Marriage of Linan v. Linan

OPINION ON MOTION FOR REHEARING

Appellant, in his motion for rehearing, brings as his only ground a point of error not heretofore argued, which appellant urges this Court to consider in the interest of justice. Appellant’s new contention is that the trial court committed reversible error in failing to appoint a guardian ad litem to represent the interest of the child.

This Court is authorized to permit the filing of amended briefs, including additional points of error not originally presented, even after submission and the rendition of an opinion. Rule 431, T.R.C.P.; Minneapolis-Moline Company v. Purser, 361 S.W.2d 239, 246 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.) and cases cited therein. However, it is clear that it is not mandatory that this Court accept such an amendment, especially where appellant seeks to completely change the grounds of his appeal. King v. Cron, 285 S.W.2d 833 (Tex.Civ.App.—San Antonio 1956, writ ref’d n. r. e.), cert. denied 352 U.S. 843, 77 S.Ct. 67, 1 L.Ed.2d *15759 (1956); Rodriguez v. Morgan, 584 S.W.2d 558 (Tex.Civ.App.—Austin 1979, writ ref’d n. r. e.).

In the instant case, the appellant neither requested the appointment of a guardian ad litem nor objected to the failure of the trial court to make such an appointment. No motion for new trial was filed. Appellant did not address such failure as a point of error in his original brief, nor did he seek leave to amend or rebrief this point after submission, even though this Court asked appellant’s counsel if such a guardian ad litem had been appointed.

Tex.Fam.Code Ann., § 11.10 provides in applicable part:

“(a) In any suit in which termination of the parent-child relationship is sought, the court shall appoint a guardian ad litem to represent the interest of the child, unless the child is a petitioner or unless an attorney ad litem has been appointed for the child or unless the court finds that the interests of the child will be represented adequately by a party to the suit and are not adverse to that party..."

In the instant cause, we had a “voluntary” termination proceeding. There was no contest over conservatorship. The motion for termination was consolidated for hearing with a motion for contempt served on the appellant for failure to pay court-ordered support for the child in question. The child’s adoptive mother was represented by the attorney for the Department of Human Resources, who vigorously questioned appellant regarding his reasons for termination and brought out the ultimate effects of termination, i.e., that the child would be both without a father and without the support which the trial court had previously determined the child entitled to. The record before this Court does not reflect that the interests of the child were not adequately represented.

Because neither party requested an appointment or objected to the failure of the trial court to appoint a guardian ad litem, we may, and we do, assume that the trial court made all rulings necessary for its judgment, i.e., that the child was adequately represented by a party to the suit (here, the child’s mother) whose interests were not adverse to the child. Appellant has waived any error regarding such a ruling by his failure to bring the point on appeal, and by his failure to object at the trial court level.

Appellant’s motion for rehearing is overruled.