X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Russell Craig Collins is the father of S.E.E., although he was never married to S.E.E.’s mother. On May 23, 2000, the 387th District Court of Fort Bend County issued an agreed order appointing S.E.E.’s parents as joint managing conservators but granting S.E.E.’s mother the exclusive right to determine S.E.E.’s primary residence. Moreover, “[t]he conservator designated with the primary physical residence of the child” was given the exclusive “power to represent the child in legal action and to make other decisions of substantial legal significance concerning the child including the right to establish the primary residence of the child . . . .” S.E.E. resided with her mother. On March 28, 2007, S.E.E.’s mother was killed in a fire in a Houston office building. Within two days, Collins sought legal counsel to pursue S.E.E.’s claims arising from her mother’s death. Collins consulted attorneys Tom Rowatt and James Doyle, and he retained the firm of Williams Kherkher to represent S.E.E. In his asserted capacity as S.E.E.’s next friend, Collins intervened in a suit filed in the 133rd District Court of Harris County by unrelated plaintiffs seeking damages arising from the same fire in which S.E.E.’s mother was killed. But two days before Collins intervened in that suit, S.E.E.’s maternal grandfather, who also purported to act as S.E.E.’s next friend, filed an original wrongful death suit in the 152nd District Court of Harris County. Both maternal grandparents also asserted their own claims for damages. On April 23, 2007, the grandparents obtained an ex parte temporary restraining order in the 387th District Court of Fort Bend County. The trial court deleted the grandparents’ proposed provision that would have restrained Collins from “filing legal causes of action or making legal decisions on behalf of the child or the interest in her deceased mother’s estate” and granted the requested temporary restraining order without further change. The next day, the grandparents filed a Petition to Modify the Parent-Child Relationship seeking sole managing conservatorship of S.E.E., and they again asked the trial court to restrain Collins from filing legal causes of action or making legal decisions on S.E.E.’s behalf. The trial court set a hearing for May 23, 2007, to determine, inter alia, whether to issue a temporary injunction and whether the grandparents “should be appointed the temporary conservator[s] who ha[ve] the right to designate the primary residence of the child with the rights and duties of a sole managing conservator including the exclusive right to make all legal decisions including, but not limited to, filing lawsuits.” In the meantime, Collins filed a counter-petition in which he also sought sole managing conservatorship of the child. The hearing, originally set for May 23, 2007, was apparently postponed for a week. On May 30, 2007, the trial court appointed Chad P. Ellis as an amicus attorney “to provide legal services necessary to assist the Court in protecting the best interests of” S.E.E. The trial court ordered the grandparents and Collins each to deposit $1,000 with Ellis, gave Ellis the right to bring suit on behalf of S.E.E., and further ordered the grandparents and Collins to cooperate with Ellis. At a further hearing on June 26, 2007, the trial court ordered Collins and the grandparents to cease prosecuting litigation on behalf of S.E.E. In his asserted capacity as S.E.E.’s next friend, the amicus attorney retained Mark Lanier to act as S.E.E.’s attorney of record. Lanier filed an original suit in County Court-at-Law No. 3 of Fort Bend County seeking damages for the death of S.E.E.’s mother; however, the parties report that the Fort Bend wrongful death suit was subsequently dismissed and refiled in Harris County. On July 16, 2007, the trial court signed temporary orders appointing Collins and the grandparents joint managing conservators, and the court awarded the grandparents “the exclusive right to designate the primary residence of the child . . . .” Collins then sought mandamus relief to compel the trial court to vacate those portions of its orders that permitted Ellis to act as S.E.E.’s next friend, hire legal counsel for her and be paid for services performed in connection with litigation. Collins filed a petition for a writ of mandamus compelling Judge Robert J. Kern to strike: 1. that portion of his temporary orders requiring Collins to cease prosecuting his minor daughter’s wrongful death claims as her next friend; and 2. that portion of the trial court’s order dated May 30, 2007, in which the trial court appointed an amicus attorney to act as next friend to Collins’ minor daughter. HOLDING:The court conditionally granted the writ of mandamus. The grandparents argued that Collins’ mandamus petition must be denied, because his attorney stated during the temporary custody hearing that he “respected the trial court’s order concerning the powers of the amicus attorney.” The court disagreed that this conduct constituted a judicial admission and overruled the issue. Collins argued simply that as S.E.E.’s father, he was authorized to assert S.E.E.’s wrongful death claims as S.E.E.’s next friend. The court agreed, finding that the mother’s rights to establish S.E.E.’s residence and to exercise S.E.E.’s legal rights were extinguished upon her death. At that time, the court stated, the right to take legal action on S.E.E.’s behalf passed to Collins as her only surviving parent. The court therefore concluded that Collins acted within his authority in asserting his daughter’s claims. Next, the court noted that in a suit affecting the parent-child relationship, an amicus attorney may be appointed to assist the court in determining the best interests of the child. “Amicus attorney,” the court stated, means an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child. Thus, Collins argued that the trial court was not authorized to appoint Ellis to act as S.E.E.’s next friend, to hire counsel for her or to be paid for work in other litigation in which she is a party, because those rights and duties exceeded those authorized by the Texas Family Code. The court noted that Texas Family Code �107.021(2) allows trial courts to appoint amicus attorneys in suits affecting the best interests of a child only if “the court finds that the appointment is necessary to ensure the determination of the best interests of the child.” The court found that Ellis’ appointment was based on incorrect premises: that Collins lacked the legal right to assert S.E.E.’s claims and that he acted in a manner that failed to protect S.E.E.’s best interests. But the court found that Collins had the legal right to assert S.E.E.’s claims, and it could find no evidence that the attorneys he hired acted in a manner that failed to protect S.E.E.’s best interests. In sum, the court concluded that the trial court abused its discretion by ordering Collins to cease prosecuting S.E.E.’s claims as her next friend and by ordering the amicus attorney to act as S.E.E.’s next friend, to hire counsel to represent her, and to be paid for services connected with the various wrongful death suits. OPINION:Guzman, J.; Yates, Fowler and Guzman, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.