Friday, August 11, 2006
Case Law Development: Failure to Object to Absence of Attorney for Child in TPR Actions Precludes Later Appeal on that Basis
In a brief opinion, the Texas Court of Appeals raises yet another issue in the debate over how vigorously courts will enforce the child's right to representation in termination actions. The court upheld the termination of a mother's parental rights, finding that her failure to object to the absence of the child's attorney ad litem at the termination hearing waived her right to raise the issue on appeal. Dissenting Chief Justice Lopez was troubled by this outcome. She pointed out that, while the court did appoint a substitute attorney ad litem upon the failure of the original attorney to appear, the termination hearing was nonetheless heard that same day. Her dissent argues that, "Implicit in the mandatory requirement that an attorney ad litem be appointed is the requirement that the ad litem be present at the hearings in order to represent the child's interest. Just as a court's error in failing to appoint an ad litem can be raised for the first time on appeal... the ad litem's failure to appear at a hearing also should be permitted to be raised for the first time on appeal."
In the Interest of D.W., 2006 Tex. App. LEXIS 7005 (TEx App 4th Dist san antonio August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)