in the Interest of A.E.J., L.S.J., and D.M.J., Children ( 2020 )

DISSENTING and Opinion Filed August 31, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00340-CV
IN THE INTEREST OF A.E.J., L.S.J., AND D.M.J., CHILDREN
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-17-19493
DISSENTING OPINION
Before Chief Justice Robert D. Burns, III, Justice Molberg, and Justice Nowell
Dissenting Opinion by Chief Justice Robert D. Burns III
Because the majority ignores decades of precedent from other Texas appellate
courts allowing a party to challenge a trial court’s failure to appoint an attorney ad
litem in a private termination of parental rights case for the first time on appeal and
glosses over evidence in the record favorable to Father to reach its desired waiver
conclusion, I must dissent.
Preservation under § 107.021
Our legislature determined that in privately brought lawsuits in which parental
rights are subject to termination, the trial judge “shall” appoint an ad litem or amicus
attorney, 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 . . . .” TEX. FAM. CODE ANN. § 107.021(a-1) (emphasis added). In the
context of termination, an ad litem represents only the child’s interests—not those
of either parent. Id.; see also TEX. FAM. CODE ANN. §107.004 (“[A]ttorney ad litem
appointed for a child shall, in a developmentally appropriate manner: (1) advise the
child; (2) represent the child’s expressed objectives of representation and follow the
child’s expressed objectives of representation during the course of litigation if the
attorney ad litem determines that the child is competent to understand the nature of
an attorney-client relationship and has formed that relationship with the attorney ad
litem . . . .”).
Prior to today, the failure by the parent subject to termination to request or
complain about the absence of an ad litem has had no impact on the child’s
entitlement to representation. Accordingly, I would conclude the children’s
entitlement to an ad litem was not waived by father’s failure to object to such error
prior to trial. My conclusion is supported by other intermediate appellate courts in
Texas that have addressed this issue. Simply stated, failure to appoint an ad litem
may be raised for the first time on appeal. See In re D.M.O., No. 04-17-00290-CV,
2018 WL 1402030, at *2 (Tex. App.—San Antonio Mar. 21, 2018, no pet.) (mem.
op.); In re K.M.M., 326 S.W.3d 714, 716 (Tex. App.—Amarillo 2010, no pet.) (“The
failure to comply with section 107.021 is error that cannot be treated as harmless due
to the serious nature of the proceedings involved.”); Chapman v. Chapman, 852
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S.W.2d 101, 102 (Tex. App.—Waco 1993, no writ); Turner v. Lutz, 654 S.W.2d 57,
58 (Tex. App.—Austin 1983, no writ); Arnold v. Caillier, 628 S.W.2d 468, 470 (Tex.
App.—Beaumont 1981, no writ).
The majority relies heavily on the waiver analysis in In re B.L.D, 113 S.W.3d
340 (Tex. 2003). That case, however, addressed waiver of jury charge error by
parents represented by counsel. Id. at 349. There is simply no basis to apply that
analysis here, and the majority fails to provide authority or logical reasoning why
“we follow the same analysis.” Furthermore, that case was reversed on grounds
other than the waiver error addressed by the supreme court. Instead, the majority
dismisses the above-cited cases holding otherwise because “the right to an ad litem
was simply described as one of constitutional magnitude [by those courts] with no
analysis regarding whether due process rights were unfairly restricted by enforcing
our waiver rules.” How much analysis is necessary to explain a child’s right to
appointment of an ad litem to protect his or her interest during a termination
proceeding of constitutional magnitude?1 Moreover, Father’s due process rights
have no bearing on whether the children were entitled to an ad litem attorney. The
risk to Father that he would be erroneously deprived of his parental rights is not the
1
Section 107.021 commands the court to appoint, but gives the trial court discretion to refrain under a
limited circumstance. As discussed later, I disagree with the trial court’s conclusory finding that mother’s
interests were not in conflict with the children’s interests thereby alleviating the trial court of its duty to
appoint an ad litem.
