Barrow v. Durham , 1978 Tex. App. LEXIS 3973 ( 1978 )

OPINION

YOUNG, Justice.

This appeal arose from a judgment dismissing a bill of review which judgment held that the plaintiffs lacked standing to bring the cause. Plaintiffs, appellants herein, John Barrow as guardian ad litem for Deanne and Daniel Hammaker, minors, and Co Le-Thi Hammaker, the natural mother of Deanne and Daniel, initiated the bill of review to overturn a prior judgment of adoption entered on July 9, 1976, granting parental rights in Deanne and Daniel Hammaker to appellees, Jack E. and Lavonne Durham. Appellees interposed a plea in bar asserting: that Co Le-Thi Ham-maker had no standing to bring the suit because she was not a party to the adoption proceeding and had no interest in the children because on October 8, 1974, all of her parental rights in the children had been terminated in a proceeding under Tex.Laws 1973, ch. 543, §§ 15.01-15.07, at 1426-29; and that Barrow, as guardian ad litem, did not have standing to represent Deanne and Daniel because he had been appointed guardian ad litem for the two children in the prior parental rights termination suit and his interest in the children ended at the conclusion of the termination suit.

Without receiving any evidence and considering only the pleadings in this suit and the record in the prior termination suit the trial court sustained the Durham’s plea in bar and dismissed the bill of review action.

The bill of review alleges that Barrow, as guardian ad litem in the termination proceeding, did not receive notice of the adoption though he was entitled to be notified because his representative capacity was never formally terminated. It also alleges that the children, who were five years old at the time of the adoption proceeding, were not properly represented by counsel at the adoption hearing and that appellants would have presented the defense that it was in the best interest of the children to be returned to their natural mother, Co Le-Thi Hammaker. Moreover, it alleges that the State Department of Public Welfare did not lay the infants’ case properly before the court in that it merely consented to adoption by the appellees, when it would have been in the best interests of the children to return them to their natural mother.

Appellants bring four points of error. Points 3 and 4 contend the trial court erred in finding that Co Le-Thi Hammaker (3) was not a party to the adoption and (4) possessed no standing to file the bill of review.

Usually, in order for a party to possess standing to file a bill of review, he must be a party to the prior judgment, or one who had a then existing interest or right which was prejudiced thereby. 4 McDonald, Texas Civil Practice § 18.26 (1971).

The decree of adoption makes no reference to appellant, Co Le-Thi Hammaker as a party. Indeed, she was not even entitled to notice of the adoption proceeding. Tex. Fam.Code Ann. § 11.09(a)(7) (Supp.1978). Concerning any interest she might have had, the record is clear that all of her rights and interests in both Deanne and Daniel were terminated in the prior termination order, and thus she had no interest in the adoption. Tex.Laws 1973, ch. 543, § 15.07 at 1429; Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App.—Corpus Christi 1976, no writ). Appellants’ point 3 is overruled. Point 4 will be further discussed later in this opinion.

Appellants’ points 1 and 2 contend the trial court erred in holding (1) that John Barrow as guardian ad litem for the children in the termination suit was not a party to the adoption suit and (2) that he had no standing to contest it by bill of review.

The record discloses that Barrow as guardian ad litem was not a party to the adoption. A guardian ad litem’s interest is limited to matter connected with a suit in which he is appointed. Wright v. Jones, 52 S.W.2d 247, 251 (Tex.Com.App.1932, holding approved). See Annot, 115 A.L.R. 571 (1938). The question, then, is whether the suits for termination and adoption were separate and distinct suits. Appellant argues that the provision for continuing jurisdiction, in essence, makes the entire proceeding one suit from the time of termination to the time of adoption. Tex.Fam. Code Ann. § 11.05 (Supp.1978). We disagree. Only in a jurisdictional sense are all actions part of the same suit. Baker v. Seaver, 567 S.W.2d 854, 856 (Tex.Civ.App.—Eastland 1978, no writ). The Family Code has made it very clear that except for motions to modify as provided in Tex.Fam. Code Ann. § 14.08 (Supp.1978), all requests for further action concerning a child are new suits. See Tex.Fam.Code Ann. § 11.07 (Supp.1978); see also Smith, Commentary on Title 2 Parent and Child, 8 Tex.Tech L.Rev. 19, 29-30 (1976). The language in Tex.Fam.Code Ann. § 11.10(a) & (c) also reflects the legislative determination that any suit in which termination of the parent-child relationship is sought, is a suit separate from other suits. The courts have also concluded that a termination judgment is a final irrevocable decree. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.Sup.1976); Baggett v. State, 541 S.W.2d 226 (Tex.Civ.App.—Tyler 1976, no writ). Accordingly, we hold that Barrow’s appointment as guardian ad litem in the termination suit ended when the judgment rendered in that suit became final, and that he was not entitled to be a party to the adoption proceeding merely because he had been appointed guardian ad litem in the prior termination suit. Appellants’ point 1 is overruled and we will dispose of their point 2 in the following discussion.

