C.D. v. D.D. ( 2024 )

Affirmed and Memorandum Opinion filed July 16, 2024.
In The
Fourteenth Court of Appeals
NO. 14-23-00880-CV
C. D., Appellant
V.
D. D., Appellee
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2009-00064
MEMORANDUM OPINION
In this appeal from a final order terminating the parent-child relationship,
appellant and self-represented attorney C.D. (Mother) challenges only the trial
court’s award of legal fees to the appointed amicus attorney. In five issues, Mother
argues the trial court erred in (1) appointing an amicus attorney to represent the
child’s best interests and (2) awarding $2,999.07 in legal fees to the amicus
attorney appointed by the court. We affirm the final order of the trial court.
I. BACKGROUND
Mother filed a petition to terminate the parent-child relationship between
Mother and her fourteen-year-old child in Harris County, the county in which the
child resides. After the child’s father appeared and answered, the trial court
appointed an amicus attorney.1 Mother objected to the appointment because no
party had requested the appointment and Mother believed that given the age of the
child and the straight-forward nature of the proceedings no amicus appointment
was warranted.
At mediation, Father and Mother agreed to the termination of the
parent-child relationship between Mother and the child. The amicus also agreed to
the termination. However, Mother would not agree to pay the fees the amicus
incurred.
A trial was held on the issue of the amicus’s fees. After trial, the trial court
signed a final order terminating the parent-child relationship and ordered Mother to
pay $2,999.07 of the $4,498.84 2 in outstanding legal fees for the services of the
amicus. 3
1
Father has not appeared or filed a brief in this appeal. Accordingly, we accept as true the
facts stated in Mother’s appellant’s brief if those facts are supported by the appellate record
because Father has not contradicted them. Tex. R. App. P. 38.1(g).
2
In its first order appointing an amicus attorney, the trial court ordered the fees of the
amicus to be shared equally between Mother and Father. The total billed by the amicus was
$5,999.70, of which $4,499.40 was outstanding at the time of trial. At the time of trial, Father
had already paid $1,500.
3
The “agreed order terminating parent-child relationship” which requires the parties to
pay the legal fees of the amicus is a final, appealable order. See Tex. Fam. Code Ann.
§ 109.002(b) (“An appeal may be taken by any party to a suit from a final order rendered under
this title.”); Tex. Fam. Code Ann. § 161.206 (“Order Terminating Parental Rights”). There were
motions for sanctions filed by both parties pending at the time the final order was rendered.
Unlike a pending cause of action, a pending motion for sanctions does not make interlocutory an
otherwise-final judgment. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312
(Tex. 2000) (“[W]e agree that a judgment does not have to resolve pending sanctions issues to be
2
II. ANALYSIS
A. Appointment of amicus attorney
In issue 1, Mother argues the trial court abused its discretion when “it sua
sponte entered an onerous order without any guidance, without any request,
without any notice, without any hearing, without any evidence, and without any
reliance on any law.”
Mother filed an initial written opposition to the appointment, which stated
only that the trial court’s ruling was improper and did not address any of the
statutory requirements. She filed another document in which she again objected to
the appointment of the amicus and requested that the trial court vacate the order. In
her objection and request, she complained that the trial court did not properly
consider the statutory requirements. However, Mother did not offer any evidence
or argument on any specific statutory consideration that would weigh against a
conclusion that the amicus was warranted. The only consideration Mother cited
was that the child was old enough to testify and express her desires in court. But
the fact that the child was old enough to come to court and testify is not a statutory
consideration for the trial court. There is no indication in the record that Mother’s
objection was ever presented to the trial court, heard by the trial court, or ruled on
by the court. See Tex. R. App. P. 33.1. Therefore, this issue has not been preserved
for appellate review.
We overrule issue 1.
B. Compliance with the Family Code
In issue 2, Mother argues the trial court abused its discretion when it refused
final”). The two pending motions for sanctions did not preclude the order terminating Mother’s
parental rights from becoming final. Therefore, we have jurisdiction to review Mother’s appeal
from that order.
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to consider and comply with the mandatory fact-finding analysis required by the
Family Code. Specifically, Mother argues that the trial court did not conduct an
evidentiary analysis and did not make the findings required by statute. She again
attacks the trial court’s order appointing the amicus as erroneous.
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 either an amicus
attorney or attorney ad litem. Tex. Fam. Code Ann. § 107.021(a).
In determining whether to make an appointment under this section, the court
shall give due consideration to the ability of the parties to pay reasonable fees to
the appointee; and balance the child’s interests against the cost to the parties that
would result from an appointment by taking into consideration the cost of available
alternatives for resolving issues without making an appointment and may make an
appointment only if the court finds that the appointment is necessary to ensure the
determination of the best interests of the child. Tex. Fam. Code Ann. § 107.021(b).
Section 107.023 authorizes awards of reasonable fees and expenses to appointed
amicus attorneys. Tex. Fam. Code Ann. § 107.023(a).