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risk the statute attempts to alleviate. Instead, section 107.021(a-1) seeks to protect
the children from an erroneous deprivation of the interest and involvement in their
lives of one of their parents. And while the conflict inherent in one parent’s
attempting to terminate one parent’s rights is obvious, it is exacerbated when it is
part of a divorce action, as is the case here.
For the sake of indulgence, even if I agreed the B.L.D. due process analysis
should be applied under these facts, which I do not, I cannot agree with the majority’s
application of the facts to this case and its ultimate conclusion that enforcing
preservation rules does not violate Father’s due process rights. Like the majority, I
agree the first due process factor, Father’s “fundamental liberty interest in the care,
custody, and control of his children,” favors reviewing unpreserved error.
To the extent the majority discusses B.L.D.’s second due process factor, the
State’s dual but competing interests, it is important to note the State did not seek
termination in this case. Rather, Mother sought termination as part of her petition
for divorce (again exposing the majority’s misplaced reliance on B.L.D.’s due
process analysis). Regardless, continuing to indulge in the majority’s due process
analysis, it asserts best interest of the child favors the review of unpreserved error if
necessary to ensure “an accurate and just result,” but best interest also “requires a
heightened concern for judicial economy manifested as a prompt and final resolution
of termination cases.” Although the second factor does consider judicial economy,
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I would hold that best interest cannot be sacrificed for judicial economy and prompt
resolution when a trial court ignores a statute put in place to ensure the best interests
of a child are considered, and that child’s constitutional rights protected, during
termination proceedings.
Further, judicial economy was protected here because the trial court had the
opportunity to correct its error. See In re B.L.D., 113 S.W.3d at 353 (noting strong
interest in trial court’s opportunity to correct errors as a matter of judicial economy).
Father’s counsel, who first appeared after the judgment was rendered, raised the
court’s failure to appoint an ad litem and failure to make the finding regarding
Mother’s ability to represent the children’s interests, in Father’s motion for new
trial—the first pleading filed on Father’s behalf by counsel and the first pleading
after the finding was issued in the FFCL.2 Although a motion for new trial comes
late in the termination process, raising an error of this magnitude before the judgment
becomes final for purposes of appeal promotes the State’s interest in providing a trial
court the opportunity to correct errors as a matter of judicial economy. The
majority’s contrary view defeats that purpose and is needlessly punitive. Thus,
unlike the majority, I conclude this factor likewise weighs in Father’s favor. Because
two of the three B.L.D. due process factors weigh in Father’s favor, I would conclude
father preserved his argument for appellate review regarding the trial court’s failure
2
Father was indigent when the case was filed, and pro se at trial.
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to appoint an ad litem. Waiver did not occur. See, e.g., In re B.L.D., 113 S.W.3d at
349 (“A party must make a trial court aware of a complaint, timely and plainly, and
obtain a ruling.”).
Conflict of Interest under § 107.021
Section 107.021 requires the appointment of a guardian ad litem “unless the
court finds the interests of the child will be represented adequately by a party to a
suit whose interests are not in conflict with the child’s interests.” TEX. FAM. CODE
ANN. § 107.021(a-1) (emphasis added). Only after rendering judgment did the trial
court issue the following conclusory and inadequate finding:
Prior at [sic] the pretrial hearing, the Court considered whether the
appointment of an Ad Litem for the three children was necessary and
concluded per 107.021 that it was not necessary because their interests
would be adequately represented by a party whose interests were not in
conflict with the children’s. In making this determination, the Court
considered the limited resources of the parties and the complexity of
the litigation and that the primary issue in this case would be the
credibility of the evidence presented at trial. Consequently, no
appointment was made.
I conclude the record does not support this finding.
First, there is no record of the three pretrial hearings. When a hearing occurs
but no transcript is prepared, and absent specific indications to the contrary, we
presume the hearing was not evidentiary. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 783 (Tex. 2005). In such an instance, we also presume the
trial court considered any evidence in its file at that time supporting its finding. Id.
