Texas court: when parents square off in private termination case, kids must have counsel

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03/23/2018, Legislation, Termination of Parental Rights (Private) - Children

Tex. Fam. Code Ann. § 107.021(a-1) provides that a court must appoint an "amicus attorney" or attorney ad litem for the child in a private termination of parental rights case "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 . . ." 


In In re D.M.O., 2018 Tex. App. LEXIS 1992 (Tex. App. 2018), the Court of Appeals noted, “Several courts have determined that where one parent sued another parent to terminate his or her parental rights to their child, the trial court could not properly find that the child's interests were adequately represented by a party to the suit", since the parents are litigating their personal interests.  It then held that given the parents were clearly adversarial and notwithstanding the fact that the child allegedly supported termination of parental rights, the trial court should have appointed counsel.  


THe D.M.O. court then held the matter had to be remanded for a new trial:


Due to the serious nature of parental termination proceedings and the important role of amicus and ad litem attorneys in assisting the trial court in making a best interest determination in contested termination suits, a trial court's failure to appoint an attorney ad litem or amicus attorney when required to do so ‘is error that cannot be treated as harmless.’

Appointment of Counsel: categorical Qualified: yes