Opinion
No. 07-17-00407-CV
03-12-2018
IN THE INTEREST OF M.F., A CHILD
On Appeal from County Court at Law No. 3 Lubbock County, Texas
Trial Court No. 2016-519 ,932, Honorable Kara L. Darnell, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
This case involves the termination of parental rights to the child, M.F., and appointment of the Texas Department of Protective and Regulatory Services as the child's sole managing conservator. After a bench trial, the associate judge signed an Order of Termination on October 19, 2017, that terminated M.F.'s and C.M.'s parental rights to the child and appointed the Department as her sole managing conservator. Appellant, A.S., is the paternal grandmother of M.F. A.S. filed an intervention seeking conservatorship. The referring trial court signed an order denying A.S.'s request for de novo hearing on November 14, 2017. A.S. raises three issues on appeal. The Department concedes that A.S. is entitled to a de novo hearing before the referring court. Having reviewed the record and found that A.S.'s request for de novo hearing was timely, we reverse and remand for a de novo hearing.
To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. 9.8(b).
M.F. (father) and C.M. (mother) did not appeal.
Factual and Procedural Background
In December 2016, the Department filed a first amended petition seeking conservatorship and termination of parental rights. Following an adversary hearing, the Department was appointed temporary managing conservator of M.F. In February 2017, A.S. intervened seeking to be appointed the child's managing conservator, a joint managing conservator with the Department, or possessory conservator with possession and access.
The final hearing before the associate judge was held on October 5, 2017. A.S. was present for the initial portion of the hearing. She agreed to post-termination contact and an open adoption agreement during a recess. A.S. did not appear when the hearing resumed after the recess.
At the conclusion of the final hearing, the associate judge announced the substance of her ruling: terminating M.F.'s parental rights on grounds of his voluntary affidavit of relinquishment as agreed; terminating C.M.'s parental rights; naming the Department as M.F.'s permanent managing conservator; and approving the post-termination contact as agreed between M.F., A.S., and the Department. It is undisputed that A.S. was no longer present when the associate judge announced her decision.
The associate judge signed an Associate Judge's Report and Order on October 5, 2017, which states that A.S. attended the initial portion of the hearing but did not appear after the recess, and indicates that notice of the substance of the report and order was given to the parties on that date "in open court"—by checking that notice option on the report. The associate judge's report also indicates that the substance of the report was not given to the parties by "personal delivery," "certified mail," or "facsimile"—by not checking those notice options.
On October 19, 2017, the associate judge signed an Order of Termination, which also states that A.S. appeared for the initial portion of the final hearing, but did not appear after a recess. On October 20, 2017, A.S. filed a Request for De Novo Hearing in which she specified the issues of conservatorship, possession, and access to be reviewed by the referring court and requested the referring court to set a de novo hearing within thirty days.
After considering the parties' written pleadings and argument in a November 14, 2017, hearing on A.S.'s entitlement to a de novo hearing, the trial court signed an Order Denying Request for De Novo Hearing on December 21, 2017. In its findings of fact and conclusions of law, the trial court found that: (1) "notice of the substance of the report may be given to the parties in open court, by oral statement"; (2) A.S. "was present at the Final Hearing on October 5, 2017 and participated in the proceedings during the morning and was present and signed the two agreements that date"; and (3) "[t]he request for de novo was untimely" because "[t]he proper date to request de novo was three working days from October 5, 2017."
Applicable Law
A party who timely requests a de novo hearing before the referring court is entitled to a hearing. In re Talley, No. 07-15-00198-CV, 2015 Tex. App. LEXIS 6268, at *4 (Tex. App.—Amarillo June 22, 2015, orig. proceeding) (mem. op.); see TEX. FAM. CODE ANN. § 201.015 (West Supp. 2017). "The referring court's failure to hold a de novo hearing after a notice of appeal is timely filed is mandatory and presumed harmful." In re Talley, 2015 Tex. App. LEXIS 6268, at *4; Phagan v. Aleman, 29 S.W.3d 632, 635 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (op. on reh'g).
Further references to provisions of the Texas Family Code will be by reference to "section ___" or "§ ___."
After a hearing, "the associate judge shall provide the parties participating in the hearing notice of the substance of the associate judge's report, including any proposed order." § 201.011(b) (West 2014). "Notice may be given to the parties: (1) in open court, by an oral statement or a copy of the associate judge's written report, including any proposed order; (2) by certified mail, return receipt requested; or (3) by facsimile transmission." § 201.011(c). Under subsection 201.015(a), a party may request a de novo hearing before the referring court 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 as provided by Section 201.011." § 201.015(a)(1).
Discussion
The record does not support the trial court's finding that A.S.'s time to request a de novo hearing began on the October 5, 2017, date of the final hearing before the associate judge. Rather, it demonstrates A.S.: (1) was not present when the associate judge orally announced her ruling after the hearing; and (2) was not present to receive the substance of the associate judge's report after the hearing in the form of the written Associate Judge's Report and Order which states that notice of its substance was given to the parties in open court.
In this case, the day after the associate judge signed a proposed Order of Termination, A.S. filed a Request for De Novo Hearing, specifying the issues to be presented to the referring court. A.S.'s October 20, 2017, request for a de novo hearing was clearly within three working days after the associate judge's proposed Order of Termination was signed on October 19, 2017. The trial court abused its discretion by denying A.S.'s request for a de novo hearing on the basis that it was not timely.
Conclusion
Having reviewed the record and applicable case law, we find that the Department's concession to A.S.'s third issue is well-taken. We reverse and remand for a de novo hearing.
Because issue three is dispositive of this appeal, it is not necessary to address A.S.'s first two issues. TEX. R. APP. P. 47.1.
Per Curiam