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Father disputes the issue was actually considered during any of the three pretrial
hearings as reflected in the trial court’s docket. The docket supports Father’s
assertion.3 I recognize the docket itself is generally only a memorandum for the
court’s and clerk’s convenience, see Garza v. Tex. Alcoholic Beverage Comm’n, 83
S.W.3d 161, 167 (Tex. App.—El Paso 2000), aff’d, 89 S.W.3d 1 (Tex. 2002), but
presuming the finding was supported by evidence that we are unable to conclude
was on file at the time the trial court made the undated finding, requires the Court to
presume too much.
Even indulging in such unfair presumptions, however, the only possible
evidence the trial court could have relied on pretrial was the custody evaluator’s
report filed months after the first two pretrial hearings but several months in advance
of the final hearing. The report provides no support for the finding. To the contrary,
although Mother was undoubtedly motivated to protect Z.W.’s interests in seeking
a divorce and precluding further interaction between Z.W. and Father, the report
emphasized the parties’ contradictory assertions about whether the abuse occurred
and numerous observations that Father was a “great father” to his children.
3
The docket reflects pretrial hearings on July 9, 2018, September 10, 2018, and August 8, 2019. The
custody evaluator’s report was filed on May 16, 2019, and trial occurred on December 2, 2019. None of
the notations in the docket related to those hearings reference an ad litem or issues or determinations
regarding an ad litem. Notations in the docket regarding these hearings are as follows: July 9, 2018 (both
parties attended; “Order – pay social study fees; comment fees due August 1”); September 10, 2018 (both
parties attended; “Order- Family Court Services”); August 8, 2019 (both parties attended; no further docket
notation regarding this hearing).
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The majority ignores or glosses over the children’s interests in this case. It
misleads the reader to conclude the children are too young to have an opinion or too
young to have an opinion that should be considered, boldly claiming “our record
does not include specific evidence regarding any of the children’s desires.” The
report shows that is simply not true.
The custody evaluator spent many hours with family members and wrote a
thorough and balanced report. He met with the parties and the children eleven times
over a six-month period and documented his independent observations. When he
met with the biological children he observed the following:
 The ten-year-old daughter, A.J., feels good about Father and shares a close
bond.
 A.J. stated that when the children were little, they always had fun, played
make up games and enjoyed funny moments with Father.
 She said Father has never engaged in behavior that made her feel
uncomfortable.
 A.J. sometimes cried when speaking about Father.
 She said Father “is a very funning [sic] and loving man” (next to a heart
shaped drawing).
 L.J., the seven-year-old, reported that if she had three wishes, she would
wish to see Father; she does not have any other wish.
Later in the report, the custody evaluator described another home visit to
Father’s and his girlfriend’s house. The children cried when they saw Father, and
he hugged them. The five-year-old boy cried when Mother came to pick them up
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because he wanted to spend more time with father. The evaluator further noted
Father “seems patient with the children and attended to their needs. He seems to
love the children and appears to be a hard worker.”
The custody evaluator ultimately concluded, “it does not appear that
termination of the father’s parental rights to the children in question will be in their
best interests, but the challenge is how to ensure that the children are protected given
what happened to Z.W. The children are undoubtedly comfortable with the mother
and desire to have a relationship with their father.” The evaluator concluded that
Father should have supervised visits. Clearly, there is a substantial amount of
evidence, especially in the context of a divorce, that Mother’s interests do not align
with the children’s interest.
