Nichols v. Nichols, 08-90-00177-CV
| Decision Date | 30 January 1991 |
| Docket Number | No. 08-90-00177-CV,08-90-00177-CV |
| Citation | 803 S.W.2d 484 |
| Parties | Carlene D. NICHOLS, Appellant, v. Scott W. NICHOLS, Appellee. |
| Court | Texas Court of Appeals |
Clinton Cross, El Paso, for appellant.
Terry Pasqualone, Merkins, Hines & Pasqualone, El Paso, for appellee.
Before FULLER, WOODARD and KOEHLER, JJ.
This is an appeal from a default judgment terminating the parent-child relationship between a father and his minor daughter, the mother having failed to answer and no guardian ad litem having been appointed to represent the child. We reverse and remand.
The record on appeal shows that the parties, Carlene D. Nichols, Appellant, and Scott W. Nichols, Appellee, were divorced by a decree signed on May 30, 1986. In that judgment, approved as to both form and substance by the parties, the court found that the parties were the parents of Amanda Rose Nichols, a female child born in Eustis, Florida on July 11, 1982, naming Appellant as managing conservator and Appellee as possessory conservator and setting child support at $300.00 per month. No appeal was taken from the judgment, but the record indicates, vaguely, that the court conducted several hearings on post- decree motions, the exact nature of which is unrevealed.
Appellee filed his petition to terminate the parent-child relationship on November 22, 1989, alleging in effect that he was not the natural father of the child, that another man was believed to be the father and that "[v]oluntary termination of the parent-child relationship between ... [Appellant and the minor child] ... is in the best interest of the child,...." The petition also requested the appointment of a guardian ad litem "to represent the interest of the child." Appellant was personally served with the suit papers on November 30, 1989 while at work.
On January 10, 1990, Appellant having failed to answer the petition, Appellee and his attorney appeared in court for the default hearing on the petition. No attorney ad litem was appointed and the case proceeded to trial. The trial court then heard Appellee's direct testimony, following which the judge conducted a "cross-examination" of Appellee in which, as he later observed, he asked "any number of questions that, in my opinion, would have been asked by an ad litem." Finding that a voluntary termination of the parent-child relationship was in the best interest of the minor, the court signed the default judgment terminating that relationship. Following a hearing, Appellant's Motion for New Trial was denied and it is from such denial that this appeal was taken.
Appellant, in three points, asserts that the court erred in failing to grant a new trial: first, because the appointment of an attorney ad litem to represent the child was mandatory in this case; second, because the Appellant established in the hearing that she was not consciously indifferent and she had a meritorious defense; and third, because there was either no or insufficient clear and convincing evidence to support the termination judgment. Since we have concluded that the failure of the court to appoint an ad litem to represent the interests of the child under the circumstances of this case was fundamental error requiring reversal, we will address only Appellant's first point.
The Family Code of Texas provides that either parent may file a petition requesting termination of the parent-child relationship with his or her child, but the petition is to be granted only if the court finds that the termination is in the best interest of the child. Tex.Fam.Code Ann. § 15.01 (Vernon 1986). As is the case with other sections of the Family Code dealing with minor children, the best interest of the child is the primary consideration. Section 11.10(a) of the Family Code provides:
In any suit in which termination of the parent-child relationship is sought, the court or a master shall appoint a guardian ad litem to represent the interests of the child, unless the child is a petitioner or unless an attorney ad litem has been appointed for the child or unless the court or a master finds that the interests of the child will be represented adequately by a party to the suit and are not adverse to that par...
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In re T.M.R.
...adequately represent the interests of the child because each party was strongly advocating his or her own interests"); Nichols v. Nichols, 803 S.W.2d 484, 485 App.-El Paso 1991, no writ) (finding failure to appoint attorney for child was error where mother did not appear and father "could n......
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In the Interest of J.B, No. 2-08-195-CV (Tex. App. 2/26/2009)
...Nov. 14, 2006, pet. denied) (mem. op.); see also In re T.S.S., 61 S.W.3d 481, 488 (Tex. App.-San Antonio 2001, pet. denied); Nichols v. Nichols, 803 S.W.2d 484, 485 (Tex. App.-El Paso 1991, no writ); Linan v. Linan, 632 S.W.2d 155, 156 (Tex. App.-Corpus Christi 1982, no writ). Therefore, we......
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E.F., In re
...guardian for a child, at least under the circumstances of a particular termination proceeding, was fundamental error. Nichols v. Nichols, 803 S.W.2d 484 (Tex.Ct.App.1991). See also Turner v. Lutz, 654 S.W.2d 57 (Tex.Ct.App.1983) (in termination proceeding, failure to appoint guardian may be......
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In re D.M.O.
...a[n] ... ad litem is not needed when one parent is trying to terminate the other parent's parental rights." Id. See also Nichols v. Nichols, 803 S.W.2d 484, 486 (Tex. App.—El Paso 1991, no writ); Turner, 654 S.W.2d at 59 (explaining "even if this Court had the ability in this case to recogn......