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J.V. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

March 1, 2017

J. V., Appellant
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT NO. C2014-0553D, HONORABLE JACK H. ROBISON, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         In this restricted appeal, J.V. (Mother) challenges the district court's judgment terminating her parental rights. Mother timely requested a de novo hearing with the district judge after an associate judge entered a termination order following a trial. The district judge signed the final order of termination without conducting the requested de novo hearing. The Department concedes that Mother has met the requirements of her restricted appeal. We agree, and we will reverse and remand the case to the district court for further proceedings.

         BACKGROUND

         The Department filed suit seeking to terminate Mother's parental rights to her four children. The parties tried the case before an associate judge, and the associate judge signed an order terminating Mother's parental rights on March 3, 2016. See Tex. Fam. Code §§ 201.005 (allowing parental-termination cases to be referred to associate judge), .007 (establishing powers of associate judge), .011 (requiring associate judge to send signed report including any proposed order to referring court). On March 7, 2016, Mother filed a written request for a de novo hearing before the district judge. See id. § 201.015 (providing that party may request de novo hearing not later than third working day after date that party received notice of substance of associate judge's report or of the rendering of temporary order). Despite Mother's timely request for a de novo hearing, the referring court signed the judgment adopting the report and order proposed by the associate judge one week after Mother filed her request, on March 14, 2016. Inexplicably, a de novo hearing was also scheduled for a date about three months later, June 13, 2016.

         On April 28, 2016, the Department filed a motion to strike Mother's request for a de novo hearing due to want of jurisdiction. On May 18, 2016, the referring court signed an order dismissing Mother's request for de novo hearing. The referring court concluded that it lacked jurisdiction because the referring court's adoption of the associate judge's report had resulted in a final appealable judgment. Mother filed this restricted appeal on September 9, 2016.

         ANALYSIS

         Texas Rule of Appellate Procedure 30 authorizes a party who did not participate in the hearing that resulted in the complained-of judgment to file a restricted appeal past the time a notice of appeal may ordinarily be filed. Tex.R.App.P. 30. "To sustain a proper restricted appeal, the filing party must prove: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in the judgment complained of, and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record." Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). We must liberally construe the non-participation requirement in favor of the right to appeal. Id.

         The issues in this case are whether Mother participated in the hearing that resulted in the complained-of judgment and whether error is apparent on the face of the record. Although the State has conceded these issues, we will analyze whether it is appropriate for us to reverse and remand the case. This Court has previously held in a similar factual situation that if a timely request for de novo hearing has been filed, but "the referring court renders judgment without holding a de novo hearing, the 'hearing' that leads to the judgment occurs when the referring court considers the matter." Attorney Gen. of Tex. v. Orr, 989 S.W.2d 464, 468 (Tex. App.-Austin 1999, no pet.). The Court reasoned that the de novo hearing "is not a traditional appeal, but a new and independent action characterized by all the attributes of an original civil action, " and that the filing of a request for a de novo hearing effectively nullifies the earlier proceedings. Id. at 467-68. Consequently, the Court concluded that because the referring court makes an independent determination in the new proceeding, the "hearing" resulting in the final judgment occurs when the referring court considers the associate judge's proposed judgment without holding a de novo hearing. Id.; see also Phagan v. Aleman, 29 S.W.3d 632, 634-35 (Tex. App.-Houston [1st Dist.] 2000, no pet.) (following Court's reasoning in Orr and concluding wife did not participate in "hearing that resulted in the judgment"). As in the Orr and Phagan cases, Mother did not participate in the "hearing that resulted in the judgment" in this case. Consequently, we may consider her restricted appeal.

         We next consider whether error is apparent on the face of the record. See Tex. R. App. P. 30; see also Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). The Family Code provides that after a timely request for a notice of hearing is filed, the referring court "shall hold a de novo hearing." Tex. Fam. Code § 201.015(f). The statutory requirement that the referring court "shall hold a hearing" is mandatory. Orr, 989 S.W.2d at 469. We presume that the failure to hold the requested hearing is harmful. Id. Accordingly, the district court's error is apparent on the face of the record. See id.; see also Phagan, 29 S.W.3d at 635. We sustain Mother's single issue on appeal.

         CONCLUSION

         We hold that Mother satisfied the requirements of her restricted appeal and that the district court erred by adopting the associate judge's report and proposed order without first conducting the requested de novo hearing. We reverse the district court's order ...


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