Summary
noting that, in the de novo hearing, appellant failed to object when the trial court stated it would be reviewing the reporter's record from the underlying hearing and concluding that the appellant could not complain of the trial court's reliance on that record for first time on appeal
Summary of this case from In re J.R.Opinion
No. 04-17-00175-CV
04-11-2018
IN THE INTEREST OF C.O. and M.O., Children
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA01646
Honorable Peter Sakai, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
This is an accelerated appeal from the district court's order terminating appellant father's ("Father") parental rights to his children, C.O. and M.O. On appeal, Father argues the trial court erred in terminating his parental rights because the trial court did not conduct a full, adversarial de novo hearing and relied solely the reporter's record from the hearing conducted before the associate judge. Father also asserts the evidence produced by the Texas Department of Family and Protective Services ("the Department") at the de novo hearing was legally and factually insufficient to support the trial court's findings under section 161.001(b)(1)(E) and (O) of the Texas Family Code ("the Code"). We affirm the trial court's order terminating Father's parental rights to C.O. and M.O.
BACKGROUND
On March 20, 2017, the associate judge signed an Associate Judge's Report, terminating Father's parental rights to his twin children, C.O. and M.O. In the report, the associate judge found Father: (1) engaged in conduct or knowingly placed his children with persons who engaged in conduct that endangered the children's physical or emotional well-being; (2) voluntarily, and with knowledge of the pregnancy, abandoned the mother during her pregnancy and failed to provide adequate support for the children; and (3) failed to comply with provisions of a court order that set out the actions necessary for Father to obtain the return of his children. See TEX. FAM. CODE ANN. § 161.001(b)(1) (E), (H), and (O) (West Supp. 2017). The associate judge further found termination of Father's parental rights would be in the children's best interests. Three days later, Father timely filed a request for a de novo hearing to the referring court in accordance with section 201.015(a) of the Code. See id § 201.015(a)(1) (describing procedure for requesting de novo hearing). That same day, Father also filed a notice of appeal in this court.
In general, an associate judge's report may be considered a final, appealable termination order if it disposes of all the issues and parties in the case. In re E.K.G., 486 S.W.3d 614, 617-18 (Tex. App.—San Antonio 2016, no pet.); In re A.R.G., 420 S.W.3d 841, 842 (Tex. App—San Antonio 2013, no pet.) (citing In re A.W., 384 S.W.3d 872, 873-74 (Tex. App.—San Antonio 2012, no pet.)). However, "an associate judge's recommendation is not a final, appealable order when a request for a de novo hearing is timely filed." In re C.R.-A.A., No. 04-16-00587-CV, 2016 WL 6238237, at *1 (Tex. App.—San Antonio Oct. 26, 2016, no pet.) (mem. op.); see Balachandrachari v. Tang, No. 05-15-00889-CV, 2016 WL 3971323 (Tex. App.—Dallas July 22, 2016, no pet.) (mem. op.) (stating Associate Judge's Report not final because appellant timely filed de novo appeal of report).
A de novo hearing was subsequently held by the Bexar County District Court on March 31, 2017. At the hearing, Father announced not ready, and the Department argued Father's filing of a notice of appeal waived his right to the de novo hearing. The district court took judicial notice that both a timely request for a de novo hearing and a notice of appeal to this court had been filed. The district court then announced it would defer the hearing and await instructions from this court before conducting the de novo hearing. Thereafter, on July 28, 2017, this court abated the appeal and remanded the cause back to the district court, ordering it to hold the de novo hearing. See id. § 201.015(f) (providing that after timely request for de novo hearing, referring court shall hold de novo hearing).
On August 24, 2017, the district court held the de novo hearing. At the de novo hearing, all the parties, including the attorney ad litem and guardian ad litem for the children, appeared and announced ready. The district court took judicial notice of the associate judge's report, noting it was a rendition of a final judgment terminating Father's parental rights to C.O. and M.O. The district court further noted it was holding the de novo hearing in accordance with this court's July 28, 2017 order. The district court then asked the parties if they wanted to offer any evidence. Counsel for Father and the Department each declined and rested. Thereafter, the attorneys proceeded with argument to the district court. After stating it would take time to read the transcript — which consisted of 500 pages — from the hearing before the associate judge, the district court took the case under advisement. Ultimately, the district court rendered an order terminating Father's parental rights based on the grounds stated by the associate judge. Father then appealed.
ANALYSIS
On appeal, Father raises three issues challenging the district court's order of termination. In two related issues on appeal, Father argues the district court erred in terminating his parental rights because it did not conduct a full, adversarial de novo hearing and relied solely on the reporter's record from the hearing before the associate judge. In his third appellate issue, Father contends the evidence produced by the Department was legally and factually insufficient to support the trial court's findings under section 161.001(b)(1)(E) and (O) of the Code.
