Opinion
05-22-01036-CV
03-31-2023
IN THE INTEREST OF L.L.V., A CHILD
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-56612-2021
Before Justices Nowell, Smith, and Miskel
MEMORANDUM OPINION
EMILY MISKEL JUSTICE
The appellant "Rick" 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.
To protect the minor's identity, we refer to the parties by fictitious names or initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
I. Background
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) ("Terminating parental rights under subsection Q requires that the parent be both incarcerated or confined and unable to care for the child for at least two years from the date the termination petition is filed."). 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, "a party to the suit, has no interest adverse to the child the subject of this suit and would adequately represent the interest of the child. No attorney ad litem or amicus attorney was necessary, and none was appointed."
II. The Appointment of an Amicus Attorney was Mandatory
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.
The Texas Family Code requires that
(a-1) In a suit requesting termination of the parent-child relationship that is not filed by a governmental entity, the court shall, unless the court finds 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, appoint one of the following:
(1) an amicus attorney; or
(2) an attorney ad litem.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) (interpreting 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 was necessary. 2018 WL 1402030, at *1. On appeal, the court held that this finding was insupportable. Id. at *4. It noted that the trial court's finding was undermined by the reality that "Mother and Father were clearly adversaries in the suit to terminate Father's parental rights." Id. It continued, "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." Id. (quoting Barfield, 647 S.W.2d at 409). And because there was a "very limited record" that could have otherwise shored up the finding, the court reversed and remanded for a new trial. See id.
Likewise, in Barfield, the trial court dealt with an older statute that required it to appoint a guardian ad litem unless it found that the interests of the child would be represented adequately by a party to the suit and were not adverse to that party. 647 S.W.2d at 408. The trial court made the finding, but on appeal, the court held that there was no foundation for it: "we cannot accept the trial court's determination that the interests of this five-year-old child were adequately represented when both parties were strongly advocating their own interests." Id. at 409. It noted that private terminations suits are usually "very partisan"-for instance, the petitioner parent there was solely "interested in removing the legal barrier to the adoption of the child by her husband." Id. (quoting Arnold, 628 S.W.2d at 469). And because private terminations implicate "issues of constitutional dimensions," the court held that the finding could not stand. Id.
Finally, the Eastland Court of Appeals arrived at a roughly similar conclusion in In re R.N.G., though it considered the amicus issue as a facet of a best interest determination under the Holley factors. See No. 11-02-00084-CV, 2002 WL 32344622, at *4 (Tex. App.-Eastland Dec. 12, 2002, no pet.) (not designated for publication). "The trial court found that the interests of the children would be adequately represented by Neal and Michelle." Id. Despite this finding, the court reversed the termination: "Because Neal and Michelle had a personal interest in this case, the trial court should have appointed an ad litem to represent the interests of the children." Id.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
This case is similar to D.M.O., Barfield, and, to a degree, R.N.G., and we conclude that this appeal requires the same result. In D.M.O., the trial court's finding was held erroneous because it was supported by only a "very limited record." Here, the trial court's denial of an amicus attorney was not supported by any record evidence. A 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." T.M.R, 2021 WL 4998438, at *3 (emphasis added). The record from the hearing where the father urged his request for an amicus attorney reflects that no evidence was heard to support a finding that Monica was able to adequately represent L.L.V.'s interests without conflict. At the time the court made the decision to deny the appointment of the amicus attorney, there was no evidence of a substantive and probative character to support its decision.
Although the final judgment contains the statutory finding, in this case, the denial of an amicus attorney cannot be retroactively supported by the trial evidence. At trial, Monica advocated for termination in a partisan fashion. During opening argument, she contended that termination served L.L.V.'s best interest for multiple reasons, including that Rick would have "very little involvement with the child" due to his incarceration and that her current husband would make a better parent. In her trial testimony, she further explained that she was pursuing termination because it was in L.L.V.'s best interest "for him to have that father figure in his life, present, to go to games, to go to lunch with him, to just be there for him emotionally, physically, and mentally." Monica described Rick as an absent father even before his incarceration and testified that because Rick went to prison when L.L.V. was a baby, L.L.V. had no memory of him. Ultimately, she did not "want to confuse" L.L.V. as to who his parents were by allowing Rick to retain his constitutional rights as a parent. She further testified that Rick had provided no financial or emotional support to the child. In sum, the trial record contains evidence of exactly the type that other courts have held to be contrary to the statutory finding. Accordingly, the trial court abused its discretion by including the finding in the final judgment.
