In the Interest of D.W., A Child--Appeal from 57th Judicial District Court of Bexar County

DISSENTING OPINION

No. 04-05-00927-CV

IN THE INTEREST OF D.W., a Child

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-PA-00622

Honorable John J. Specia , Judge Presiding (1)

Opinion by: Sarah B. Duncan , Justice

Dissenting opinion by: Alma L. L pez , Chief Justice

Sitting: Alma L. L pez , Chief Justice

Sarah B. Duncan , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: August 9, 2006

The order of termination recites that the termination case was heard on August 4, 2005, and the ad litem appointed to represent the child failed to appear. Although the trial court apparently appointed a substitute ad litem on the day of the hearing who signed the order approving it as to form, I question whether the substitute ad litem could have been prepared for the hearing on the date she was appointed. Furthermore, no ad litem was present at the "Re-Hearing on the Merits" also held on August 4, 2005.

Termination of parental rights is a drastic remedy, involving fundamental constitutional rights. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980), In re S.M.L.C., 115 S.W.3d 30, 31 (Tex. App.--San Antonio 2003, no pet.). For this reason, the Texas Family Code mandates that an attorney ad litem be appointed to represent the interest of the child. Tex. Fam. Code Ann. 107.012 (Vernon Supp. 2005); Gaitan v. Blevins, No. 04-95-00070-CV, 1996 WL 165529, at *2 (Tex. App.--San Antonio Apr. 10, 1996, no pet.) (noting mandatory nature of statute). Implicit in the mandatory requirement that an attorney ad litem be appointed is the requirement that the ad litem be present at the hearings in order to represent the child's interest. Just as a court's error in failing to appoint an ad litem can be raised for the first time on appeal, see Turner v. Lutz, 654 S.W.2d 57, 58 (Tex. App.--Austin 1983, no writ), the ad litem's failure to appear at a hearing also should be permitted to be raised for the first time on appeal. Because the majority holds that the failure to object to the absence of the ad litem waived this complaint, I respectfully dissent.

Alma L. L pez , Chief Justice

1. Associate Judge Richard Garcia presided over the termination hearing.