CONCUR, DISSENT, and Opinion Filed April 25, 2022

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00695-CV

IN THE INTEREST OF J.N., L.N., K.N., AND M.N., CHILDREN

On Appeal from the 302nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DF-17-19715

CONCURRING AND DISSENTING OPINION

Opinion by Justice Carlyle

At least in part, Family Code § 153.009 exists because the legislature has 

determined that children over age 12 have a voice worthy of consideration in custody 

matters, and it has directed the trial courts to allow them to use that voice. Although 

I agree with my colleagues’ discussion and conclusion regarding the application’s 

sufficiency here, I would hold that violating the section’s interview requirement is 

not subject to a harm analysis on appeal, and I would make our ruling nonretroactive. I respectfully dissent from the panel’s decision to perform a harm 

analysis,1and would reverse.

1

I do not disagree with the majority that ample evidence supports the trial court’s ultimate custody 

determination, and the trial court may very well have acted rationally in declining to interview the child on 

the basis that the interview would not likely affect the trial court’s decision as to Mother.
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As an initial matter, we have no direct guidance from the supreme court on 

this issue. The majority fills that void by citing to a juvenile criminal case as support 

for using a harm analysis here. See slip op. at 12 (discussing In re D.I.B., 988 S.W.2d 

753, 757–59 (Tex. 1999)). In D.I.B., the supreme court held that a trial court’s failure 

to follow a statute—requiring a juvenile court to explain that the record of 

adjudication in that proceeding may be used in the punishment phase of a future 

criminal proceeding—was subject to a harm analysis. In re D.I.B., 988 S.W.2d at 

757–59 (citing TEX. FAM. CODE § 54.03(b)(2)). The court began its analysis by 

moving its focus towards criminal law, noting that “[j]uvenile proceedings are quasicriminal in nature.” Id. at 756. 

With an appropriate criminal-law focus, the court then relied on numerous 

court of criminal appeals precedents concluding that the failure to give certain 

admonishments in adult guilty plea proceedings was subject to harm analysis. And 

this makes a lot of sense. The question in D.I.B. was whether the failure to give a 

required admonishment was something a harm analysis could meaningfully address. 

In that case, D.I.B. had pled “not true” to murder, exercised the right to a jury trial, 

presented a defense, and was found guilty by a jury. That record gave the supreme 

court “no indication” that had the court admonished D.I.B. of the future potential 

uses of the record of adjudication, “she would have been able to avoid an 

adjudication of delinquency,” that she “was offered and would have accepted” a plea 

agreement, or that without the admonishment, she was not fully apprised of the 
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consequences of refusing the plea offer. Id. at 759. This follows from the common 

notion that the failure to give every statutorily required guilty plea admonishment in 

criminal cases can be saved by a harm analysis. Id. at 757. 

But contrary to the family code section at issue here, the criminal code itself 

includes a harmless error provision, stating that a trial court’s “substantial 

compliance” is sufficient “unless the defendant affirmatively shows that he was not 

aware of the consequences of his plea or that he was misled or harmed by the 

admonishment of the court.” TEX. CODE CRIM. PROC. art. 26.13(c).

In contrast, § 153.009(c) says the child’s statement does not diminish the trial 

court’s exercise of discretion in making its ultimate conclusion. We are bound to 

consider words and phrases in context and within the statute as a whole so that no 

provision is rendered meaningless or mere surplusage. See TIC Energy & Chem., 

Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). To approve using a harm analysis on 

appeal when a trial court fails to comply with the child interview portion of 

§ 153.009(a) renders subsection (c) meaningless. If the court hasn’t interviewed the 

child, there’s no need for a subsection stating that the child’s statements do not 

reduce its discretion. In effect, the legislature has instructed both us and the trial 

court that an interview must take place even if a child’s statement would not 

influence the trial court’s decision. Thus, in this circumstance, by concluding the 

appellate rules require a harm analysis, we render the subsection (c) guarantee 

meaningless surplusage.
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Moreover, the legislature knows how to save a potentially void order for a trial 

court’s failure to follow a mandatory statute in the family-law context. Family Code 

§ 263.302, governing permanency hearings, says the “child shall attend each 

permanency hearing unless the court specifically excuses the child’s attendance” and 

that court “shall consult with the child in a developmentally appropriate manner 

regarding the child’s permanency plan.” But that statute concludes, “Failure by the 

child to attend a hearing does not affect the validity of an order rendered at the 

hearing.” We have no such saving language here.