The explicit purpose of the statute is to ensure that an amicus attorney is present at trial to offer and test evidence of whether a parent adequately represents the child's interests. We are not saying that trial evidence could never support a finding that an amicus attorney or attorney ad litem was not necessary. For example, it might be appropriate to hear that evidence together with the final prove-up of a default judgment, or in cases where a parent is unknown or unlocated. Further, a parent's "failure to raise a timely objection to the trial court's refusal to appoint an ad litem attorney" might "waive[] the issue." In re A.E.J., No. 05-20-00340-CV, 2020 WL 5107293, at *11 (Tex. App.-Dallas Aug. 31, 2020, pet. denied) (mem. op.); see In re L.J.H., No. 05-21-00183-CV, 2021 WL 4260769, at *7 (Tex. App.- Dallas Sept. 20, 2021, no pet.) (mem. op.). But in this contested case, where the father brought the requirement to the court's attention months before trial, the court was required to appoint the amicus attorney at that time or to hear evidence that actually supported the finding required by the Family Code.
III. The Failure to Appoint an Amicus Attorney was Harmful Error
We further conclude that the erroneous denial of an amicus attorney was harmful. The courts that have considered this issue have found the erroneous denial of an amicus to be harmful due to the gravity of a termination proceeding, the fundamental interests involved, and the important role of amicus within such a proceeding. See D.M.O., 2018 WL 1402030, at *4; K.M.M., 326 S.W.3d at 716; Chapman, 852 S.W.2d at 102; Turner v. Lutz, 654 S.W.2d 57, 59-60 (Tex. App.- Austin 1983, no writ); Barfield, 647 S.W.2d at 409; see also Ray, 832 S.W.2d at 436 ("Clearly, if the court had terminated parental rights, the error would have been harmful and would have required a reversal."). We agree. An amicus attorney would have interviewed the parties, investigated the facts of the case, shed additional light on L.L.V.'s best interest, and otherwise shaped the litigation toward a fair and complete resolution. See TEX. FAM. CODE § 107.003(a); D.M.O., 2018 WL 1402030, at *4. Courts have noted that terminations may have far-reaching consequences to a minor and have been concerned that a professional be appointed whose primary obligation is to protect the child's rights being litigated. See Arnold, 628 S.W.2d at 470; see also Turner, 654 S.W.2d at 60; Barfield, 647 S.W.2d at 409.
We sustain Rick's second issue, and we reverse the entire judgment, including the partial summary judgment that merged into the final judgment. See, e.g., Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020) ("When a trial court renders a final judgment, the court's interlocutory orders merge into the judgment and may be challenged by appealing that judgment."). Rick is entitled to a new trial wherein an amicus attorney may fulfill its duty to fully "participate in the conduct of the litigation to the same extent as an attorney for a party." See TEX. FAM. CODE § 107.003(a)(1)(F). We need not consider Rick's remaining issues, which could afford him no greater relief. See TEX. R. APP. P. 47.1.
IV. Conclusion
We reverse the judgment terminating Rick's parental rights. We also therefore set aside the trial court's subsequent order granting an adoption. See Holick v. Smith, 685 S.W.2d 18, 21 (Tex. 1985); In re T.S.W., No. 11-21-00231-CV, 2022 WL 969526, at *5 (Tex. App.-Eastland Mar. 31, 2022, no pet.) (mem. op.). We remand for further proceedings consistent with this opinion.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for a new trial.
It is ORDERED that appellant recover his costs of this appeal from appellee.
Judgment entered this 31st day of March 2023.