De Novo Hearing
As indicated above, in two related issues, Father contends the district court did not conduct a proper de novo hearing because it relied solely on the reporter's record from the hearing before the associate judge. According to Father, because de novo hearings are new and independent actions, the Department was required to produce evidence at the de novo hearing in support of its contention that Father's parental rights should be terminated. Father argues that by basing its case solely on the record from the prior hearing, the Department failed to meet its burden of proof. As part of his argument, Father also contends the district court's action will potentially cause a backlog of cases because to receive a proper de novo hearing, parties will have to request de novo jury trials; otherwise, de novo hearings "will consist simply of the trial court reading the transcript from the prior hearing — rather than a new trial altogether."
Applicable Law
The Code authorizes a trial court to refer "any aspect of a suit over which the court has jurisdiction" to an associate judge. Id. § 201.005; In re R.R., 537 S.W.3d 621, 622 (Tex. App.—Austin 2017, no pet). The Code further provides that when a matter is referred to an associate judge, the associate judge may conduct a hearing, hear evidence, make findings of fact, and recommend an order to be rendered. TEX. FAM. CODE ANN. § 201.007; see id. § 201.204 (addressing powers of associate judge in child-protection case); R.R., 537 S.W.3d at 622. After an associate judge makes a recommendation or signs a temporary order, a party may request a "de novo hearing before the referring court" no later than the third working day after the party receives the associate judge's recommendation or order. TEX. FAM. CODE ANN. § 201.015(a),(b); see id. § 201.011; R.R., 537 S.W.3d at 622; In re A.B., No. 04-11-00741-CV, 2012 WL 2126887, at *1 (Tex. App.—San Antonio June 13, 2012, no pet.) (mem. op.) ("Any issues appealed from an associate judge's ruling are heard de novo before a district court.").
A de novo hearing "is a new and independent action" on the issues raised by the party requesting the hearing. R.R., 537 S.W.3d at 622; A.B., 2012 WL 2126887, at *1. In other words, "it begins an entirely new process" as to the issues being raised. Attorney General v. Orr, 989 S.W.2d 464, 467-68 (Tex. App.—Austin 1999, no pet.); see In re A.A.T., No. 13-16-00269-CV, 2016 WL 8188946, at *2 (Tex. App.—Corpus Christi Aug. 25, 2016, no pet.) (mem. op.) (characterizing de novo hearing as having all attributes of original civil action to extent of issues raised therein). "[T]he party with the burden of proof, having prevailed before the associate judge, must still carry her burden in a de novo hearing before the [referring] court." A.B., 2012 WL 2126887, at *1.
In general, the referring court's judgment must be based solely on the evidence presented at the de novo hearing. Id. Section 201.015(c) of the Code provides that a party may present witnesses on the issues specified in the request for the hearing. TEX. FAM. CODE ANN. § 201.015(c). However, section 201.015(c) also provides that the referring court may consider the reporter's record from the hearing before the associate judge. Id.
Application
In this case, the district court, acting as the referring court, held a hearing on Father's request for a de novo hearing, and all the parties appeared. The district court took judicial notice of the associate judge's report, noting it was a rendition of a final judgment terminating Father's parental rights to C.O. and M.O. The district court asked the parties if they wanted to offer any evidence, but counsel for each party declined and rested. The district court then proceeded to hear the legal arguments of both parties. Thereafter, the district court admitted the associate judge's report into evidence and stated it would be reviewing the reporter's record from the underlying hearing before rendering its final order. At no point did Father object to the district court's decision to review the reporter's record from the underlying hearing or argue the Department was required to produce evidence at the de novo hearing — either evidence it had previously produced at the prior hearing or additional evidence.
"In order to preserve a complaint for appellate review, the complaint must be made by a timely request, objection, or motion and with sufficient specificity to notify the district court of the complaint and obtain an adverse ruling." A.B., 2012 WL 2126887, at *2 (citing TEX. R. APP. P. 33.1(a)). Otherwise, the complained of error is waived and cannot be appealed. Id. Here, as pointed out above, Father failed to object to the district court's reliance on the reporter's record from the underlying hearing or argue the Department failed to produce any evidence at the de novo hearing. Accordingly, we hold Father cannot complain for the first time on appeal that the district court's reliance on the reporter's record from the underlying hearing was improper. See id. (holding that because appellant did not object to either district court's review of underlying record or district court's conduct during de novo hearing, appellant waived complaints that district court's conduct was improper).
