Brian Quinn Chief Justice

On Appeal from the 140th District Court Lubbock County, Texas
Trial Court No. 2014-513 ,365, Honorable Jim Bob Darnell, Presiding

MEMORANDUM OPINION

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

L.M. and G.G. appeal the order terminating their parental rights to N.M. and K.M. Initially, their appellate counsel filed an Anders brief; however, this court identified a potential arguable issue and abated the matter back to the trial court for appointment of counsel and briefing. Appellant's counsel has filed an appellate brief wherein a single issue has been raised. That issue concerns the district court's error in failing to make additional findings on the record regarding the parents' termination and thereby denying them de novo review. We affirm.

Both L.M. and G.G. timely requested a de novo hearing of the associate judge's finding that termination was proper. In their request, the parents questioned whether the evidence was factually and legally sufficient to terminate their parental rights pursuant to Texas Family Code § 161.001. The trial court set the matter for a hearing and the following occurred at that hearing:

MS. RATLIFF [the Department's counsel]: And on behalf of the Department also present is the caseworker, Janet Orta, and CASA is also present.

MR. WATSON [L.M. and G.G.'s counsel]: Cardine Watson here on behalf of [L.M. and G.G.], the parents.

THE COURT: The Court had requested that the court reporters prepare the record that was heard by Judge Hart. Mr. Watson indicated to the Court after the Court had reviewed that that he didn't think there would be any additional evidence offered as far as a de novo. So, is there any additional evidence or testimony that anybody feels the Court needs to be aware of?

MR. WATSON: Judge, that is still my position. In reference to my clients, contact with my clients has been sporadic. I spoke with [G.G.] probably about two or three weeks ago, and she was supposed to get ahold of me, schedule a time to come in and meet with me to discuss the de novo and her second case, which I believe is going to be under this cause, and she never called me back to schedule that appointment to come in and speak with me. And all the numbers that I had for them, they're no longer working. And so I believe September 1st they didn't show up. We had a permanency hearing on Monday the 7th. Even though they weren't required to be there, they had notice of the de novo, so I would have assumed they would have -- wanted to be there. They were not there and they're not here today. So, I wouldn't have a witness to call today to put on any additional evidence, Judge.

MS. RATLIFF: The Department would not have any additional evidence to present today. I would also add that the caseworker has had very minimal contact with the parents since September 1st, and any additional evidence

from September 1st forward would only substantiate the prior -- the findings of Judge Hart in this case.

THE COURT: Based on the Court's review of the prior testimony, the Court will deny the de novo appeal at this time. And we'll be adjourned.

Issue, Law and Analysis

L.M. and G.G. contend that the trial court "erred in summarily denying the de novo hearing request because there was no new evidence. The referring court did not use [the appropriate] standard for conducting a de novo hearing." We disagree.

Statute permits one to seek a de novo hearing from findings rendered by an associate judge. See TEX. FAM. CODE ANN. § 201.015(a)(1) & (2) (West Supp. 2016) (stating that a party may request a de novo hearing before the court that referred the cause to the associate judge by filing a written request not later than the third working day after the date the party receives notice of 1) the substance of the associate judge's report or 2) the rendering of the temporary order). That hearing occurs before the trial court referring the matter to the associate judge. Id. § 201.015(a). More importantly, nothing in § 201.015 of the Family Code suggests that a request for a de novo hearing is subject to the approval of the court that would conduct the new hearing.

Next, in making their request under § 201.015(a), the parties must specify the issues that will be presented. Id. § 201.015(b). They will then have the opportunity to present witnesses on those specified issues. Id. § 201.015(c). Yet, that is not the only evidence which the court may entertain upon conducting the de novo proceeding. Statute also permits it to "consider the record from the hearing before the associate judge, including the charge to and verdict returned by a jury." Id.

Here, a de novo hearing was timely requested by L.M. and G.G. And, as previously stated, the issues designated in their request per § 201.015(b) involved the legal and factual sufficiency of the evidence underlying the associate judge's findings to terminate.

A hearing on the request was eventually convened, though not within the thirty days provided by statute. Id. § 201.015(f) (stating that [t]he referring court, after notice to the parties, shall hold a de novo hearing not later than the 30th day after the date on which the initial request for a de novo hearing was filed with the clerk of the referring court"). At the proceeding, both counsel for L.M. and G.G. and the Texas Department of Family and Protective Services represented that they had no additional evidence to present. By that time, the trial court had already obtained a transcript of the hearing or trial conducted by the associate judge. And, given the representations of counsel, the district court informed them that it would "deny the de novo appeal," "[b]ased on the Court's review of the prior testimony." Then, it ordered termination of the parental relationship via the November 9th decree.

What the district court meant in saying it would "deny the de novo appeal" is unclear. Again, nothing in § 201.015 of the Family Code indicates that the request for a de novo hearing is subject to approval by any jurist.

Yet, it is clear that the district court had reviewed the transcript of the associate judge's hearing before deciding to terminate the parent-child relationship. It is also clear that L.G. and G.G. were utilizing the de novo hearing as a means of questioning the evidence underlying the associate judge's finding that termination was warranted. The statement of issues in their request for a de novo hearing illustrates as much. So, in denying the de novo hearing after reviewing the prior testimony, it seems as though the district court was actually rejecting the contention that insufficient evidence supported the decision to terminate. In effect, it was determining that termination was warranted given the evidence appearing in the transcript of the associate judge's hearing, which happened to be the very evidence statute allowed it to consider. This coupled with the facts that 1) neither L.G. nor G.G. questioned the sufficiency of that evidence before us, 2) the district court afforded all the litigants opportunity to present additional evidence, 3) none of the litigants had additional evidence to present, and 4) none of the litigants objected to the manner in which the district court conducted the de novo hearing, we cannot say that either L.G. or G.G. were harmed by the court's "deny[ing] the de novo appeal" and relying on the evidence appearing in the transcript of the associate judge's hearing to ultimately terminate their parental rights.

In short, and contrary to appellants' contentions, the district court rendered findings to evince its reason for terminating their parental rights. Those findings appeared in its order of termination signed on November 9, 2016, and were based upon the evidence presented in the earlier trial before the associate judge. The road traversed by the district court may appear unique but it led to a lawful destination. Therefore, the issue posed by L.G. and G.G. is overruled, and the order of termination is affirmed.

Brian Quinn

Chief Justice