NO. 07-10-0083-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 21, 2010

In the Interest of K. M.M. and E.J.G., Children

__________________ _________ FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

NO. 10,341; HONORABLE STUA RT MESSER, PRESIDING
Opinion

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ. Santiago Jimmy Montoya (Jimmy) challeng es the legal and fa ctual sufficiency of the evidence underlying the decision to terminat e the parental relationship between him and E.J.G. He also complains of the failure of the trial court to appoint an attorney ad litem or amicus attorney for the child. We address only the latter issue for it is dispositive of the appeal, and upon addressing it, reverse the j udgment. Section 107.021 of the Texa s Family Code states that: [i]n a suit requesting termination of t he parent-child relationship that is not filed by a governmental entity, the court shall, unless the court finds that the interests of th e child will be represented adequately by a party to the suit whose interests are not in conf lict with the child’s interests, appoint one of the following:2 (1) an amicus attorney; or (2) an attorney ad litem. T EX

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. §107.021(a-1) (Vernon 2008). Katrina alleged in her second amended petition for divorce (through which document she also sought termination of the parent-child relationship) that she could adequately represent the interest s of E.J.G. and that her in terests did not conflict with those of the child. Jimmy generally denied the allegations contained in that amended petition but also averred that he was the pr esumed father of the youth and that the boy should be appointed a guardian ad litem. Upon searching the record, we found no order appointing the child either a guardian ad litem, an amicus attorney, or an attorney ad litem. Furthermore, neither parent suggest ed that any such appointment was made. Also missing from the re cord is any finding that Katrina would or could adequately represent E.J.G. The latter is pr oblematic because without such a finding, the appointment of either an am icus attorney or attorney ad litem was mandatory. See In re M.D.S., 1 S.W.3d 190, 195 (Tex. App.–Amarillo 1999, no pet.) (discussing a prior version of §107.021(a-1) of the Fa mily Code with si milar language); see also In the Interest of R.J.C., No. 04-09-0106-CV, 2010 Tex. App. L EXIS 1686 at *8-9 (Tex. App.– San Antonio March 10, 2010, no pet.) (discu ssing §107.021(a-1)). Indeed, it has been recognized that where parents are adversaries in a suit to terminate one parent’s rights, the trial court can seldom find that one party adequately represents the interests of the children involved or that thei r interests are not adverse. In re M.D.S., 1 S.W.3d at 195 n.2; Barfield v. White, 647 S.W.2d 407, 409 (Tex. App.–Austin 1983, no writ).3 Moreover, the failure to abide by §107.021 may be raised for the first time on appeal. Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.–Austin 1983, no writ) (discussing former §11.10 of the Family C ode, a provision contai ning similar language); Arnold v. Caillier, 628 S.W.2d 468, 469-70 (Tex. App. –Beaumont 1981, no writ) (d iscussing the same). Katrina nonetheless urges us to imply that the trial court made the requisite finding and concluded that a home study conducted before the court terminated Jimmy’s parental rights constitu ted the appointment of a disinterested party to represent E.J.G. Yet, we can do neither. Because no specific finding entered by the trial court encompassed an element of whether Katrina could adequate ly represent E.J.G., no finding may be implied on the matter. Turner v. Lutz, 654 S.W.2d at 58. Furthermore, the legislature mandated the appoi ntment of an attorney unle ss the requisite finding was made. That mandate said nothi ng about a home study being sufficient, and we care not to rewrite the statute ourselves . So too do the duties of an attorney ad litem or amicus lend further basis for rejecting Katrina’s argument. They inclu de the obligation to participate in the conduct of the litigation to the same extent as an attorney for a party. T EX

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. §107.003 (1) (F) (Vernon 2008). Nothi ng of record illustrates that the entity conducting the hom e study at bar had or was granted such authority or opportunity. Simply put, the failure to comply with §107.021 is error that cannot be treated as harmless due to the serious nature of the proceedings involved. In re M.D.S., 1 S.W.3d at 195. Accordingly, we reverse that por tion of the final judgment that orders the4 termination of the parental relationship between E.J.G. and Santiago Jimmy Montoya and remand it for a new trial. 1 The remainder of the fi nal judgment is affirmed.

Brian Quinn Chief Justice

1 To the extent that Katrina questions Jimmy’s st anding to seek the adjudication of himself as a parent because she alleged he was not, we note that he averred in answer to her petition that he was the “presumed” father. More importantly, in granting th e spouses a divorce, the trial court found that two children were born to the marriage, one of whom was E. J.G. No one attacked that fact finding in the divorce decree. And, no one can reasonably dispute t hat a biological father generally has standing to intervene in an effort to terminate the parent-child relationship between him and his children. See T EX

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. C ODE A NN . §102.003(a)(1) (Vernon 2008) (stating that the parent of a child has standing to file a petition in a suit affecting the parent-child relationship); T EX

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. C ODE A NN . §101.024(a) (stating that a parent includes a man adjudicated to be the father).