Further, the guarantee at issue here is to a child in a proceeding to decide that 

child’s primary home. When the law promises things to children, we should honor 

those promises. I can’t help but imagine a 13-year-old child whose world is already 

upending due to her parents’ divorce. She hears from the lawyer: if you want to speak 

to the judge, the judge has to listen to you. And no, you don’t have to do it in open 

court, the legislature has created this mandatory procedure for you to connect 

directly with the judge. In some children, this must create a certain sense of optimism 

and relief, and in any child (even those who choose not to speak), it fosters the idea 

that the system respects the child’s voice at this difficult time. Notably, the seminal

case on ascertaining a child’s best interests, Holley v. Adams, 544 S.W.2d 367, 371–

72 (Tex. 1976), lists “the desires of the child” first among the nine non-exclusive 

factors. In my view, this statute plays a unique role in our system of laws, and 
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declining to perform the harm analysis helps, however little, to foster children’s 

trusting the courts from their likely earliest interactions. 

I come to this conclusion with open eyes that these child testimony statutes 

have been subject to intense debate around the country and that thought leaders in 

the field question whether these statutes are good for children. See Debra Lehrmann, 

The Child’s Voice, An Analysis of the Methodology Used to Involve Children in 

Custody Litigation, 65 TEX. B.J. 882 (Nov. 2002). Texas Supreme Court Justice (and 

then-trial judge) Lehrmann recognized this debate and noted in this excellent 2002 

article that trial judges who decline a child’s stated preference should make time to 

discuss the decision with the child after the court makes its orders to provide proper 

closure and to give appropriate perspective to the child. Id. at 889. But the legislature 

made the determination that children have a voice in court in this situation, and we 

in the appellate courts are duty bound to continue the child-centric focus of this area 

of the law.

Of note, § 153.009 is not limited to the typical divorce context: perhaps the 

trial court is faced with awarding nonparents conservatorship, see FAM. CODE

§§ 153.371–.377, or when both parents are deceased and grandparents, aunts, or 

uncles are in the conservatorship mix, see id. §§ 153.431–.434. We would not want 

a different § 153.009 appellate review rule for these situations, when performing a 

harm analysis could be exceptionally complicated without the substance of the 

child’s wishes.
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And so, when the focus of the proceeding is the best interests of the child, see

FAM. CODE § 153.002, and when a statute requires the judge to allow the child to 

present her statement on a pivotal issue in the case, refusing to allow the child to do 

so implicates the core of the proceeding and the core of reliance interests the 

legislature created for the children of this state. Given that, I believe a harm analysis 

is inappropriate.

Finally, if this Court is to undertake a proper harm analysis, it must be able to 

consider what the child said or would have said.2 See TEX. R. APP. P. 44.1(a)(2) 

(prohibiting reversal for legal error unless court of appeals “concludes that the 

error . . . probably prevented the appellant from properly presenting the case to the 

court of appeals”). Because the record does not indicate what the child would have 

said, we cannot perform a proper harm analysis. As noted, Holley factor number one 

is “the desires of the child.” 544 S.W.2d at 372. There is a greater-than-zero number 

2 Perhaps, in this vein, if the party petitioning for the over 12-year-old to testify had made a bill of 

exception or offer of proof, where the child outlined the testimony she would have given the judge, we 

could be in a different spot. This is the approach several sister courts have suggested could resolve the 

matter. See In re C.S., No. 04-20-00421-CV, 2021 WL 5496159, at *1–4 (Tex. App.—San Antonio Nov. 

