests of the child would be represented adequately by a party to the suit and were not adverse to that party).²

In the instant case, the court's final judgment signed on January 7, 1998, contained such a finding. Additionally, in its findings of fact the court found that the best interests of the child were adequately represented and that there was no necessity for appointment of a guardian ad litem. The statute does not set any time requirement for entry of a written order confirming a finding that a party without interests adverse to the child will adequately represent the interests of the child. Although the judgment, findings of fact and conclusions of law were signed and filed subsequent to the hearings to terminate the parental rights of Seeding and Perez, neither the judgment nor the findings of fact show that the finding was made after the hearings, as appellants would have us assume. In the absence of a record showing that the trial court did not timely make its findings, we will not presume that the trial court failed to comply with the statutory mandate to make his finding prior to any full adversary hearing. We conclude that in the absence of proof or a record specifying otherwise, when the trial court's judgment or its findings of fact in support of the judgment contain the finding that no guardian ad litem or attorney ad litem was necessary because a party to the suit adequately represented the interests of the child and their interests were not adverse, the trial court complied with the mandatory provisions of section 107.001(a). We overrule appellants' first issue.

By their second issue, appellants contend that the trial court erred in finding Perez to be the presumed father of the child.³ Appellees concede that the trial court erroneously found and concluded that Perez was the presumed father of M.D.S. Appellees assert, however, that the error does not amount to reversible error. We agree with the contention of appellants, but conclude that the error is not reversible.

A man is presumed to be the biological father of a child under certain circumstances set out in section 151.002 of the Texas Family Code....