852 S.W.2d 101 | Tex. App. | 1993
IN THE
TENTH COURT OF APPEALS
No. 10-92-278-CV
     ARMS SPAFARD CHAPMAN,
                                                                                              Appellant
     v.
     ANGELA RENEE BURTON CHAPMAN,
                                                                                              Appellee
From the 19th District Court
McLennan County, Texas
Trial Court # 89-3882-1,2
                                                                                                   Â
O P I N I O N
                                                                                                   Â
      Angela Chapman instituted this action to terminate Arms Chapman's parental rights with regard to their child, W.A., alleging that termination of the parent-child relationship was in the best interest of the child and that Arms had failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition. In a non-jury trial, the court found that Arms (1) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months; and (2) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition. The court further found that termination of the parent-child relationship was in the best interest of the child. As a result of these findings, the court entered a decree of termination from which Arms now appeals. Because the court failed to appoint a guardian ad litem to represent the interests of the child, and because the interests of the child were not adequately represented by a party to the suit whose interests were not adverse to those of the child, we reverse the decree of termination.
      In point six Arms contends that the court erred in failing to appoint a guardian ad litem to represent the child. Section 11.10(a) of the Texas Family Code provides:
(a) In any suit in which termination of the parent-child relationship is sought, the court or a master shall appoint a guardian ad litem to represent the interests of the child, unless the child is a petitioner or unless an attorney ad litem has been appointed for the child or unless the court or a master finds that the interests of the child will be represented adequately by a party to the suit and are not adverse to that party.
      Angela argues that, because Arms failed to request findings of fact pursuant to Rule 296 of the Texas Rules of Civil Procedure, a finding "that the interests of the child will be represented adequately by a party to the suit and are not adverse to that party" should be presumed in support of the judgment. The mandatory finding required by section 11.10(a) is not, however, the type of finding contemplated by Rule 296, which applies to appellate review of a non-jury trial on the merits. Furthermore, the findings necessary to support the judgment in this caseâa decree of terminationâare the findings related to the best interest of the child and Arm's failure to support the child in accordance with his ability. It is the failure to comply with a mandatory statute, not the absence of findings necessary to support the judgment, that requires reversal.
      The trial court in this case neither appointed a guardian ad litem nor found "that the interests of the child will be represented adequately by a party to the suit and are not adverse to that party." Nor could such a finding have been made under the facts of the case. Neither Arms nor Angela could adequately represent the interests of the child because each party was strongly advocating his or her own interests. It would be a rare situation where the trial court could properly find that a guardian or attorney ad litem is not needed when one parent is trying to terminate the other parent's parental rights. Because there was no party in this case whose primary duty was to protect the interests of the child, we sustain point of error six.
      We reverse the judgment and remand the cause for a new trial.
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                                                                                 BOBBY L. CUMMINGS
                                                                                 Justice
Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Reversed and remanded
Opinion delivered and filed April 21, 1993
Publish
section 143.057(j) can only mean that the right of appeal is available to both sides.
Id. at 608 n.1 (internal citations omitted). Section 143.015 provides, ÂIf a fire fighter or police officer is dissatisfied with any commission decision, the fire fighter or police officer may file a petition in district court asking that the decision be set aside. Tex. Loc. GovÂt Code Ann. § 143.015 (Vernon 1999).
     Several other cases assume without addressing the question that a city can appeal under Section 143.057(j). See, e.g., City of San Antonio v. Longoria, No. 04-04-00063-CV, 2004 Tex. App. LEXIS 8426, at *2-*3, *4 (Tex. App.ÂSan Antonio Sept. 22, 2004, no pet. h.) (mem. op.); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex. App.ÂTyler 1998, no pet.); Gardner v. City of Garland, No. 05-93-01535-CV, 1994 Tex. App. LEXIS 3957, at *4-*6 (Tex. App.ÂDallas Aug. 31, 1994, no pet.) (not designated for publication).
     The sole case on which the majority relies is City of Houston v. Clark, 142 S.W.3d 350 (Tex. App.ÂHouston [14th Dist.] 2004, pet. filed). That case interprets Local Government Code Section 143.1016(j), which is worded the same as Section 143.057(j), but governs municipalities with a population of 1,500,000 or more. See Tex. Loc. GovÂt Code Ann. §§ 143.101, 143.1016(j) (Vernon 1999). Clark holds, Âwe can find nothing in the statute to suggest that the municipality . . . has any right of appeal. Clark at 352. The
14th Court cites several instances where Local Government Code Chapter 143 expressly gives the police officer the right of appeal, and concludes that the Legislature did not intend to do so in Section 143.1016(j). Id. at 353 & n.3. Those instances are better understood as showing that the Legislature knew how to limit appeals to the police officer when it intended to do so, but did not intend to do so in Section 143.1016(j) or thus in Section 143.057(j). See Byrd, 97 S.W.3d at 608 n.1.     We should hold that we have jurisdiction, and address the merits of the case. Because the majority does not, I respectfully dissent.
     Finally, I must also address the process under which the majorityÂs opinion and therefore my dissenting opinion are being issued. The normal procedure for this Court is to issue opinions on Wednesday of each week. We did so this week on October 27, 2004. Thus, under our normal procedure, no opinions would issue again until November 3, 2004, the day after the general election. However, the majority opinion and therefore this dissenting opinion are being issued on Friday, October 29, 2004. They are being treated as an exception to the regular procedures.  Though I have tried, I have been unable to obtain an explanation for the need or purpose of issuing opinions in this case at this time. Likewise, I was unable to obtain an explanation for a change in the designation of authorship of the majority opinion after the opinion was circulated. I join neither irregularity.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed October 29, 2004
[CV06]
