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IN THE
TENTH COURT OF APPEALS
 

No. 10-92-278-CV

Â Â Â Â Â ARMS SPAFARD CHAPMAN,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â v.

Â Â Â Â Â ANGELA RENEE BURTON CHAPMAN,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
 

From the 19th District Court
McLennan County, Texas
Trial Court # 89-3882-1,2
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

O P I N I O N
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â Angela Chapman instituted this action to terminate Arms Chapman's parental rights with
regard to their child, W.A., alleging that termination of the parent-child relationship was in the
best interest of the child and that Arms had failed to support the child in accordance with his
ability during a period of one year ending within six months of the date of the filing of the
petition.
  In a non-jury trial, the court found that Arms (1) voluntarily left the child alone or in
the possession of another without providing adequate support of the child and remained away for
a period of at least six months; and (2) failed to support the child in accordance with his ability
during a period of one year ending within six months of the date of the filing of the petition.  The
court further found that termination of the parent-child relationship was in the best interest of the
child.  As a result of these findings, the court entered a decree of termination from which Arms
now appeals.  Because the court failed to appoint a guardian ad litem to represent the interests of
the child, and because the interests of the child were not adequately represented by a party to the
suit whose interests were not adverse to those of the child, we reverse the decree of termination.
Â Â Â Â Â Â In point six Arms contends that the court erred in failing to appoint a guardian ad litem to
represent the child.  Section 11.10(a) of the Texas Family Code provides:
  (a) In any suit in which termination of the parent-child relationship is sought, the court
or a master shall appoint a guardian ad litem to represent the interests 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 or a master finds that the interests of the child will be represented
adequately by a party to the suit and are not adverse to that party.


Â Â Â Â Â Â Angela argues that, because Arms failed to request findings of fact pursuant to Rule 296 of
the Texas Rules of Civil Procedure, a finding "that the interests of the child will be represented
adequately by a party to the suit and are not adverse to that party" should be presumed in support
of the judgment.
  The mandatory finding required by section 11.10(a) is not, however, the type
of finding contemplated by Rule 296, which applies to appellate review of a non-jury trial on the
merits.
  Furthermore, the findings necessary to support the judgment in this caseâa decree of
terminationâare the findings related to the best interest of the child and Arm's failure to support
the child in accordance with his ability.  It is the failure to comply with a mandatory statute, not
the absence of findings necessary to support the judgment, that requires reversal.

Â Â Â Â Â Â The trial court in this case neither appointed a guardian ad litem nor found "that the interests
of the child will be represented adequately by a party to the suit and are not adverse to that party." 
Nor could such a finding have been made under the facts of the case.
  Neither Arms nor Angela
could adequately represent the interests of the child because each party was strongly advocating
his or her own interests.
  It would be a rare situation where the trial court could properly find that
a guardian or attorney ad litem is not needed when one parent is trying to terminate the other
parent's parental rights.
  Because there was no party in this case whose primary duty was to
protect the interests of the child, we sustain point of error six.
Â Â Â Â Â Â We reverse the judgment and remand the cause for a new trial.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â BOBBY L. CUMMINGS
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Before Chief Justice Thomas,
Â Â Â Â Â Â Â Â Â Â Justice Cummings, and
Â Â Â Â Â Â Â Â Â Â Justice Vance
Reversed and remanded
Opinion delivered and filed April 21, 1993
Publish

 section
143.057(j) can only mean that the right of appeal is available to both sides.
Id. at 608 n.1 (internal citations omitted).  Section 143.015 provides, ÂIf a fire fighter
or police officer is dissatisfied with any commission decision, the fire
fighter or police officer may file a petition in district court asking that the
decision be set aside.ÂÂ  Tex. Loc. GovÂt Code Ann.
Â§Â 143.015 (Vernon 1999).
Â Â Â Â Â  Several
other cases assume without addressing the question that a city can appeal under
Section 143.057(j).Â  See, e.g., City of San Antonio v. Longoria, No. 04-04-00063-CV,
2004 Tex. App. LEXIS 8426, at *2-*3, *4 (Tex. App.ÂSan Antonio Sept. 22, 2004,
no pet. h.) (mem. op.); Nuchia v. Tippy, 973
S.W.2d 782, 786 (Tex. App.ÂTyler 1998, no pet.); Gardner v.
City of Garland, No. 05-93-01535-CV, 1994 Tex. App. LEXIS 3957, at *4-*6 (Tex. App.ÂDallas
Aug. 31, 1994, no pet.) (not designated for publication).
Â Â Â Â Â  The
sole case on which the majority relies is City
of Houston v. Clark, 142 S.W.3d 350 (Tex. App.ÂHouston [14th Dist.] 2004, pet. filed).Â  That case interprets Local Government Code Section
143.1016(j), which is worded the same as Section 143.057(j), but governs
municipalities with a population of 1,500,000 or more.Â  See
Tex. Loc. GovÂt Code Ann.
Â§Â§Â 143.101, 143.1016(j) (Vernon 1999).Â  Clark holds, Âwe can find nothing in the statute to
suggest that the municipality .Â .Â . has any right of appeal.ÂÂ  Clark at 352.Â 
The 14th
  Court
cites several instances where Local Government Code Chapter 143 expressly gives
the police officer the right of appeal, and concludes that the Legislature did
not intend to do so in Section 143.1016(j).Â 
Id. at 353 & n.3.Â  Those instances are better understood as
showing that the Legislature knew how to limit appeals to the police officer
when it intended to do so, but did not intend to do so in Section 143.1016(j)
or thus in Section 143.057(j).Â  See Byrd, 97 S.W.3d at 608 n.1.
Â Â Â Â Â  We
should hold that we have jurisdiction, and address the merits of the case.Â  Because the majority does not, I respectfully
dissent.
Â Â Â Â Â  Finally,
I must also address the process under which the majorityÂs opinion and
therefore my dissenting opinion are being issued.Â  The normal procedure for this Court is to
issue opinions on Wednesday of each week.Â 
We did so this week on October 27, 2004.Â  Thus,
under our normal procedure, no opinions would issue again until November 3,
 2004, the day after the
general election.Â  However, the majority
opinion and therefore this dissenting opinion are being issued on Friday,
 October 29, 2004.Â  They are being treated as an exception to the
regular procedures. Â Though I have tried,
I have been unable to obtain an explanation for the need or purpose of issuing
opinions in this case at this time.Â 
Likewise, I was unable to obtain an explanation for a change in the
designation of authorship of the majority opinion after the opinion was
circulated.Â  I join neither irregularity.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed October
 29, 2004
[CV06]
