in the Interest of J.N., L.N., K.N., M.N., Children, 05-20-00695-CV

This is a concurring/dissenting opinion (Justice Cory L. Carlyle) in In the Interest of J.N., L.N., K.N., and M.N., addressing a trial court’s refusal to interview a child over 12 under Family Code § 153.009(a).
The panel majority applied a harmless-error (harm) analysis to the trial court’s failure to conduct the statutory in‑camera interview; Justice Carlyle dissents from that procedural ruling.
Carlyle argues the statute’s text—particularly § 153.009(c) (the child’s statement does not diminish the court’s discretion)—shows the interview requirement is mandatory and not subject to a post hoc harm inquiry.
She emphasizes statutory context and legislative choices (citing a different family-law statute that contains a saving clause) to argue courts should not read a harmless‑error safety valve into § 153.009.
Practical and evidentiary concerns: appellate courts often lack what the child would have said, so a meaningful harm analysis is impossible unless an offer of proof or bill of exceptions preserves the child’s prospective testimony—however, requiring that undermines the statute’s purpose of private judge–child communication.
Carlyle acknowledges the record supports the custody result on the merits but would nonetheless hold the failure to interview is reversible error and make that rule non‑retroactive.

Issue	Appellant's Argument	Appellee's Argument	Held (Carlyle, J., concurring/dissenting)
Whether a trial court’s failure to interview a child over 12 under Fam. Code §153.009(a) is subject to harmless‑error review on appeal	The error is harmful and requires reversal unless shown harmless	The error is harmless because the trial court’s decision was unaffected and ample evidence supports the custody ruling	Carlyle: Not subject to harm analysis; statutory interview is mandatory and failure is reversible error (would reverse and apply non‑retroactively)
Whether appellate courts can meaningfully apply a harm analysis absent the child’s recorded statements	Appellant: Appellate court can infer harmlessness from record	Appellee: Appellate court need not know exact child statement when impact is unlikely	Carlyle: Cannot perform proper harm analysis when record lacks what the child would have said; Rule 44.1 prevents meaningful review
Whether requiring an offer of proof/bill of exceptions remedies the evidentiary gap	Appellant: Offer of proof could preserve what the child would have said	Appellee: An offer of proof suffices to show harmlessness	Carlyle: Requiring offers of proof undermines the statute’s purpose (private judge–child interview) and is contrary to §153.009’s design

In re D.I.B., 988 S.W.2d 753 (Tex. 1999) (Texas Supreme Court applied harmless‑error analysis in juvenile criminal context)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (lists child’s desires as a primary Holley best‑interest factor)
TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016) (statutory language must be read in context to avoid surplusage)
In re M.S., 115 S.W.3d 534 (Tex. 2003) (discusses harmless‑error application in family‑law appellate review)