Moreover, section 201.015 does not require the Department, at a de novo hearing, to reproduce evidence it previously produced at the underlying hearing or produce additional evidence. Rather the statute provides:
In the de novo hearing before the referring court, the parties may present witnesses on the issues specified in the request for hearing. The referring court may also consider the record from the hearing before the associate judge, including the charge to and verdict returned by a jury.TEX. FAM. CODE ANN. § 201.015(c) (emphasis added). Father, however, contends this "permissive language in subsection (c) does not give the trial court the authority to consider only the transcript from the prior hearing." We disagree. The permissive language of section 201.015(c) gives a party the option to present witnesses should the party decide to do. R.R., 537 S.W.3d at 624 ("Occasionally, the parties decide not to call witnesses to testify at the de novo hearing, relying on the evidence produced in the hearing before the associate judge alone."); see In re N.M., No. 07-16-00439-CV, 2017 WL 1908588, at *2 (Tex. App.—Amarillo May 9, 2017, pet. denied) (mem. op.) (affirming district court's order of termination, which was based on transcript from underlying hearing conducted by associate judge). Thus, in the event a party chooses not to call witnesses or produce evidence, it follows that contrary to Father's position, a trial court may rely solely on the transcript from prior hearing. See R.R., 537 S.W.3d at 624; N.M., 2017 WL 1908588, at *2. In fact, section 201.015(c) "clearly vests the trial court with the authority to consider the record of the hearing before the associate judge." In re R.S.-T., 522 S.W.3d 92, 108 (Tex. App.—San Antonio 2017, no pet.). We therefore hold the trial court did not err by relying solely on the reporter's record from underlying hearing when rendering the termination order. Accordingly, Father's first and second issues are overruled.
Currently, a case is pending before the Texas Supreme Court in which the petitioner complains the referring court erred by denying petitioner's request that the Department produce all evidence, including evidence previously produced at the underlying hearing, at the de novo hearing. See Petition for Review, at 2-3, In re X.H., No. 17-0480 (pet. filed June 16, 2017). In that case, the petitioner had requested that the Department produce all of its evidence in support of its case rather than rely only on the prior hearing record for such evidence. Id. The trial court denied the request and limited the Department's production of evidence, if any, to new evidence. See id. That case is distinguishable. Here, Father did not request that the Department reproduce the evidence it previously produced at the underlying hearing, nor did the trial court limit or prohibit the Department from producing any evidence.
Statutory Termination Grounds
In his final issue, Father challenges the sufficiency of the evidence in support of the trial court's findings under subsections E and O of section 161.001(b)(1) of the Code. In support of his contention, Father reasserts his previous argument, stating the district court failed to conduct a proper de novo hearing by relying solely on the underlying transcript from the hearing conducted by the associate judge.
Standard of Review and Applicable Law
To terminate a parent's right to his or her children, a court must find by clear and convincing evidence that the parent committed at least one act prohibited by section 161.001(b)(1) of the Code and termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b). In cases where the trial court terminates the parent-child relationship on multiple grounds under section 161.001(b)(1), we may affirm on any one ground because, in addition to finding that termination is in the child's best interest, only one predicate violation under section 161.001(b)(1) is necessary to support a termination order. In re D.J.H., 381 S.W.3d 606, 611-12 (Tex. App.—San Antonio 2012, no pet.) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)).
Application
The crux of Father's sufficiency complaint centers on his allegation that the district court did not conduct a proper de novo hearing because it relied solely on the record from the underlying hearing and it did not require the Department to produce evidence in support of termination at the de novo hearing. As indicated above, however, at no point did Father object to the district court's consideration of only the record from the underlying hearing conducted by the associate judge, nor did Father argue the Department was required to produce evidence at the de novo hearing. Moreover, as we held above, section 201.015(c) of the Code statutorily authorizes the district court to consider the record from the hearing before the associate judge, and nothing in section 201.015(c) requires the Department to produce evidence in support of its case at the de novo hearing. See TEX. FAM. CODE § 201.015(c); R.R., 537 S.W.3d at 624; R.S.-T., 522 S.W.3d at 108. N.M., 2017 WL 1908588, at *2.
Additionally, as noted above, "[o]nly one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." A.V., 113 S.W.3d at 362; see D.J.H., 381 S.W.3d at 611-12. Here, the referring court ordered that Father's parental rights be terminated based on the grounds previously stated by the associate judge, who found by clear and convincing evidence that Father committed acts prohibited by subsections E, H, and O of section 161.001(b)(1). Other than his contention that the trial court failed to conduct a proper de novo hearing, Father does not challenge the sufficiency of the evidence supporting subsection H. Accordingly, because the unchallenged finding under subsection H is sufficient to support a judgment of termination, we overrule Father's third issue. See A.V., 113 S.W.3d at 362; D.J.H., 381 S.W.3d at 611-12.
CONCLUSION
Based on the foregoing, we affirm the trial court's order of termination.
Marialyn Barnard, Justice