Although Mother argues the trial court sua sponte raised the appointment of
an amicus, section 107.021 reflects that such action is appropriate as the statute
states the trial court “shall” appoint an amicus unless the trial court finds the
child’s interests are adequately protected by a party to the proceeding. Mother cites
no authority for her proposition that an amicus should only be appointed if
requested by the parties. The statute also does not require an evidentiary hearing as
Mother’s argument on appeal implies. Nor does the statute require the trial court to
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make its findings in writing.4
To the extent that Mother asserts the trial court failed to consider all
pertinent evidence as required by statute, the record does not reflect that Mother
presented any other facts or information to the trial court (other than asserting the
child was old enough to testify in court). The record does not reflect that Mother
sought a hearing or reconsideration of the order appointing the amicus. She did not
present her objection regarding the amicus to the trial court and receive a ruling.
Therefore, we conclude this issue has not been preserved for appellate review.
We overrule issue 2.
C. Trial court’s adoption of agreed order
In issue 3, Mother argues that the trial court’s titling of the final order
terminating the parent-child relationship as “agreed” was in error because Mother
did not agree to the order. 5 Although Mother offers no specific argument on this
issue, it appears that the trial court used a proposed agreed order drafted by Father
and added some language regarding payment of amicus fees.
The final order is titled “agreed” and internally repeats that the terms are
agreed, Mother did not sign the judgment and thus it is not an agreed judgment.
The same rules of interpretation apply in construing the meaning of court orders as
in ascertaining the meaning of other written instruments. See Lone Star Cement
4
Although Mother requested findings of fact and conclusions of law with respect to the
trial court’s appointment of the amicus, Mother offers no authority, here or in the trial court,
reflecting a duty on the trial court to file written findings of fact and conclusions of law
supporting its decision to appoint an amicus attorney. Under Rule 296, findings of fact and
conclusions of law are not generally applicable to interlocutory orders signed by the trial court.
See Tex. R. Civ. P. 296.
5
We note that one of Mother’s requests for relief is that this court “vacate the trial court’s
agreed order in the use of the trial court’s repeated use of the term ‘agreed[.]’” However, this
court cannot vacate the trial court’s judgment in part. If we were to vacate the judgment, we must
vacate the entire judgment.
5
Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex. 1971). The entire order is to be read
as a whole. Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 474 (Tex.
App.—Fort Worth 2007, no pet.). Here, reading the order as a whole including the
lack of signature by Mother, it is clear the order is not agreed.
However, Mother did not preserve error by objecting to the form of the final
order to the trial court nor has she alleged any reversible error. See Tex. R. App. P.
33.1 (record must show “complaint was made to the trial court by a timely request,
objection, or motion”); 44.1 (“No judgment may be reversed on appeal on the
ground that the trial court made an error of law unless the court of appeals
concludes that the error complained of . . . probably caused the rendition of an
improper judgment.”).
We overrule issue 3.
D. Rendition of judgment in favor of the amicus
In issue 4, Mother argues the trial court abused its discretion by rendering
judgment in favor of the amicus. In support of this allegation of error, Mother
asserts that the amicus did not add any value to the proceedings. She further
complained of the various expenses claimed by the amicus and the amicus’s hourly
rate.
Mother made these arguments and objections about the cost and expenses of
the amicus at the trial, which the trial court implicitly overruled by awarding the
amicus the full amount of fees requested. Although Mother claims that “[n]one of
the amicus fees were legally reasonable,” the amicus proved up her qualifications,
testified to her hourly rate, and provided documentation and testimony describing
the 17 hours of time she expended on the case.
The role of an amicus attorney appointed by the court in a suit, other than a
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suit filed by a governmental entity, is to provide legal services necessary to assist
the court in protecting a child’s best interests. Tex. Fam. Code Ann. § 107.001(1).
The Family Code also details the powers and duties of an amicus attorney, which
include, as relevant here, that an amicus shall: (1) interview the child; (2) interview
the parties to the suit; (3) investigate the facts of the case; and (4) participate in the
conduct of the litigation to the same extent as an attorney for a party. Tex. Fam.
Code Ann. § 107.003(1).
With respect to the fees of an amicus, the trial court shall “determine the fees
and expenses of an amicus attorney . . . by reference to the reasonable and
customary fees for similar services in the county of jurisdiction.” In challenging
the time spent on the case by the amicus, Mother did not identify any activities
inconsistent with the statutory duties of an amicus attorney. In challenging the
hourly rate of the amicus, Mother argued that the hourly rates paid by Harris
County for criminal appointments should be used to compensate the amicus.
However, Mother offered no expert testimony or explanation of how such rates
reflect reasonable and customary fees for family law matters. In sum, we cannot
say the trial court abused its discretion in awarding the amicus the total fees billed.
We overrule issue 4.
E. Apportionment of amicus fees
In issue 5, Mother argues that the trial court abused its discretion, without
any evidence, by apportioning remaining amicus fees “66% against [Mother] and
33% against [Father].” Mother offers no specific argument in her brief on this
topic.
To the extent that Mother is attempting to argue the trial court abused its
discretion by apportioning the fees unequally between the parties, Mother
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misconstrues the evidence at trial. The amicus testified that the total billed for her
services was $5,999.70. Because Father made a payment before trial of $1,500, the
amount outstanding at trial was $4,499.70. At the time of trial, Mother had made
no payments to the amicus. The final order of the trial court ultimately effected an
even split of the amicus fees between Mother and Father. Mother also has not
preserved any error with respect to the apportioning of the amicus fees by the trial
court as she did not object to the apportionment of fees in the trial court.
We overrule issue 5.
III. CONCLUSION
Having overruled all five issues Mother raised on appeal, we affirm the final
order of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Spain, and Hassan.
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