All of which brings us to further consideration of appellants’ points 2 and 4 regarding their standing to file a bill of review. In addition to the rights appellants assert in their capacities as alleged in the trial court and on appeal, the appellants make extended argument concerning the basic rights which were denied the children. In sum, they contend that it is mandatory for a child to be represented by counsel at an adoption proceeding in which the guardian ad litem’s (here the Nueces County Child Welfare Unit) interests are adverse to those of the child. They cite for example Rule 173, T.R.C.P., and Sims v. State Department of Public Welfare, etc., 438 F.Supp. 1179, 1194 (S.D.Tex.1977). In this regard, they point to the instant record which shows that the children were not represented by counsel at the adoption proceeding and that only a representative of the Nuec-es County Child Welfare Unit of the State Department of Public Welfare of Texas was present to represent their interests. Appellees, on the other hand, assert that a child is not entitled to mandatory representation by counsel in any adoption proceeding and cite in support thereof Rethaber v. Bauman, 433 S.W.2d 721 (Tex.Civ.App.— San Antonio 1960, no writ). Rethaber is distinguishable, though, in that the court there limited its holding to the situation before it, which involved maternal and paternal grandparents in a dispute over the adoption of grandchildren. No mention was made of any conflict in interest between the child and the grandparents. So, if it can be shown that the State Department of Public Welfare’s interests are adverse to those of the child, it would be an abuse of discretion for the trial judge to fail to appoint a different guardian ad litem. See Family Tex.Fam.Code Ann. § 11.10 (Supp.1978); Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 156 S.W.2d 265, 267 (Tex. Com.App.1941, opinion adopted); compare Sims v. State Dept, of Public Welfare, etc., supra. If this fact is shown along with a meritorious defense and exhaustion of legal remedies, a bill of review should be sustained. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). Furthermore, if it can be shown that by collusion, neglect, or mistake, the State Department of Public Welfare did not lay the infants’ case properly before the court, the adoption may be set aside by bill of review. See Missouri-Kansas-Texas R. Co. of Texas v. Pluto, supra. Thus, the appellants have alleged some facts both in the trial court and on appeal which if proven would entitle them to a sustaining of their bill of review. The question, then, is whether the appellants possessed standing to bring the bill of review.

Within the context of this appeal, appellants’ arguments are those which would be asserted by someone acting in the capacity of next friend to the minor children. In the capacity of next friend, Barrow or Co Le-Thi Hammaker would have standing to present the interests of the children in a bill of review. This is so because in any action involving their custody, the children are the real parties in interest. C_ v. C_, 534 S.W.2d 359 (Tex.Civ.App.—Dallas 1976, no writ).

Although no point of error or pleading directly and specifically asserted either Barrow’s or Co Le-Thi Hammaker’s status as a next friend in bringing this action, we think that in matters concerning support and custody of children the paramount concern is the best interest of the children and the technical rules of pleading and practice are not of controlling importance. Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.Sup.1967); Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d). Accordingly, we hold that the failure of Barrow and Co Le-Thi Hammaker to use the phrase “next friend” in the trial court and on appeal is not controlling. Rather, the assertion of the children’s interest as if they were their next friends does control. 30 Tex.Jur.2d Infants § 64 (1962). Either Barrow or Co Le-Thi Hammaker had the right to sue as next friend of the children herein. See Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ. App. — Corpus Christi 1967, writ ref’d n. r. e.). And, just because they did not use the phrase “next friend” in pleading or on appeal should not preclude the appellants’ assertion of the children’s interest. 43 C.J.S. Infants § 267b (1978); see also Spears Dairy v. Davis, 124 S.W.2d 159 (Tex.Civ.App.—Beaumont 1939, no writ). Appellants’ points 2 and 4 are sustained.

The judgment of the trial court is reversed and the cause is remanded for trial.