In the Interest of M.B., a Child v. the State of Texas

Summary

The Texas Court of Appeals, Second Appellate District, reversed the denial of grandparents’ petition to terminate the parental rights of a child’s biological parents and the related dismissal of the adoption petition. The court held that the trial court violated Texas Family Code Section 107.021(a-1) by failing to appoint an amicus attorney or attorney ad litem, despite finding that the child’s interests were not otherwise represented. The case was remanded for a new trial.

Holdings

1. Under Texas Family Code section 107.021(a-1), a trial court in a private termination suit must appoint an amicus attorney or attorney ad litem unless it finds that the child's interests will be adequately represented by a party whose interests are not in conflict with the child's interests. Because the trial court expressly declined to make the required finding and did not appoint either advocate, it violated its statutory duty.
2. A trial court's failure to comply with section 107.021(a-1) when appointment is required is reversible error that cannot be treated as harmless.
3. A trial court's failure to comply with section 107.021(a-1) may be raised for the first time on appeal.

Questions Presented

1. Whether the trial court abused its discretion by determining that termination of the biological parents' parental rights was not in M.B.'s best interests.
2. Whether the trial court was required under Texas Family Code section 107.021(a-1) to appoint an amicus attorney or attorney ad litem before determining M.B.'s best interests in the private termination proceeding.
3. Whether the trial court's failure to comply with section 107.021(a-1) constituted reversible, nonharmless error that could be raised for the first time on appeal.

Disposition

reversed_and_remanded