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holding an appellant waived her objection to the absence of a purportedly indispensible party at trial because the appellant did not object until her motion for new trial
Summary of this case from In re L.M.D.Opinion
No. 04-05-00927-CV
Delivered and Filed: August 9, 2006.
Appeal from the 57th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-PA-00622, Honorable John J. Specia, Judge Presiding.
Associate Judge Richard Garcia presided over the termination hearing.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
After the trial court terminated Amy Whitlow's parental rights to her daughter, D.W., Whitlow moved for a new trial and filed a statement of her appellate points. The trial court found all Whitlow's appellate points frivolous. See Tex. Fam. Code Ann. § 263.405 (d)(3) (Vernon Supp. 2005). On appeal, Whitlow argues "[t]he trial court erred in finding [her] appeal points to be frivolous, because the court should have recognized that [D.W.'s] attorney/guardian [ad litem] was an indispensable party to the lawsuit, and so, should not have proceeded to trial without her." We disagree.
To preserve error, a party must make a timely and specific objection. Tex.R.App.P. 33.1. Whitlow did not object to the absence of D.W.'s attorney/guardian ad litem until her motion for new trial. But, the termination hearing, not the motion for new trial, was the appropriate point for Whitlow to have raised her complaint because it represented the first opportunity the court had to cure the alleged error. Since Whitlow did not raise the issue the first time that it made sense to do so, she has waived her complaint on appeal. See In re S.E.W., 168 S.W.3d 875, 885 (Tex.App.-Dallas 2005, no pet.) (holding that mother who did not object at any stage of the trial proceedings to the reliability of expert testimony and instead who raised the issue for the first time in her motion for new trial waived the error).
The trial court's judgment is affirmed.
DISSENTING OPINION
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.