Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the County Court at Law No. 1 Lubbock County,
Texas Trial Court No. 2007-538, 917, Honorable Mark Hocker,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. Campbell Justice
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. 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.
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.
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.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.
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.
Concerning Termination of the Father's Parental Rights
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