In light of this evidence, I would accordingly conclude the trial judge abused
her discretion in finding no conflict existed. See In re D.M.O., 2018 WL 1402030,
at *4 (“W]hen one parent is attempting to terminate the parental rights of another
parent, the very nature of the case requires the father and mother to litigate their
personal interests.”) (internal quotation and alternation omitted); In re K.M.M., 326
S.W.3d at 715 (“Indeed it has been recognized that where parents are adversaries in
a suit to terminate one parent’s rights, the trial court can seldom find that one party
adequately represents the interests of the children involved or that their interests are
not adverse.”); Chapman, 852 S.W.2d at 102 (trial court could not have found “that
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the interests of the child will be represented adequately by a party to the suit and are
not adverse to that party . . . because each party was strongly advocating his or her
own interests”); Barfield v. White, 647 S.W.2d 407, 409 (Tex. App.—Austin 1983,
no writ) (“[W]e 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.”); Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.—
Austin 1983, no writ).
In reaching this conclusion, I reject the cases relied on by the majority because
they are factually distinguishable. In In re B.W., the mother sought termination
because of the father’s history of family violence, some of which occurred in the
presence of the child. Father was in and out of jail and had numerous positive drug
tests for various illegal drugs. Mother testified the father “hadn’t been a father. He’s
had five years to be a father and he hasn’t.” In re B.W., No. 02-19-00009-CV, 2019
WL 2041808, at *3 (Tex. App.—Fort Worth May 9, 2019, no pet.) (mem. op.).
Mother believed it was in the best interest for her current husband to raise her child
and “teach him the way of life” because she “didn’t see [father] doing that.” Id. The
daughter in In re C.A.P. asked the mother to file the termination suit against her
father because she no longer wanted to associate with him after learning about his
sexual abuse history. Father in that case was in prison for sixteen different counts
of sexual assault. In re C.A.P., No. 04-12-00553-CV, 2014 WL 749825, at *2 (Tex.
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App.—San Antonio Feb. 27, 2013, pet. denied) (mem. op.). The record in In re
T.L.W. contained the children’s attitudes and feelings toward their father, among
other things, that supported the trial court’s finding that no ad litem was necessary.
The father in that case was frequently incarcerated and was currently incarcerated
serving a prison sentence. Further, and perhaps most importantly, the trial court
actually interviewed the children in chambers to find out the children’s viewpoint.
In re T.L.W., No. 12-10-00401-CV, 2012 WL 1142475, at *3 (Tex. App.—Tyler
Mar. 30, 2012, no pet.) (mem. op.). The record before us in the instant case indicates
Father wanted to be involved with his children, he made the effort when given the
opportunity, and the children enjoyed their time with him. In other words, the
evidence conflicted with Mother’s interest in terminating Father’s parental rights
because it supported denying the application for termination of his parental rights.
The final case cited by the majority is distinguishable from this case because
the record reflected that the mother’s primary interest was to protect the child from
the father. See In re R.J.C., No. 04-09-00106-CV, 2010 WL 816188, at *2 (Tex.
App.—San Antonio Mar. 10, 2010, no pet.) (mem. op.). In that case, appellant was
in prison for aggravated sexual assault of a six-year-old child, was in prison when
the child was born, and had no relationship with the child. There was also evidence
in that record of appellant abusing several children. Id. Here, the evidence shows
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Father had a strong relationship with his children. By failing to appoint the children
an ad litem, the trial court failed to protect the children’s interests in that relationship.
Further, although this case and R.J.C. involve mothers wanting to protect their
children from a father’s acts against another child, I cannot reach the same
conclusion under our facts. The interests of the three biological children are different
from the stepdaughter’s interests. There are no allegations here that Father did
anything inappropriate with his biological children. The biological children clearly
want a relationship with their Father. Accordingly, I would conclude that the trial
court abused its discretion by finding that Mother’s interests did not conflict with
the children’s interests. The findings of fact and conclusions of law are wholly
conclusory and ignore substantial and important evidence in the record below.
Because the trial court denied the children their statutory right to an ad litem
to protect their interest in the termination proceeding, I would sustain Father’s
second issue, reverse the portion of the final judgment that orders termination of the
parental rights between Father and the children, and remand for a new trial.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
200340DF.P05
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