Summary
holding mother lacked standing to raise complaint concerning actions of children's attorney ad litem.
Summary of this case from S.C. v. Tex. Dep't of Family & Protective Servs.Opinion
NO. 09-11-00316-CV
01-12-2012
IN THE INTEREST OF G.F. AND A.P.F.
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 10-07-07649 CV
MEMORANDUM OPINION
A.N. appeals the termination of her parental rights to the minor children G.F. and A.P.F. A.N. raises three issues concerning the representation provided by the attorney ad litem for the children. We affirm the trial court's judgment.
In her first issue, A.N. argues that, as the children's mother, she has standing under the doctrine of virtual representation to assert a claim of ineffective assistance of counsel against the attorney ad litem. Specifically, A.N. argues that the attorney ad litem failed to advocate for the children's desire for reunification, and instead advocated termination. In her second issue, A.N. contends that the attorney ad litem provided ineffective assistance because she improperly took on a dual role as both attorney ad litem and guardian ad litem. In her third issue, A.N. asserts that the trial court abused its discretion by soliciting the attorney ad litem to assume the role of guardian ad litem, "which palpably created a conflict of interest for the attorney ad litem, by soliciting her to opine about the best interests of the [c]hildren, and not to advocate for the [c]hildren's desires." We address A.N.'s issues together.
A party may not complain of errors that do not injuriously affect her or which only affect the rights of others. In the Interest of T.N. and M.N., 142 S.W.3d 522, 524 (Tex. App.—Fort Worth 2004, no pet.). An exception exists for the doctrine of virtual representation, which requires, among other things, that the appellant and the children have identical interests. Id. The record does indicate that the children desired reunification with A.N., but the record does not demonstrate that A.N. and the children have identical interests. Rather, the record demonstrates, and the trial court found, that A.N., who has a history of drug abuse, permitted the children to remain in conditions or surroundings which endangered their physical or emotional well-being, and that A.N. engaged in conduct or knowingly placed the children with persons engaged in conduct that endangered the children's physical or emotional well-being. A.N. does not challenge the sufficiency of the evidence supporting the trial court's findings regarding endangerment or best interest.
A.N. does not have standing on appeal to complain on the children's behalf about the performance of the attorney ad litem. See id. When the case went to trial, the Department of Family and Protective Services ("CPS") had temporary managing conservatorship of the children, which gave CPS the right to represent the children in a legal action and to make other decisions of substantial legal significance concerning the children. Tex. Fam. Code Ann. § 153.371(8) (West 2008). In addition, A.N. lacks standing to complain on her own behalf concerning the attorney ad litem. See Interest of T.N. and M.N., 142 S.W.3d at 524-25. Accordingly, we overrule issues one and two.
We turn now to A.N.'s third issue, in which she contends that the trial court abused its discretion by soliciting the attorney ad litem's opinion, thereby forcing the attorney ad litem to act as both attorney ad litem and guardian ad litem. To the extent that A.N.'s complaint concerns an alleged conflict of interest or deficient performance on the part of the ad litem, for the reasons stated above, A.N. lacks standing to raise the issue on appeal. In addition, to the extent that A.N.'s complaint concerns the trial court's solicitation of the ad litem's recommendation, the record reflects that A.N. did not object when the trial court sought the attorney ad litem's recommendation. A.N. did not raise the issue until she filed a motion for new trial. Therefore, A.N. has failed to preserve the issue for our review. See Tex. R. App. P. 33.1(a). We overrule issue three and affirm the trial court's judgment.
AFFIRMED.
___________
STEVE McKEITHEN
Chief Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.