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

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 . . ." 

The failure of a trial court to either (i) "appoint an amicus or ad litem attorney for the children" or (ii) "to make an affirmative finding that the children's interests can be adequately represented by one of the parties and are not in conflict with that party's interests" constitutes reversible error. See e.g., Chapman v. Chapman, 852 S.W.2d 101, 102 (Tex. Ct. App. 1993); In the Interest of J.C. and J.C., No. 02-23-00381-CV, 2024 WL 1480490 at *3 (Tex. Ct. App. Apr. 5, 2024). 

Regarding the affirmative finding, the appellate court has noted that because the parents are litigating their personal interests, "the trial court can seldom find that one party adequately represents the interests of the children involved or that their interests are not adverse.” In re D.M.O., No. 04–17–00290–CV, 2018 WL 1402030 at *3 (Tex. Ct. App. Mar. 21, 2018) [quoting In re K.M.M., 326 S.W.2d 714, 715 (Tex. Ct. App. 2010)]. 

In D.M.O., the court found that the trial court should have appointed counsel, notwithstanding the fact that the child allegedly supported the termination of parental rights, because the parents were clearly adversarial.  It remanded for a trial trial and stated:

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.’

Id. at *4 (quoting In re K.M.M., 326 S.W.3d at 716).