Trial Court’s Failure to Appoint Representative for Child in Private Termination Suit Constitutes Reversible Error
In the Interest of M.B., a Child, 02-25-00614-CV, March 19, 2026.
On appeal from the 322nd District Court, Tarrant County, Texas.
Synopsis
The Second Court of Appeals held that a trial court’s failure to appoint an amicus attorney or attorney ad litem in a private termination suit, as mandated by Texas Family Code Section 107.021(a-1), constitutes reversible error. Because the trial court did not make an express finding that a non-conflicted party adequately represented the child’s interests, the appointment was a non-discretionary statutory duty that cannot be subjected to a harmless error analysis.
Relevance to Family Law
This decision serves as a critical reminder for practitioners involved in private termination and adoption proceedings—including those arising out of high-conflict custody or grandparent intervention—that procedural adherence to Chapter 107 is jurisdictional in its impact on the stability of a judgment. For the litigator, this means that even a “win” on the merits regarding the child’s best interests is structurally unsound and subject to automatic reversal if the statutory requirement for independent representation is ignored. In any suit where parental rights are at stake, the absence of an ad litem or amicus, without a specific “no-conflict” finding on the record, renders the entire trial a nullity upon appellate review.
Case Summary
Fact Summary
Appellants, the child’s grandparents, sought to terminate the parental rights of the biological mother and father to facilitate an adoption. Following a bench trial, the 322nd District Court of Tarrant County denied the petition for termination, concluding that termination was not in the child’s best interests. However, during the pendency of the suit, the trial court failed to appoint an amicus attorney or an attorney ad litem to represent the child’s interests. In its subsequent findings of fact and conclusions of law, the trial court expressly acknowledged that the child’s interests were not represented by any party or appointed counsel. Compounding the error, the trial court suggested that the failure to secure such an appointment was a failure of the Grandparents to satisfy a “necessary legal element” of their case. The Grandparents appealed, challenging the best-interest determination and the procedural vacuum in which it was made.
Issues Decided
- Whether the trial court’s failure to appoint an amicus attorney or attorney ad litem in a private termination suit pursuant to Texas Family Code Section 107.021(a-1) is an abuse of discretion.
- Whether such a failure constitutes reversible error that can be raised for the first time on appeal and is not subject to a harmless error analysis.
Rules Applied
- Texas Family Code § 107.021(a-1): In a suit in which the termination of the parent-child relationship is requested, the court shall appoint an amicus attorney or an attorney ad litem unless the court finds that the child’s interests will be represented adequately by a party whose interests are not in conflict with the child’s.
- Texas Government Code § 311.016(2): The use of the word “shall” in a statute imposes a mandatory duty.
- Stare Decisis (In re K.M.M., In re J.C.): Precedent establishes that the failure to appoint a mandatory representative in a termination suit is error that cannot be treated as harmless due to the constitutional magnitude of the parental rights involved.
Application
The Second Court of Appeals focused on the mandatory nature of Section 107.021(a-1). The court noted that the statutory language “shall” leaves the trial court with only two options: appoint a representative or make a specific finding of adequate, non-conflicted representation by an existing party. Here, the trial court did neither. In fact, the trial court’s own findings of fact admitted that the child’s interests were unrepresented. The Court of Appeals rejected the trial court’s framing of the appointment as a “legal element” for the petitioners to prove. Instead, the court clarified that the duty is squarely on the trial court itself. Because the litigation involved adverse parents and grandparents, the court noted that it is rare—and was certainly not the case here—that any party could adequately represent the child’s independent interests without conflict. The court concluded that proceeding to a best-interest determination without the required statutory protections was a fundamental error.
Holding
The court held that the trial court committed reversible error by determining the child’s best interests without the appointment of an amicus attorney or attorney ad litem. The court emphasized that the mandatory nature of Section 107.021(a-1) ensures that the child’s voice and interests are protected in the highest-stakes litigation provided for in the Family Code.
The court further held that this error cannot be treated as harmless. Given the “serious nature of parental termination proceedings,” the absence of a required ad litem or amicus—who would have interviewed the child, investigated the facts, and elicited the child’s objectives—deprives the trial court of the necessary evidence to reach a valid best-interest determination. Consequently, the judgment was reversed, and the case was remanded for a new trial.
Practical Application
For the family law practitioner, this case emphasizes the necessity of “policing the judge” to ensure statutory compliance. If you represent a petitioner in a private termination, you must insist on the appointment of an amicus or ad litem early in the proceedings. Do not rely on the court’s discretion; the failure to have a representative appointed creates a “poison pill” in your record that a respondent can use to vacate a favorable judgment on appeal. Conversely, if you represent a respondent parent and the court fails to appoint an amicus, you may have a potent appellate issue even if you did not object at trial, as this case confirms the error can be raised for the first time on appeal.
Checklists
Ensuring Judgment Finality in Private Terminations
- Confirm the suit involves a request for termination of parental rights under the Texas Family Code.
- Verify whether the suit is “private” (non-governmental).
- Review the file for an Order Appointing Amicus Attorney or Attorney Ad Litem.
- If no appointment has been made, request a formal hearing to either:
- Secure the appointment of a qualified representative.
- Obtain a specific, written finding of fact that a party to the suit adequately represents the child’s interests and has no conflict of interest.
- Ensure that the appointed representative actually participates in the trial, interviews the parties, and investigates the best-interest factors.
Mitigating Reversal Risk During Trial
- Avoid “implied findings” of representation; insist on express findings in the Final Order or Findings of Fact.
- If the trial court expresses reluctance to appoint an amicus due to costs, cite Section 107.021(a-1) and In re M.B. to clarify that the appointment is a mandatory statutory duty, not a discretionary one.
- Ensure the record reflects that the child’s “expressed objectives” were considered by the court through the appointed representative.
Citation
In the Interest of M.B., a Child, No. 02-25-00614-CV, 2026 WL ______ (Tex. App.—Fort Worth Mar. 19, 2026, no pet. h.).
Full Opinion
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