in the Interest of A.M., L.M., K.M., and L.M-L., Children ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00391-CV
___________________________
IN THE INTEREST OF A.M., L.M., K.M., AND L.M-L., CHILDREN
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-515226-12
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
The trial court signed a final order appointing the Department of Family and
Protective Services as permanent managing conservator of T.M.’s four children—
A.M. (Anne), L.M. (Lance), K.M. (Kyle), and L.M-L. (Luke) 1—and designating T.M.
(Mother) as her sons’ possessory conservator. On the Department’s modification
motion, the trial court removed Mother as the children’s possessory conservator. 2
Mother appeals from that order, arguing in one issue that the trial court abused its
discretion by failing to bifurcate the attorney ad litem and guardian ad litem roles after
JaNeen Hopkins—the children’s attorney and guardian ad litem—allegedly developed
a conflict of interest during the modification proceedings. We will affirm.
I. Background
On March 6, 2020, the Department sued for conservatorship of the children
and to terminate Mother’s parent–child relationship with them.3 That same day, the
trial court signed an order for protection appointing the Department as the children’s
temporary sole managing conservator and appointing Hopkins as the children’s
attorney ad litem and guardian ad litem.
1
We use aliases to identify the parties. See Tex. Fam. Code Ann. § 109.002(d);
Tex. R. App. P. 9.8(b)(2).
2
The final order named Mother as the three boys’ possessory conservator but
did not name a possessory conservator for Anne. The modification order, however,
removed Mother as all four children’s possessory conservator.
3
The children’s father is deceased.
2
On June 6, 2022, the trial court signed a final order based on a mediated
settlement agreement (MSA) that the parties had signed after mediating the case in
late May 2022.4 In its final order, the trial court appointed the Department as the
children’s permanent managing conservator and Mother as the possessory
conservator of Lance, Kyle, and Luke. The trial court ordered that, subject to certain
conditions, Lance would return to Mother’s home that same day, Kyle on June 27,
2022, and Luke on July 18, 2022,5 and ordered that Anne and Mother could mutually
agree on visitation dates and times.6 The trial court further ordered that Hopkins
would remain appointed as the children’s attorney and guardian ad litem.
4
On January 13, 2021, the trial court timely signed an order retaining the case
on its docket, extending the case’s dismissal date to September 3, 2021, and setting the
case for trial on May 5, 2021. See Tex. Fam. Code Ann. § 263.401(a), (b). On
September 2, 2021, the trial court signed an order retaining the case on its docket until
February 1, 2022, pursuant to the Texas Supreme Court’s Fortieth Emergency Order
Regarding the COVD-19 State of Disaster, which provided that “for any [parental-
rights termination] proceeding that, on May 26, 2021, had been previously retained on
the court’s docket pursuant only to [Family Code] Section 263.401(b) or (b-1), the
court may extend the dismissal date for a stated period ending no later than February
1, 2022.” See Fortieth Emergency Order Regarding the COVID-19 State of Disaster, Misc.
Docket No. 21-9079, ¶4.b (Tex. July 19, 2021). The trial court thus extended the
dismissal date to February 1, 2022, and set the case for trial on December 10, 2021.
See id. The trial commenced on December 10, 2021, and continued on January 21,
2022, and June 6, 2022.
5
At the time of the final order, then-13-year-old Lance and then-11-year-old
Kyle were in residential treatment facilities and then-nine-year-old Luke was living
with a foster placement.
6
Then-15-year-old Anne was living in a foster home.
3
Lance returned to Mother’s home on June 6, 2022, the final order’s signing
date. About a week later, the Department received a report that Mother had pointed a
loaded gun at her 17-year-old son George 7 and that George had then pointed the
loaded gun at Lance. This prompted the Department to file a petition to modify the
final order on June 16, 2022. The Department asked the trial court to remove Mother
as the children’s possessory conservator based on a material and substantial change in
the children’s circumstances. The trial court immediately signed a temporary ex parte
order removing Mother as possessory conservator, and Lance was removed from her
care. Soon thereafter, the Department moved for a new trial in the original
conservatorship proceeding based on newly discovered evidence, arguing that had it
been aware of that evidence, it would not have entered into the MSA.
