In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-11-00316-CV
________________
IN THE INTEREST OF G.F. AND A.P.F.
________________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 10-07-07649 CV
________________________________________________________________________
MEMORANDUM OPINION
A.N. appeals the termination of her parental rights to the minor children G.F. and
A.P.F. A.N. raises three issues concerning the representation provided by the attorney ad
litem for the children. We affirm the trial court’s judgment.
In her first issue, A.N. argues that, as the children’s mother, she has standing
under the doctrine of virtual representation to assert a claim of ineffective assistance of
counsel against the attorney ad litem. Specifically, A.N. argues that the attorney ad litem
failed to advocate for the children’s desire for reunification, and instead advocated
termination. In her second issue, A.N. contends that the attorney ad litem provided
ineffective assistance because she improperly took on a dual role as both attorney ad
litem and guardian ad litem. In her third issue, A.N. asserts that the trial court abused its
1
discretion by soliciting the attorney ad litem to assume the role of guardian ad litem,
“which palpably created a conflict of interest for the attorney ad litem, by soliciting her to
opine about the best interests of the [c]hildren, and not to advocate for the [c]hildren’s
desires.” We address A.N.’s issues together.
A party may not complain of errors that do not injuriously affect her or which only
affect the rights of others. In the Interest of T.N. and M.N., 142 S.W.3d 522, 524 (Tex.
App.—Fort Worth 2004, no pet.).
An exception exists for the doctrine of virtual
representation, which requires, among other things, that the appellant and the children
have identical interests.
Id.
The record does indicate that the children desired
reunification with A.N., but the record does not demonstrate that A.N. and the children
have identical interests. Rather, the record demonstrates, and the trial court found, that
A.N., who has a history of drug abuse, permitted the children to remain in conditions or
surroundings which endangered their physical or emotional well-being, and that A.N.
engaged in conduct or knowingly placed the children with persons engaged in conduct
that endangered the children’s physical or emotional well-being. A.N. does not challenge
the sufficiency of the evidence supporting the trial court’s findings regarding
endangerment or best interest.
A.N. does not have standing on appeal to complain on the children’s behalf about
the performance of the attorney ad litem. See id. When the case went to trial, the
Department of Family and Protective Services (“CPS”) had temporary managing
2
conservatorship of the children, which gave CPS the right to represent the children in a
legal action and to make other decisions of substantial legal significance concerning the
children. Tex. Fam. Code Ann. § 153.371(8) (West 2008).
In addition, A.N. lacks
standing to complain on her own behalf concerning the attorney ad litem. See Interest of
T.N. and M.N., 142 S.W.3d at 524-25. Accordingly, we overrule issues one and two.
We turn now to A.N.’s third issue, in which she contends that the trial court
abused its discretion by soliciting the attorney ad litem’s opinion, thereby forcing the
attorney ad litem to act as both attorney ad litem and guardian ad litem. To the extent that
A.N.’s complaint concerns an alleged conflict of interest or deficient performance on the
part of the ad litem, for the reasons stated above, A.N. lacks standing to raise the issue on
appeal.
In addition, to the extent that A.N.’s complaint concerns the trial court’s
solicitation of the ad litem’s recommendation, the record reflects that A.N. did not object
when the trial court sought the attorney ad litem’s recommendation. A.N. did not raise
the issue until she filed a motion for new trial. Therefore, A.N. has failed to preserve the
issue for our review. See Tex. R. App. P. 33.1(a). We overrule issue three and affirm the
trial court’s judgment.
AFFIRMED.
___________________________
STEVE McKEITHEN
Chief Justice
Submitted on December 14, 2011
Opinion Delivered January 12, 2012
Before McKeithen, C.J., Gaultney and Horton, JJ.
3