24, 2021, no pet.) (mem. op.); In re T.A.L., Nos. 07-17-00274, 00275-CV, 2018 WL 3862994, at *3 (Tex. 

App.—Amarillo Aug. 14, 2018, pet. denied) (mem. op.); In re A.S., No. 11-14-00154-CV, 2015 WL 

582013, at *4 (Tex. App.—Eastland Feb. 5, 2015, no pet.) (mem. op.); In re N.W., No. 02-12-00057-CV, 

2013 WL 5302716, at *10 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.). 

But this method works counter to the purpose of having a child interview take place outside the parties’ 

view and in chambers. The very nature of having a child speak directly to the judge is so the child speaks 

to the judge. Having a lawyer recount what the child has told the lawyer for an offer of proof lacks the 

potential depth a judge’s interview with the child may have. See Lehrmann, 65 Tex. B.J. at 889. It also calls 

into question the accuracy of the offer, as it is entirely possible—if not probable—that what a child tells his 

or her parent’s lawyer may not be the same as what the child might tell the judge in private. Nevertheless, 

if we required this error preservation, in my eyes a practice counter to § 153.009, and if the depth of the 

child’s statement appeared in the record, we could more properly perform a harm analysis. 
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of statements the child could have made in the interview to cause the trial court to 

think differently about the evidence before it. Yet, an appellant cannot point to those 

statements in the record. And thus, at the very least, the trial court’s refusal to hear 

from the child has “probably prevented the appellant from properly presenting the 

case to the court of appeals.” TEX. R. APP. P. 44.1(a)(2).

For this reason too, I am not swayed by the criminal harmless error precedent: 

appellate rule 44.2 allows for harmless error affirmance on different standards than 

rule 44.1 does, and we read the two rules separately. The existence of separate 

reversible error rules for criminal and civil cases leads me to the conclusion that we 

have different guidelines in civil and criminal cases, however slight. And in giving 

meaning to the existence of separate rules, their application may diverge in some 

cases. I view this as one of those cases, and for this reason as well, decline to rely on 

In re D.I.B.

Finally, one appellate court concluded that a trial court’s failure to interview 

a child was harmless because the trial court stated it did not feel that the interview 

would be helpful, and it appeared to the appellate court that the trial court declined 

to do so “to avoid the child’s unnecessary involvement in the proceeding.” In re C.B., 

No. 13-11-00472-CV, 2012 WL 3139866, at *6 (Tex. App.—Corpus Christi–

Edinburg Aug. 2, 2012, no pet.) (mem. op.). We do not have that indication here. 

Other courts have concluded an application was too late and thus the trial court could 

have concluded that the party applying for the interview had done so for the purpose 
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of delay. See In re J.G.M., No. 09-11-00368-CV, 2012 WL 1951119, at *3 (Tex. 

App.—Beaumont May 31, 2012, no pet.) (mem. op.); In re N.W., 2013 WL 5302716, 

at *10; Hamilton v. Hamilton, 592 SW.2d 87, 88 (Tex. App.—Fort Worth 1979, no 

writ). To those holdings, I note that the statute includes no timeliness provision, and 

I question whether an appellate court has authority to insert one.

* * *

We can avoid error-preservation, meaninglessness or surplusage, and, above 

all, clear statutory purpose problems by energizing the bright-line rule the legislature 

gave us. This is not an amorphous concept whose application could change from 

case to case, see In re M.S., 115 S.W.3d 534, 538–39 (Tex. 2003) (admitting judge’s 

prior findings that party had violated judge’s orders was harmless), but instead is 

subject to simple, mechanical application. I respectfully dissent from the holding 

that we should perform a harm analysis for a trial court’s failure to interview a child 

after proper application pursuant to Family Code § 153.009.

200695f.p05

/Cory L. Carlyle/

CORY L. CARLYLE

JUSTICE