On July 11, 2022, the trial court held an evidentiary hearing on the
Department’s new-trial motion and its modification request. During the hearing,
Hopkins stated that Lance did not want to “stay with” Mother “at the moment.” The
trial court then adjourned the hearing to interview Anne, Lance, and George in
chambers. Anne told the trial judge during her interview that only Lance wanted to
return home to Mother, and Hopkins verified, “[Lance] is the only one that wants to
go home.” Lance confirmed during his interview that he wanted to return to Mother.
7
George had intervened in the case in August 2021, but the trial court
dismissed his intervention on his motion before signing the final order.
4
The trial court then resumed the hearing. At the hearing’s conclusion, the trial
court deferred ruling on the new trial and ordered that until then, the final order
remained in place. But the trial court did not rule on the modification petition. The
Department immediately returned Lance to Mother and returned Kyle and Luke to
her a week later.
On August 31, 2022, the Department again moved to modify possessory
conservatorship, asking the trial court to remove Mother as possessory conservator
based on additional safety concerns in Mother’s home since the gun-pointing incident
and on Mother’s unwillingness to cooperate with the Department. That same day, the
trial court signed a new temporary order removing Mother as possessory conservator
pending a hearing on the modification motion, which the trial court set for September
16, 2022. The boys were immediately removed from Mother’s care.
On September 12, 2022, Mother moved to appoint a new guardian ad litem for
the children. Mother asserted that “[t]he objectives expressed by the children during
in-chambers interviews with the [c]ourt are in direct conflict with the best interest
position presented by [Hopkins] in open court.” Based on these alleged opposing
positions, Mother argued that a conflict existed between representing the children’s
desires and representing the children’s best interest and that Hopkins was thus
“unable to continue to serve ethically in the dual [attorney and guardian ad litem]
role.” Mother asked the trial court to bifurcate the roles and to appoint a volunteer
5
advocate, a professional, or competent adult as the children’s guardian ad litem while
keeping Hopkins as the children’s attorney ad litem.8
On September 16, 2022, the trial court held an evidentiary hearing on the
Department’s modification motion.9 The trial court found that there had been a
material and substantial change in the children’s circumstances and that Mother’s
continued appointment as the children’s possessory conservator was not in their best
interest. The trial court signed an order granting the Department’s motion, removing
Mother as the children’s possessory conservator, and ordering that Mother have
reasonable visitation and access to the children, “as agreed upon and arranged, and
supervised by the Managing Conservator, or its designee.” Mother timely appealed
from that order on October 6, 2022. 10
II. Discussion
Mother’s only issue challenges the trial court’s failure to bifurcate the attorney
ad litem and guardian ad litem roles and to appoint a separate guardian ad litem for
the children after Hopkins allegedly developed a conflict of interest in July 2022.
8
Although the certificate of conference on Mother’s motion expressly stated
that the Department and Hopkins were unopposed “to the motion,” Hopkins filed a
response opposing Mother’s request to bifurcate the ad litem roles.
9
With the parties’ agreement, the trial court took judicial notice of the evidence
presented at the July 11 hearing.
A few days earlier, the trial court had signed an order denying the
10
Department’s new-trial motion in the original conservatorship proceeding.
6
According to Mother, Hopkins misled the trial court during the July 11, 2022 hearing
by stating that Lance did not want to stay with Mother because, later that day, Lance
told the trial judge in chambers that he wanted to live with his Mother. Mother claims
that, at this point, Hopkins “should have immediately acknowledged her conflict of
interest,” corrected her earlier statement, and advised the trial court “of her surprise at
[Lance’s] position . . . and immediately ask[ed] for a guardian ad litem to be
appointed.”
But Hopkins did none of those things, and the evidentiary hearing resumed
after the in-chambers interviews were completed. Two months later, Mother moved
for the appointment of a new guardian ad litem. Four days after that, the trial court
held an evidentiary hearing on the Department’s modification motion and removed
Mother as possessory conservator. According to Mother, Hopkins’s conflict
compromised Hopkins’s ability to properly represent the children and left them—
especially Lance—without adequate representation during that time.
