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In re C.H.S.

Court of Appeals of Texas, Seventh District, Amarillo

December 20, 2017

IN THE INTEREST OF C.H.S., A CHILD

         On Appeal from the County Court at Law No. 1 Lubbock County, Texas Trial Court No. 2007-538, 917, Honorable Mark Hocker, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          James T. Campbell Justice

         In this private parental-rights termination case, R.C.S. (the father) appeals the trial court's final order terminating his parent-child relationship with C.H.S., and appointing appellee H.L.H. (the mother) sole managing conservator of C.H.S.[1] We will modify the final order to reduce the amount of attorney's fees awarded the mother's attorney and affirm that aspect of the final order as modified and we will affirm the trial court's compensatory award to the mother. Otherwise, we will dismiss the appeal as moot.

         Background

         The father and the mother married in 2005, C.H.S. was born in 2006, and the couple divorced in 2008. The decree appointed them joint managing conservators with the mother granted the exclusive right to designate the child's primary residence. In 2016, the mother moved to terminate the father's parental rights to C.H.S.

         Following the final hearing, the court rendered an order granting the requested termination. It grounded its decision on Family Code predicate grounds (D) and (E) of section 161.001(b)(1) and the finding that termination was in the best interest of C.H.S.[2]The order also awarded attorney's fees of $19, 468.96 to the mother's attorney and the mother was awarded $2, 400 as compensation for time missed from work because of continuances granted the father.

         The father timely filed a notice of appeal and his appellate brief presents seven issues challenging the final order. The mother filed a response brief. On November 28, 2017, the mother filed in this Court a suggestion of the father's death. Attached was a copy of the father's obituary supported by counsel's affidavit, confirming the father died on November 6, 2017.

         Analysis

         Issues Concerning Termination of the Father's Parental Rights

         We jointly address the father's issues one through five which challenge the portion of the trial court's final order terminating his parent-child relationship with C.H.S. Appellate Rule 7.1 provides:

If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court's judgment will have the same force and effect as if rendered when all parties were living. The decedent party's name may be used on all papers.

Tex. R. App. P. 7.1(a)(1). See Tyson v. Tyson, No. 05-98-01811-CV, 2001 Tex.App. LEXIS 578 (Tex. App.-Dallas Jan. 30, 2001, no pet.) (not designated for publication) (noting Rule 7.1 does not dispense with the requirement of an existing actual controversy and generally an appeal will be allowed to proceed on the death of a party only if the judgment affects the parties' property rights as opposed to purely personal rights). The father's issues one through five concern only his personal rights and not his property rights. Because of the father's death, a justiciable controversy concerning the maintenance of his parent-child relationship with C.H.S. no longer exists. "A justiciable controversy is one in which a real and substantial controversy exists involving a genuine conflict of tangible interests and not merely a theoretical dispute." Texas Dep't of Pub. Safety v. Moore,985 S.W.2d 149, 153 (Tex. App.-Austin 1998, no pet.). Without a genuine controversy, our opinion on the merits of issues one through five would be no more than advisory. See Olson v. Comm'n for Lawyer Discipline,901 S.W.2d 520, 522 (Tex. App.-El Paso 1995, no writ) ("When there has ceased to be a controversy between the litigating parties due to events occurring after judgment has been rendered by the trial court, the decision of an appellate court would be a mere academic exercise and the court may not decide the appeal . . . . Stated another way, if a judgment cannot have a practical effect on an existing controversy, the case is moot" (internal citation omitted)); see also In re Marriage of Cain, 223 S.W.3d 503, 505 (Tex. App.-Amarillo 2006, no pet.) (death of appellant rendered issues attacking dissolution of marriage moot); Meyer v. Texas Dep't of Human ...


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