Mother, however, lacks standing to challenge the trial court’s failure to appoint
a separate guardian ad litem to represent the children. A party may not complain of
errors that do not injuriously affect her or which affect only the rights of others. In re
S.I.-M.G., No. 02-12-00141-CV, 2012 WL 5512372, at *14 (Tex. App.—Fort Worth
Nov. 15, 2012, no pet.) (mem. op.); In re T.N., 142 S.W.3d 522, 524 (Tex. App.—Fort
Worth 2004, no pet.). An exception exists when the appellant is deemed to be a party
under the doctrine of virtual representation, which requires in this case—among other
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elements—that Mother and the children have identical interests. See S.I.-M.G.,
2012 WL 5512372, at *14; T.N., 142 S.W.3d at 524.
Here, Mother does not assert that she and the children have identical interests.
Although the record indicates that Lance wanted to be reunified with Mother and that
Mother presumably wanted the children returned to her, a mutual desire for
reunification is insufficient to show that Mother and the children have identical
interests. See, e.g., In re B.M., No. 13-17-00467-CV, 2017 WL 5953098, at *9 (Tex.
App.—Corpus Christi–Edinburg Nov. 30, 2017, pet. denied) (mem. op.); In re G.F.,
No. 09-11-00316-CV, 2012 WL 112549, at *1 (Tex. App.—Beaumont Jan. 12, 2012,
no pet.) (mem. op.). The children’s interest was to find a safe, loving, and permanent
living situation to live in and to have frequent, continuing contact with a parent who
has shown the ability to act in their best interest. See Tex. Fam. Code Ann.
§ 153.001(a)(1)–(2); B.M., 2017 WL 5953098, at *9; In re J.E.G., No. 06-17-00064-CV,
2017 WL 4448547, at *5 (Tex. App.—Texarkana Oct. 6, 2017, pet. denied) (mem.
op.). The evidence, however, proved that Mother could not provide that, despite her
desire for reunification. Because Mother’s and the children’s interests were not
aligned, Mother lacks standing on appeal to challenge the trial court’s failure to
bifurcate Hopkins’s roles and to appoint a separate guardian ad litem to represent the
children. 11 See G.F., 2012 WL 112549, at *1 (holding that mother lacked standing in
11
Moreover, at the time Hopkins’s alleged conflict arose, the Department was
the children’s managing conservator. As managing conservator, the Department has
8
parental-rights-termination case to complain that children’s attorney ad litem provided
ineffective assistance by improperly taking on dual role as both attorney and guardian
ad litem or to complain about “an alleged conflict of interest or deficient performance
on the part of the ad litem”).
Even if Mother had standing to lodge this complaint (and assuming that she
preserved it for our review), she cannot show harm.12 To obtain reversal of a
judgment based on an error in the trial court, the appellant must show not only that
the error occurred but also that it probably caused rendition of an improper judgment
or probably prevented the appellant from properly presenting the case to this court.
Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex.
2005). Mother does not argue that the trial court’s failure to appoint a separate
guardian ad litem to represent the children harmed or injured her; she asserts only
harm to the children, which, as we explained above, she lacks standing to do.13
We overrule Mother’s issue.
“the right to represent the child in legal action[s] and to make other decisions of
substantial legal significance concerning the child.” Tex. Fam. Code Ann.
§ 153.371(8). Mother did not have that right then nor does she now on appeal.
12
We are equally unpersuaded that Mother could show error. That Hopkins told
the trial court at the new-trial hearing that Lance did not want to go back to Mother
“at that moment” but told the trial court later that same day that Lance wanted to live
with Mother does not—without more—show that she could not ethically represent
his best interest.
13
As we have pointed out in similar cases, “Mother [appears to be] seek[ing] to
exploit the alleged deficiencies of the child’s counsel for her own use on appeal.” S.I.-
M.G., 2012 WL 5512372, at *14; T.N., 142 S.W.3d at 524.
9
III. Conclusion
Having overruled Mother’s only issue, we affirm the trial court’s order.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: February 9, 2023
10